Darnold v. Voges

• Decision Date: 18 July 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Richard DARNOLD, Plaintiff and Respondent, v. Stanley H. VOGES, Raleigh A. Voges, and Ralph C. Voges, co-partners doing business under the fictitious firm name and style of Ingiewood Farms (sued as Inglewood Farms, Inc., a California corporation), Inglewood Daily News, a California corporation, Mrs. Pluma Whyte, individually, and doing business under the fictitious firm name and style of Torrance Herald, and Does I to X, inclusive, Defendants, Stanley H. Voges, Raleigh A. Voges, and Ralph C. Voges, co-partners, doing business under the fictitious firm name and style of Inglewood Farms, Appellants. Civ. 21108.

Page 255

300 P.2d 255

143 Cal.App.2d 230

Richard DARNOLD, Plaintiff and Respondent, v. Stanley H. VOGES, Raleigh A. Voges, and Ralph C. Voges, co-partners doing business under the fictitious firm name and style of Ingiewood Farms (sued as Inglewood Farms, Inc., a California corporation), Inglewood Daily News, a California corporation, Mrs. Pluma Whyte, individually, and doing business under the fictitious firm name and style of Torrance Herald, and Does I to X, inclusive, Defendants, Stanley H. Voges, Raleigh A. Voges, and Ralph C. Voges, co-partners, doing business under the fictitious firm name and style of Inglewood Farms, Appellants.

Civ. 21108.

District Court of Appeal, Second District, Division 2, California.

July 18, 1956.

Rehearing Denied Aug. 13, 1956.

Hearing Denied Sept. 13, 1956.

Gibson, Dunn & Crutcher, by Norman S. Sterry, Ira C. Powers, Sherman Welpton, Jr., Los Angeles, for appellants and petitioners.

Robertson, Harney, Drummond & Dorsey, by David M. Harney and Vernon W. Hunt, Jr., Los Angeles, for respondent.

MOORE, Presiding Justice.

Defendants demand the reversal of a judgment for damages allegedly resulting from personal injuries suffered when a cow kicked and fell upon plaintiff. They contend (1) the judgment is without evidentiary support; (2) prejudicial errors were made in rulings upon the admissibility of certain evidence; (3) certain instructions were prejudicial.

The Voges brothers, appellants, operated a dairy farm under the name of Inglewood Farms, ¹ near Torrance, where they processed milk purchased from divers milk producers. The elaborate processing plant included a barn which appellants had leased to John Bos. He owned a herd of some 300 milch cows which he caused to be milked in the barn. He had agreed with appellants 'that they could take visitors around.' Pursuant to such agreement, appellants had thousands of school children coming to visit the dairy to see the bottling and processing of 'the complete dairy farm' and university girls about to become teachers came to learn something of the dairy industry. In all, about 7500 visitors were shown by appellants annually through the dairy. So secure was the right of appellants to use the barn for their purposes that they 'built a cement step-up all the way down the side of the barn' so that they could get about '95 children up there at one time to watch the milking processing.'

Among appellants' visitors were some spastic children which appellants brought inside the barn in their wheel chairs right next to the cows. Also, at times, appellants took their visitors 'down the feed aisle when the cows were in there being fed and milked.' From the foregoing it is clear that the jury were warranted in finding that appellants were unrestrained in their use of the barn and its passageway from which photographs were taken. Not only did appellants come and go as visitors through the barn as it pleased them, but they made use of their privilege by inviting such parties as would serve their own purposes into the barn.

In order to stimulate a wider interest in their business, appellants contracted with the Torrance Herald to advertise the business of Inglewood Farms. In turn the Herald engaged one Hartford to obtain an advertisement from appellants. Having procured a contract for the publication of such advertisement, Hartford had the Herald's photographer, one Svensk, accompany him to Inglewood Farms, October 31, 1952. On that day, Bos had employed respondent as a milker. At the time of the accident he was engaged in milking his employer's cows by the use of a mechanical device. As he sat on a stool nine inches high reaching under cow number 3 to attach a milking machine to her, a flashlight bulb flashed nearby, whereupon cow number 2 whose head was in a stanchion pulled back violently and in a moment had crushed respondent to the floor. On crawling out, respondent called to photographer Svensk to inquire who gave him permission to enter the barn and take pictures. His reply was that the foreman (of appellants) had done so. Respondent suffered serious injuries for which the jury returned a verdict for $72,813.90. The motion for a new trial was denied on condition that the sum of $25,000 be remitted from the verdict.

