Edison v. Lewis Mfg. Co.

• Decision Date: 06 March 1959
• Court: California Court of Appeals Court of Appeals
• Parties: Goldie J. EDISON et al., Plaintiffs and Respondents, v. LEWIS MANUFACTURING CO., a co-partnership, et al., Defendants, North & Judd Manufacturing Co., Appellant. Civ. 23172.

Page 286

336 P.2d 286

168 Cal.App.2d 429

Goldie J. EDISON et al., Plaintiffs and Respondents, v. LEWIS MANUFACTURING CO., a co-partnership, et al., Defendants, North & Judd Manufacturing Co., Appellant.

Civ. 23172.

District Court of Appeal, Second District, Division 1, California.

March 6, 1959.

Rehearing Denied April 2, 1959.

Hearing Denied April 29, 1959.

Parker, Stansbury, Reese & McGee, and A. P. G. Steffes, Los Angeles, for appellant.

Miller, Jones & Tollefson, Philip F. Jones, San Fernando, for respondent.

WHITE, Presiding Justice.

This action was instituted by plaintiffs, the widow and minor children of Edward L. Edison to recover damages sustained by them and resulting from his death when he fell from an oil well derrick on December 15, 1953. Trial was had before a jury which returned a verdict in favor of plaintiffs and against defendant North & Judd Manufacturing Co., a corporation, for the sum of $79,000. From the judgment entered upon the verdict, and from the denial by the trial court of its motion for judgment in its favor notwithstanding the verdict, defendant North & Judd Manufacturing Co. prosecutes this appeal.

When the presentation of evidence had been concluded, said defendant moved the court for a directed verdict, which motion was denied.

There has been presented to this court a written stipulation limiting the issues to be determined on this appeal. In that regard, the stipulation reads as follows:

'1. Defendant-Appellant North & Judd Mfg. Co., will limit its appeal herein to a determination of whether the trial court erred in denying said defendant-appellant's motion for a directed verdict in favor of said defendant, and whether said court further erred in denying the motion of said defendant-appellant for a judgment in its favor notwithstanding the verdict of the jury.

'It Is Further Stipulated that said defendant-appellant expressly waived its right to a new trial herein at the time of the hearing of its motion therefor on September 30, 1957, and does now waive any claim or right to a reversal of the judgment and/or order appealed from herein, except a reversal with directions to enter judgment in favor of said defendant-appellant. It is specifically understood that the defendant-appellant intends to show:

'First: That, considering all competent evidence, and all proper inferences and deductions therefrom, there is no substantial evidence in the record to prove any negligence on the part of said defendant-appellant, which proximately caused the death of Edward L. Edison; and

'Secondly: That, in any event, the deceased was contributorily negligent as a matter of law.' No errors are urged, predicated upon the admission or rejection of evidence or in the giving or refusing of any instruction.

Insofar as material to the disposition of this appeal, the factual background surrounding this litigation may be epitomized as follows: On December 15, 1953, Edward L. Edison, 33 years of age, was employed by the firm of Kee & Simpson, in Ventura County, California, as an oil derrickman, a job which he had held for some time prior thereto. In this capacity, Edison on that date was working on an oil derrick at a point about 90 feet from the ground, and was wearing a safety belt furnished by his employer for his protection in the event that he should slip and fall. Attached to the back of this safety belt, there was a D-shaped metal ring which was manufactured by bending a short steel rod into shape and then welding the two ends together in the center of the ring's straight side. The straight side of this ring was enclosed by a close fitting metal sleeve or tube, and by the belting itself, so that it was not visible or subject to visual inspection. This ring was inserted into the back of the safety belt by the belt manufacturer for the purpose of securing a rope or line thereto, which is in turn anchored at its other end to the derrick on which the man is working. This is the manner in which the belt and ring were being used by Edison on the date mentioned.

