Gaspar v. Georgia Pac. Corp.

• Decision Date: 31 January 1967
• Citation: 248 Cal.App.2d 248,56 Cal.Rptr. 243
• Court: California Court of Appeals Court of Appeals
• Parties: Profidio GASPAR, Plaintiff and Appellant, v. GEORGIA PACIFIC CORPORATION, a foreign corporation, and Southern Pacific Company, a corporation, Defendants and Respondents. Civ. 22891.

Page 243

56 Cal.Rptr. 243

248 Cal.App.2d 248

Profidio GASPAR, Plaintiff and Appellant, v. GEORGIA PACIFIC CORPORATION, a foreign corporation, and Southern Pacific Company, a corporation, Defendants and Respondents.

Civ. 22891.

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

Jan. 31, 1967.

Hearing Denied March 29, 1967.

Smith, Parrish, Paduck & Clancy, by Thomas Schneider, Oakland, for appellant.

Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, San Francisco, for respondent, Georgia Pacific Corp.

John J. Corrigan, San Francisco, for respondent, Southern Pacific Co.

DEVINE, Justice. ^*

Plaintiff appeals from judgment for defendants on the proposition that a conditional res ipsa loquitur instruction was refused.

Plaintiff was employed by Loop Lumber Company in Alameda. He was helping to unload lumber from a flatbed car when an 8-by-8-inch board fell from the car onto his foot and destroyed his toes. Plaintiff sued Georgia Pacific Corporation, which loaded the lumber at Springfield, Oregon, on the proposition that the loading was negligent, particularly in that the bearing pieces, which underlay, crosswise, the heavy load, were not long enough, so that several inches of width of certain timbers overhung the bearing pieces and, when the supporting stakes were removed, the timbers did not have an adequate base, the fell. The action against Southern Pacific Company is based mainly on asserted faulty inspection of the load at several points on the journey from Oregon to Alameda, no defect having been observed. It is not asserted by appellant that the evidence in favor of each defendant would not justify the verdict that was awarded each defendant. There was testimony by Georgia Pacific that the lumber was not dangerously loaded, and by Southern Pacific that adequate inspections were made. As to alleged contributory negligence of plaintiff, there is nothing to establish either plaintiff's or defendants' position as a matter of law, and as there was no interrogatory to the jury on this subject, we cannot say that the verdict was based on contributory negligence rather than on failure of plaintiff to prove causative negligence on the part of either defendant. Defendants, asserting negligence of Loop Lumber Company, brought Loop's workmen's compensation carrier into the case in order to prevent recovery by the carrier under the theory of Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641. Loop Lumber Company was found by the jury, in answer to a special interrogatory, to have been negligent, and the negligence was found to have been a proximate cause of plaintiff's injury. This finding cut off the insurance carrier from recovery, but it does not rule out the possibility of negligence of either or both of the defendants as a concurrent cause. But the activities of Loop Lumber Company in unloading the car are important in considering the subject of res ipsa loquitur.

Southern Pacific turned over the car to Loop Lumber on Loop's 'team track' (so named from the days when horsedrawn trucks were used in unloading). Two Loop employees, plaintiff and Morales, proceeded to the unloading. Morales operated a forklift; plaintiff helped in guiding, in removing dunnage and metal bandings around the load, and in like jobs. Morales testified that the forklift was 'an old piece of junk' which was designed to lift 14,000 pounds, but could lift only 8,000 to 10,000 safely. The 'units' of lumber which had to be unloaded appear to be in excess of 12,000 pounds; from which it was argued by defendants that there was likelihood that the lower timbers were disturbed or 'raked' while the upper ones were being removed by Loop's employee, Morales. Morales testified that he noticed that the bearing pieces were short, that he feared timbers would fall, and that he warned appellant (which appellant denies). Morales had received no instructions about supporting the load after removal of the stakes, though, he testified, such supporting would have been possible and, he said, this would have been good practice. There were no safety meetings at Loop. The stakes were removed either by pushing them upwards out of their holes by the forklift, or by jabbing the work into the stakes and raising them. A loading instructor for Southern Pacific, Richards, testified that when 'they (Loop's men) took the top portion of the load off, that is a cinch to shake up the rest of it.' After all of the top units had been removed, and as Morales moved the forklift toward the car to get one of the bottom units, an outside bottom tier of lumber fell from the car and one piece struck appellant. He was walking alongside the car about five or six feet from it.

This recital has been given, not to show that Loop was negligent as a matter of law, nor that the affirmative answer to the interrogatory about Loop's negligence would insulate defendants from any negligence on their part (which, if existent, might have remained as a concurring proximate cause), but simply to show that the question of negligence of Loop surely was a fact to be reckoned with when the problem of control was presented in respect of res ipsa loquitur.

At first, appellant proffered the unconditional res ipsa loquitur instruction, but this was refused; and appellant makes no contention on appeal that it should have been given. When the court was about to discuss with counsel the subject of res ipsa loquitur, in relation to instructions, counsel for appellant suggested that the discussion be off the record (apparently, just for convenience). After the trial, counsel proposed that there be a partial settled statement in which it would appear that appellant had proposed, orally, a conditional res ipsa loquitur instruction, and that the court had said that a res ipsa loquitur instruction would not be given.

There was a racking of memories by judge and lawyers at the post-trial conference, and at the end, the judge made this settled statement part of the record: 'The Court, in accordance with Rule 7, settles the statement as follows: That attorney for plaintiff, on December 16, 1964, in open court, during a discussion between the Court and counsel, did offer to prepare a conditional res ipsa loquitur instruction which would require the jury to make certain findings of fact before it would apply the doctrine of res ipsa loquitur. That the Court indicated it felt that it would not give any instruction on the doctrine, regardless of how it was prepared.' Respondents argue that we should hold that res ipsa loquitur could not possibly apply to the state of facts. But we prefer to base our decision on narrower ground. We hold that appellant did not satisfy the requirements for presenting instructions, and that the deficiency was not excused by the judge's statement at trial, as quoted above.

Written instructions must be submitted. (Code Civ.Proc. § 607a.) On appeal, a party cannot predicate error on the refusal to give an instruction unless the proposed instruction is made part of the record. (Thomas v. Laguna, 113 Cal.App.2d 657, 660, 248 P.2d 929; Alexander v. McDonald, 86 Cal.App.2d 670, 671, 195 P.2d 24.)

But appellant asserts that there is an exception to the above rules when the judge has said that he would not give an instruction on a subject such as res ipsa loquitur, because the law does not require idle acts. Appellan...