On their arrival at the Farms, Hartford introduced Svensk to Stanley Voges who introduced Svensk to Mr. Barnard, appellants' technologist and plant manager; also he advised Stanley of his desire to take photographs of 'anything of interest.' Having taken a number of pictures of the Farms, Svensk said they would be pleased to get photographs of the actual milking. Barnard replied that permission to do so would have to be obtained from Bos, since he was lessee of the barn and in control. Appellants now say that 'the record was conclusive that it was under Bos' complete control,' and thereby seek to avoid responsibility for the acts of Svensk. But the jury could reasonably have determined that by virtue of the agreement with Bos for appellants to bring visitors into the barn, Barnard as superintendent for appellants had led the photographer into the barn and told him he now had permission to take pictures of the actual milking. After Barnard left the scene, Svensk took two flashlight pictures of cows being milked. At that time the bovines stood so that their bodies were 2 1/2 feet apart with their necks in stanchions. It was at the time of such photography that respondent was injured by cow number 2.

By reason of the agreement that appellants might freely conduct visitors through the barn and of their having generously exercised such privilege, the jury were warranted in making their implied finding that appellants had invited Svensk into the barn and had caused him to flash the light in the faces of the cows. Also, such finding was supported by Bos' emphatic testimony that neither he nor his agent had consented to anyone's taking pictures in that area.

Mr. Barnard testified that neither he nor anyone in appellants' office was authorized to permit pictures to be taken in the barn. But the jury were justified in rejecting Barnard's testimony so far as authority from appellant is concerned for the reason that Hartford and Svensk had come to the plant for the purpose of taking pictures to be used for the benefit of appellants' business; not that of Bos. They were to be published in the Torrance Herald. The contention that they were there on their own business and not for the benefit of Farms is to disregard the implied finding that they were there with appellants' permission to take the photographs, if, indeed they were not present on the invitation of appellants. The advertisement was not to benefit Bos or his herd. Moreover, when Hartford and Svensk arrived at Inglewood Farms, they were greeted by Stanley Voges who left them with Barnard, the Inglewood Farms' foreman. The latter 'paved our way for all pictures,' testified Hartford, and accompanied the two men as they photographed a number of scenes. Having been placed in Barnard's charge, they asked him and he told them what views might be taken. After cows 2 and 3 had been photographed, respondent inquired of Svensk who gave 'him permission to take a picture in there.' The only reply was: 'The foreman, the foreman.' Since Svensk had met only Stanley Voges and Barnard and since the milkers had no foreman, it must be conceded that the jury were correct in finding that Barnard, foreman of Inglewood Farms, gave Svensk permission to photograph cows 2 and 3 and that he was authorized by appellants to do so.

In doing any act that might disturb a herd or a single bovine, the person to be consulted is he who is close at hand and likely to be affected. Because a man is engaged in the performance of a menial task is not a valid excuse for ignoring him when danger lurks in the offing. He is still an individual whose personality demands respect and protection against potential dangers. Insofar as his rights to be protected against latent perils are involved, every man is a king. But Darnold was ignored by Svensk and by Barnard. While the latter disclaimed having authority to permit pictures to be taken of the cows, and Bos denied having been requested to allow them to be photographed, the glaring facts remain that respondent heard nothing prior to the flash, Barnard was in charge of the photographers in the plant for the occasion and Svensk answered respondent that permission had been given by 'the foreman.' It is true that Barnard testified he had called out requesting the milkers to cooperate; that he knew all four milkers, but had heard no response and never identified a milker as having consented; but Mr. Hartford testified that he heard no statement of Barnard that it was necessary to get the permission of the milkers; nor did Barnard make request of anyone in the barn to consent to photographing the cows. The evidence is sufficient to justify a finding that appellants did not have the consent of respondent to light a flashbulb before the cows where he was in pursuit of his duties and that neither appellants nor the photographer warned respondent of the latter's immediate intention. The jury were not obliged to determine that because Bos testified that he had exclusive control of the barn or because Barnard testified to lessors' lack of authority to permit photographing in the barn, appellants were not the authors of respondent's injuries.

Appellants make a powerful argument to the effect that the accident described by plaintiff did not occur because it could not happen. However, the testimony of plaintiff, of Stanley Voges and Virgil Lindsay, Jr. contain passages which, added to the jurors' combined experience with the common facts of life, Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 501, 55 P.2d 870; People v. Miller, 41 Cal.App.2d 252, 258, 106 P.2d 239; Miller v. City of Arcadia, 121 Cal.App. 660, 662, 9 P.2d 587; Cederberg v. Robison, 100 Cal. 93,...