Andrews v. Barker Bros. Corp.

• Citation: 73 Cal.Rptr. 284,267 Cal.App.2d 530
• Court: California Court of Appeals
• Decision Date: 21 November 1968
• Parties: Ralph ANDREWS, Plaintiff and Appellant, v. BARKER BROTHERS CORPORATION, a corporation, and Virtue Brothers Manufacturing Co., a corporation, Defendants and Respondents. Civ. 31624.

Page 284

73 Cal.Rptr. 284

267 Cal.App.2d 530

Ralph ANDREWS, Plaintiff and Appellant, v. BARKER BROTHERS CORPORATION, a corporation, and Virtue Brothers Manufacturing Co., a corporation, Defendants and Respondents.

Civ. 31624.

Court of Appeal, Second District, Division 3, California.

Nov. 21, 1968.

As Modified on Denial of Rehearing Dec. 20, 1968.

Hearing Denied Jan. 15, 1969.

George O. West, Los Angeles, and William O'Neil Carlisle, Venice, for appellant.

Betts & Loomis, Ingall W. Bull, Jr., Los Angeles, for respondent Barker Brothers Corp.

Murchison, Cumming, Baker & Velpmen, John Baker and Henry F. Walker, Los Angeles, for respondent Virtue Bros. Mfg. Co.

SHINN, Associate Justice. ^*

Plaintiff Andrews appeals from an adverse judgment in an action for personal injuries sustained when a chair in which he had just seated himself collapsed under his weight. The defendants are Barker Brothers Corporation and Virtue Brothers Manufacturing Company, a corporation.

The complaint was in two causes of action; in the first it was alleged that Barker Brothers (Barker) operated a furniture store; plaintiff was in the Hollywood store for the purpose of buying furniture; there was a chair made of steel tubing and imitation leather on the sales floor; plaintiff sat upon the chair and it collapsed under him; he was thrown to the floor and sustained injuries; the chair had been constructed or assembled in an improper manner and was dangerous for its intended use; Barker was negligent in keeping the chair upon the floor for sale to customers in that it knew or in the exercise of reasonable care should have known that the chair was dangerous for its intended use.

It was alleged in the second cause of action that the chair was manufactured by Virtue Brothers (Virtue) for sale to retail dealers for eventual sale to the public; it was manufactured and assembled in a negligent manner in that it would not support the weight of a person sitting thereon and was incapable of safe use for said purpose; the chair was sold to Barker, was placed on the sales floor; plaintiff, a customer, sat upon the chair; it collapsed and plaintiff was thrown to the floor. Virtue answered, denying negligence and pleading contributory negligence of plaintiff and assumption of risk. Barker answered, denying negligence and pleading the defense of contributory negligence. Barker filed a cross-complaint against Virtue alleging it had purchased the chair from Virtue, the chair had been warranted by Virtue and Virtue had executed a contract to indemnify Barker against loss occasioned by injury to any person resulting from any defect in or failure of the chair. The prayer was for indemnification under the contract.

After the presentation of plaintiff's evidence the court granted the motion of Virtue for a judgment of nonsuit; The case against Barker was submitted to a jury, which rendered a verdict for the defendant.

We consider first the appeal as it relates to the judgment of nonsuit in favor of virtue.

The points on appeal are (a) there was sufficient evidence to invoke the doctrine of res ipsa loquitur against Virtue, and (b) there was sufficient evidence of Virtue's active negligence to go to the jury; also, for the above reasons plaintiff's motion for a new trial should have been granted.

The structure of the chair was sufficiently described by witnesses, and photographs of it after it was collapsed were in evidence. The frame is made of hollow 3/4 inch 20-gauge steel tubing sustaining a flat seat; the front legs are 14 inches apart at the top and incline forward and sidewise to the floor. The rear legs are of tubing bent so the legs incline backward at an angle of 108 degrees to the vertical and outward to the floor. Thus the legs are straddled in all four directions and give the chair stability. There was uncontradicted evidence that the chair would sustain a weight of 500 pounds. There was no evidence of fault in the design of the chair. In the manufacturing process the tubing is bent in dies, the chair is assembled and is tested to see whether the four legs rest solidly on the floor. The rear legs may be one or two degrees off from 108 degrees and, if so, the error is corrected by 'tapping' them with a small hammer. After final inspection the chairs are shipped in pairs in strong cartons. The chair in question was a part of a dinette set of four chairs and a matching table. Barker had had the set for 60 to 90 days. The set had been on Barker's sale floor for sale, and inspection by customers was not restricted.

