Canifax v. Hercules Powder Co.
Decision Date | 08 September 1965 |
Citation | 46 Cal.Rptr. 552,237 Cal.App.2d 44 |
Court | California Court of Appeals Court of Appeals |
Parties | Andrew B. CANIFAX, Plaintiff and Appellant, v. HERCULES POWDER CO. et al., Defendants and Respondents. Frank SHIPE, Plaintiff and Appellant, v. HERCULES POWDER CO. et al., Defendants and Respondents. Joan GOOD, Indlvidually and as Guardian ad Litem of Donald M. Cood, Plaintiff and Appellant, v. HERCULES POWDER COMPANY et al., Defendants and Respondents. Dorothy ZUREK, Plaintiff and Appellant, v. HERCULES POWDER COMPANY et al., Defendants and Respondents. Victoria ARNOLD, Plaintiff and Appellant, v. HERCULES POWDER COMPANY et al., Defendants and Respondents. Civ. 10943-10947. |
P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, for appellant.
Peters & Peters, Chico, Pillsbury, Madison & Sutro, San Francisco, for respondent Hercules.
Price, MacDonald & Knox, Ricksen, Snook & Vendt, Oakland, for respondent Coast Mfg.
Appeals from summary judgments in favor of defendants Hercules Powder Company (Hercules) and Coast Manufacturing and Supply Company (Coast Manufacturing) in five separate actions have been consolidated by stipulation. All five actions involve the same accident, a dynamite explosion in an exploration tunnel at the Oroville dam site. Plaintiffs are persons injured and the representatives of persons killed by said explosion. The pleadings and affidavits in the five actions are identical in all respects material here.
In this opinion we sustain plaintiffs' contentions (1) that a triable issue of fact has been raised against both defendants Hercules and Coast Manufacturing, and (2) that the cause of action stated against Coast Manufacturing is not barred by the operation of the statute of limitations. (Code Civ.Proc. § 340, subd. 3.)
The amended complaint pleads three causes of action, the first against the State of California and Does I through X, the second cause of action against all other defendants (which would include Hercules); a third cause of action was pleaded which is not involved here. 1
In the second cause of action pleaded against Hercules it is alleged that on April 21, 1959, the plaintiff was injured (or that plaintiffs' decedents were killed) by an explosion of dynamite while he was working in the tunnel described above. It is also alleged that Hercules (and other defendants, including a defendant named 'Coast Equipment Company') 'manufactured, sold or supplied the fuse and other supplies used in the blasting and, among other negligence, negligently sold or supplied the fuse without reasonably adequate warning as to the timing of the fuse.' (Emphasis supplied.) It is also alleged: 'The aforesaid explosion was proximately caused by the aforesaid negligence of the defendants.'
The answer of Hercules denies these allegations.
The briefs of both sides assert facts which, although not pleaded in the second cause of action--except by reference--are conceded and need statement to give clarity to the discussion to follow. Boyles Bros. Drilling Company (not a party to the action but perhaps the employer of the injured or stricken workmen--see discussion below) had contracted with the State of California to excavate the tunnel in question. Boyles had purchased its dynamite, fuse and other blasting supplies from defendant Dynamite Supply Company which in turn placed an order therefor with Hercules.
The declaration of Hercules' regional sales manager accompanying its motion for summary judgment supplies additional facts, to wit: that Hercules does not manufacture fuse. It does, however, take orders for fuse along with orders for dynamite and other blasting supplies (which Hercules does manufacture). In this instance, when the 'jobber' (defendant Dynamite Supply Company) had placed its order with Hercules for dynamite, fuse and blasting supplies, the order for fuse was passed on to, and filled by, a manufacturer defendant Coast Manufacturing which shipped directly to the jobber. Hercules never had possession of the fuse. It did, however, 'subsequently * * * bill the customer and pay the manufacturer's invoice.'
The declaration further states that '[w]ith rare exceptions, dynamite fuse is manufactured to burn at a rate of one foot to approximately 40 seconds,' and that a type 'Black Sequoia,' a length of 'which was returned to Hercules Powder Company from the job where the accident occurred after the explosion is so manufactured'; that certain fuse 'which burns at a faster rate is manufactured for special applications but I know of none which burns at a slower rate * * *.'