The D-ring on the back of decedent's safety belt was manufactured by defendant North & Judd Mfg. Co. The safety belt worn by Mr. Edison at the time of his death was purchased by a Mr. Crabtree, the foreman for Kee & Simpson, Edison's employer, on June 13, 1952. The belt was purchased from Bethlehem Supply Company, according to the purchase records of Kee & Simpson. It was referred to as a 'Weco-Lewis Derrickman's Safety Belt' in the purchase invoice. 'Weco-Lewis' is one of the trade names for a derrickman's safety belt manufactured by a Mr. Charles T. Lewis, doing business as Lewis Manufacturing Company, in Oklahoma. Mr. Lewis bought all D-rings for his safety belts exclusively from defendant North & Judd Mfg. Co., and had been doing so throughout the years 1938 through 1953. These rings, including the one on Edison's belt, were stamped with a number '4041', the word 'tested', and an anchor trademark. When received by Lewis the D-rings were enclosed in a metal roller or sleeve on the straight side. Lewis had originally used a D-ring without markings, but changed to the number 4041 ring in 1938 when he saw it pictured in defendant North & Judd's catalogue under the heading of 'Safety Hardware', bearing the word 'tested'. In making the change to this ring, Lewis relied on the representation in defendant North & Judd Mfg. Company's catalogue that the ring was tested safety hardware. During the years 1951 through 1953 Lewis manufactured and sold about 3,000 belts per year, and never had belts in stock for more than 30 days from the date of their manufacture to date of shipment to purchasers. During this same period Lewis purchased the 4041 D-rings for his belts from defendant North & Judd in lots of between 500 and 1,000. He received shipments of such rings from North & Judd every month or two.

Lewis sold his belts to oil field supply companies, and according to his business records, Bethlehem Supply Company customarily ordered and was supplied such belts by Lewis under the designation 'Weco-Lewis'. According to the records of the Bethlehem Supply Company, its Los Angeles office transferred four 'Weco- Lewis' safety belts, without straps, to its Castaic store on March 29, 1952, one of which was the one sold to Kee & Simpson, decedent's employer, on June 13, 1952. These four were part of a shipment of twenty belts ordered from the Lewis Company and received on August 1, 1951, by the Los Angeles office of Bethlehem Supply.

Defendant North & Judd Manufacturing Company, through its agents, knew the use to which Lewis was putting its 4041 D-ring, at least since the year 1946, and the exact manner in which the D-ring and belts were being used. Its sales agent called on Lewis every 90 days following World War II, and always discussed the product manufactured by Lewis. In addition, at the request of defendant North & Judd Manufacturing Company's home office, Lewis furnished said defendant with his illustrated catalog, showing the manner in which the latter's D-rings were used in a Lewis derrickman's safety belt, and the purposes for which the belt was intended. During all the years prior to the accident defendant North & Judd Manufacturing Company represented its D-ring as being 'thoroughly tested', never indicated any concern over the soundness of each D-ring it sold to Lewis for his known purpose, and never suggested that some other type of ring would be more suitable. However, after being informed by Lewis of the accident in which Edison was killed, said defendant subsequently wrote to Lewis and admitted that a portion of its welded hardware which passed its production tests was not reliable where shock loads were involved.

Defendant North & Judd Manufacturing Company, through its home office sales manager, knew of the use of its welded D-ring by other safety belt manufacturers as well as Lewis. Other than its use in safety belts and associated equipment, no other uses or intended uses for this D-ring are revealed by the record on appeal.

Defendant North & Judd Manufacturing Company's manufacturing, testing and inspection processes for its number 4041 D-ring were the same for the years 1950 through 1955. The first step of the manufacturing process consisted of cutting and forming the rings from large coils of 3/8-inch wire, composed of a low carbon steel. The rings were then cleaned and welded. The welding operation was performed by an electric welding machine in a process known as 'butt-welding' or 'resistance welding'. This is a method by which the ends of the metal to be joined are welded together in an instant by the machine, through an intense electric current which heats the metal ends to a plastic state accompanied by great mechanical pressure, or 'push-up'.

Following the welding operation the rings were smoothed by tumbling in sand and water and then subjected to the defendant manufacturer's testing machine. This machine put a concentrated outward bending force against the inner edge of the ring at the weld, by means of a lever which slowly applied and then withdraw a 582-pound load at that point on the ring. Each of the 4041 D-rings marked 'tested' were subjected to this loading test. Each ring was then placed in a form the same shape as the ring in order to determine that the ring had retained its original shape. At the same time each ring was visually inspected for visible fractures in the weld. The rings were then plated, stamped as heretofore described, and enclosed in a sheet metal roller on its straight side so that the weld was no longer visible. The procedure just described was the complete testing method used by defendant manufacturer, and no other tests were given to the product. Some of the rings welded by said defendant's machines failed to pass its testing procedure. The number of 'rejects' varied from day to day. The foregoing evidentiary narrative presents the evidence in a light most favorable to plain...