After plaintiff's accident the chair was taken to the office of Mr. Demirjian who was manager of Barker's Hollywood store. The chair was photographed, remained in the office of Mr. Demirjian for 8 months and was not seen again by Mr. Demirjian.

The chair was not produced at the trial. Photographs of it after it collapsed are in the record. Mr. Manning, Virtue's chief product engineer, testified that the left rear leg was bent forward 30 degrees and outward Plaintiff testified he was in the store as a business invitee and prospective buyer; he looked at the chair and saw nothing wrong with it; he sat upon it in a normal manner.

3 or 4 inches from its original position.

VIRTUE

With respect to the liability of Virtue appellant contends that his evidence was sufficient to render applicable the doctrine of res ipsa loquitur; under that doctrine he made out a case for the jury but the court denied him the benefit of the doctrine. In stating the rule he quotes from Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 689, 162 A.L.R. 1258, as follows: '(1) The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' The first condition was met by the circumstances of the accident; the third condition was met by the uncontradicted testimony of Andrews that he sat on the chair in a normal manner. Appellant argues that the second condition also was met.

In ruling upon the motion of Virtue for a nonsuit the court declined to apply the res ipsa doctrine to the case against Virtue. The court stated: 'THE COURT: * * * I'm saying that when they delivered it to Barker Brothers and the latter put it on the sales floor for the period, it was exposed to acts of third persons. If this were not so and Barker had retained the chair in the warehouse, even if unpacked, Virtue might be said to have retained at least joint control.

'But when they delivered it to Barker Brothers, they lost control of it under the evidence in this case. It was in a sealed package, taken out--at least the two chairs were fitted in, and Barker Brothers lifted it out and put it on the floor. * * *

'Well, I don't see res ipsa applying in this case. So ruling, is there any jury question left that can be properly presented to the jury?'

Appellant interprets the court's remark as holding that res ipsa loquitur could not be applied against Virtue because it did not have control of the chair at the time of the accident. The court did not say this. The court was merely pointing out that when the chair was delivered to Barker it was exposed to acts of third persons. Appellant correctly says that the element of control relates to the time of the occurrence of the condition which was the cause of the accident. Appellant argues that it could be inferred that Virtue was negligent in manufacturing the chair, that Barker negligently failed to detect and eliminate the danger and that res ipsa loquitur may be applied to both where the circumstances are such as to show a probability that all of them were negligent.

Appellant cites and relies upon the rule declared in Ybarra v. Spangard, supra, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, and Cavero v. Franklin General Benevolent Society, 36 Cal.2d 301, 223 P.2d 471, that res ipsa may be invoked against all defendants who at the time of the injury had any control of the body or instrumentalities which might have been the cause of it. Those were cases in which the respective plaintiffs received unusual injuries while under anesthesia during an operation. The application of the doctrine there approved cannot be extended to cover two defendants when the only fact proved by the plaintiff is that at different times each defendant had possession of the instrument that caused the injury. If there was damage to the chair it could have been caused by Virtue or by Barker, but it did not occur while both had possession or control of it.

The applicable rule is that where it is sought to invoke the res ipsa doctrine against one who had passed on to another possession and control of the instrumentality which caused the damage, the plaintiff must produce evidence which is sufficient to show that the instrumentality was Appellant does not question the rule or its applicability to his case against Virtue. He cites Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal.Rptr. 94, a case in which res ipsa was held to be applicable against the manufacturer of a car and the dealer, Harper. The car caught on fire. Appellant says 'plaintiff had produced sufficient evidence to take the question to the jury under Res ipsa: plaintiff essentially proved, As did appellant, that nothing had been done to the automobile since its purchase from Harper which could account for the accident.' (Emphasis added.)

not mishandled or its condition otherwise changed after control was relinquished by the person to whom the doctrine is sought to be...