The fact that dynamite fuse usually burns at a rate of approximately one foot in 40 seconds is stated to be a matter of general knowledge among those selling and using blasting materials but such rate is customarily not marked on the fuse or its container
Hercules, in addition to this declaration, asked the trial court, and asks us, to take judicial notice of the fact that a safety order of the Division of Industrial Safety of the California Department of Industrial Relations requires that '[t]he average burning rate of safety fuse used in a tunnel shall be determined by burning not less than three three-foot (3) lengths of such fuse in open air.' (Cal.Admin.Code, tit. 8, sec. 8474, subd. (a).)
Plaintiffs' counteraffidavit of L. O. Chapman denies none of the factual statements of the declaration filed on behalf of Hercules and confirms several of them, including the fact that Hercules itself does not manufacture dynamite fuse. The counter-affidavit also avers that fuse is sold in reels of 3,000 feet, in plain wrappers without warning as to fuse-timing on either the fuse or the package.
This is the factual background upon the basis of which we attack the problem of the applicability of the summary judgment statute. (Code of Civ.Proc. § 437c.) That section provides (inter alia) that where a claim is made by a defendant that the action has no merit the issue of whether or not there is 'a triable issue of fact' may be tested on motion by affidavits. The affidavits in support of the motion 'must contain facts sufficient to entitle * * * defendant to a judgment in the action' and the affidavits in opposition to the motion 'shall set forth facts' showing (if the opposing party be the plaintiff) that the party has 'a good cause of action * * * upon the merits.' (Emphasis supplied.)
In Walsh v. Walsh (1941) 18 Cal.2d 439, on page 442, 116 P.2d 62, on page 64, our Supreme Court made it clear that the 'expedited procedure' of summary judgment is permitted 'only where it is perfectly plain that there is no substantial issue to be tried.' (Emphasis supplied.) This court in Garlock v. Cole (1962) 199 Cal.App.2d 11, 14, 18 Cal.Rptr. 393, 395, applied the rule of the Walsh case, supra, and held that '[a]scertainment of triable issues, not determination thereof fixes the judicial function' in summary judgment proceedings. In the leading case of Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, on page 556, 122 P.2d 264, on page 265, the court observed that summary judgment 'procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.' It added that the affidavits of the moving party must be 'strictly construed.' In de Echeguren v. de Echeguren, 210 Cal.App.2d 141, on page 146, 26 Cal.Rptr. 562, on page 565, the court says, 'If, after an examination of the affidavits, doubt exists as to whether summary judgment should be granted, such doubt should be resolved against the moving party. [Citations.] But, on the other hand, * * * This court recently applied the 'on the other hand' portion of the foregoing rule in Aguirre v. Southern Pac. Co. (1965) 232 A.C.A. 777, 782, 43 Cal.Rptr. 73.
While the language of section 437c quoted above superficially might seem to cast correlative burdens upon both parties, there is no obligation on the opposing party (plaintiffs here) to establish anything by affidavit unless and until the moving party (defendant here) has by affidavit stated 'facts establishing every element necessary to sustain a judgment in his favor.' (de Echeguren v. de Echeguren, supra, 210 Cal.App.2d 141, 147, 26 Cal.Rptr. 562, 565; emphasis supplied.) That means a defendant must show clearly that plaintiff's 'action has no merit.' Summary judgments cannot be granted 'by default' (de Echeguren, supra, at page 148, 26 Cal.Rptr. 562). Thus a plaintiff who has pleaded a cause of action on either of two theories will not be subject to defeat by summary judgment because the defendant has established by an uncontradicted affidavit that one of the two theories (but not necessarily the other) cannot be established. The burden is upon defendant to rule out all possible merit and, as shown above, the law is exacting in its requirements upon a defendant who seeks to meet that burden.
In essence all that Hercules has shown here is (1) that it does not manufacture fuse, (2) that the fuse used here was never in its possession, (3) that most fuse burns at the rate of one foot in 40 seconds but some fuse burns faster, (4) that 'Black Sequoia' fuse (which may or may not have been the type of fuse involved here) is manufactured to burn at the rate of one foot in 40 seconds, (5) that it is generally known by sellers and users that manufacturers 'customarily' do not mark fuse...
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