Green v. Menveg Properties

• Decision Date: 15 June 1954
• Court: California Court of Appeals Court of Appeals
• Parties: GREEN v. MENVEG PROPERTIES, Inc. et al. Civ. 19887.

Page 544

271 P.2d 544

126 Cal.App.2d 1

GREEN v. MENVEG PROPERTIES, Inc. et al.

Civ. 19887.

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

June 15, 1954.

Rehearing Denied July 6, 1954.

Hearing Denied Aug. 10, 1954.

Halverson & Halverson, Los Angeles, for appellant.

Ball, Hunt & Hart, Long Beach, for respondent.

SHINN, Presiding Justice.

Action to recover damages from personal injuries sustained by plaintiff when a defective lighting pole collapsed while he was working at the top of it. In a jury trial plaintiff had judgment for $40,000. Defendant Charles Menveg appeals.

The implied findings were that at the time of the accident defendant was the party in possession and control of the premises, plaintiff was on the premises and working on the pole as an invitee of the defendant, the pole was in a defective and dangerous condition and defendant was negligent in failing to correct, or warn plaintiff of, the condition. The factual background is involved, and must be set forth at some length.

Prior to 1946 and continuously thereafter, defendant was three-fourths owner of a small parcel of land located in Wilmington. The other one-fourth was owned by a corporation, Menveg Properties, Inc. At the time of the accident the improvements consisted of a blacktop surface, a wire fence, several poles equipped with power wires and floodlights, a small shed, and a small movable building intended to serve as an office. The lot was bordered on the west by a parcel known as the Patton property. In 1946 the land was leased to Cornelius A. Heintz for a term of years, for use as a lumber yard. At the same time Heintz leased the Patton property for the same purpose. During the latter part of 1946 Heintz installed on the Menveg property certain poles, wires and floodlights, including the pole in question. In December, 1947, Heintz, failing in business, surrendered his lease. At the same time Charles Menveg and Menveg Properties granted a lease until December 31, 1950 to the Hardwood Mills and Lumber Company, owned by a Mr. Keslar and a Mr. Smith, and Heintz sold all his assets to Keslar and Smith, who also leased the Patton property. Thereafter Keslar and Smith erected on the Menveg property the small movable building. At a later date Keslar and Smith sublet the Menveg property to another lumber company, which failed in July or August of 1948. Keslar and Smith reentered at that time, but conducted no operations on the land. In the latter part of 1949 Keslar and Smith, having discontinued their lumber business, sold some of their equipment for a consideration of $1,600 to plaintiff's employer, Dubin, and his partner Wahnish, who planned to set up a lumber operation on the Patton property. Shortly thereafter, in November, 1949, Keslar and Smith sought to terminate their lease with the Menvegs, and entered into negotiations for that purpose. There was evidence of an agreement under which the lease was surrendered. Toward the end of December, 1949, Dubin, having entered into possession of the Patton land, came upon the Menveg land, removed the wires and floodlights from the poles which stood there, and stored them on the Patton land. Charles Menveg learned that Dubin had removed the wires and lights. During the next few days Menveg and Dubin argued over ownership of the wires and lights. Finally Dubin agreed to replace them on the poles, and on January 30, 1950 Dubin and the plaintiff commenced to do so. After attaching lights and wires to other poles Dubin and plaintiff commenced work on the pole which fell. A flatbed truck was backed up to the pole and plaintiff ascended the pole with the aid of a ladder footed on the bed of the truck. He drew himself to the top of the pole and seated himself on the crossarm. The wires were drawn to the top of the pole and plaintiff, after securing one wire to an insulator on the crossarm, was in the act of putting tension on a second wire when the pole snapped at the base. Plaintiff was approximately 30 feet from the ground, and his fall resulted in severe injuries. Subsequent examination of the pole revealed that a few inches below the surface of the ground it had become heavily infested with termites and fungus. It would have been a simple matter to discover this condition.

In his original complaint plaintiff joined Menveg Properties, Charles Menveg and Hardwood Mills as defendants. Before commencement of the trial he voluntarily dismissed as to Hardwood Mills, and amended his complaint by deleting an allegation that Hardwood Mills was a tenant in possession and inserting an allegation that Menveg Properties and Charles Menveg were in possession at the time of the accident. The verdict was against these defendants and the court granted Menveg Properties a judgment notwithstanding the verdict.

Defendant urges that the evidence proved, as a matter of law, that the lease to Keslar and Smith was still in force at the time of the accident, that he was not in possession or control of the premises when the accident occurred, and that he therefore did not owe to plaintiff a duty to invitees to discover and repair or warn of defects.

The evidence relating to the question of possession and control of the premises was as follows: Keslar testified that before November, 1949, he and Smith wanted to terminate their lease. They were not using the property after September, 1949. In the latter part of November, 1949, they negotiated orally with Charles Menveg; Keslar offered to pay up to the first of the year and to walk out and allow the Menvegs to take over the premises, and have the small office building. Charles agreed for his own part to take two months' rent and the office building and let Smith and Keslar out of the lease, and said that he would talk it over with Emil Menveg and let Keslar know of their decision. Keslar testified that a few days later his offer to surrender the lease was accepted over the telephone by either Charles or Emil Menveg--he believed it was Charles who telephoned him. Smith's testimony as to negotiations had with Charles Menveg was to the same effect. The two months' rent was paid. Keslar also testified that sometime in January or February he received a telephone call from the Menvegs' attorney requesting that Keslar send him a letter stating that he and Smith had disclaimed any interest in the lease, and had abandoned the premises. On April 3rd the request was repeated, and on April 6th Keslar wrote such a letter to Menvegs' attorney. In this letter he promised to remove a saw which remained on the premises. Charles Menveg testified to the negotiations with respect to termination of the lease but denied that he had agreed to it and Emil also denied having given his consent. The jury resolved the conflict in favor of Keslar's version of the transaction, which was sufficient to prove an offer to surrender the lease and an acceptance by the owners. It will be developed in our discussion that it is unimportant whether there was a formal surrender of the lease, accomplished by means of the oral agreement. There was sufficient evidence that Keslar and Smith surrendered, and that Charles Menveg assumed possession and control of the premises.

The next question is whether the implied finding that plaintiff was Menveg's invitee was justified. If Menveg invited Dubin to go upon the land, to replace the wires, both Dubin and the workman were invitees. The wires from the Menveg poles originated in and current was controlled from a shed on the Patton property, in which the meters and switches were located. Dubin testified that one or two days before the accident, Menveg called on him, claimed the wires were his, and demanded that they be restored within three days. Dubin claimed ownership. The next day Dubin called on Menveg at his office, said in effect that if the wires were Menveg's he, Dubin, had been duped in his purchase of the mill and equipment, and asked to see some evidence of Menveg's ownership. He said that if it appeared that the wires belonged to Menveg he would replace them. Menveg produced a bill of sale which listed two floodlights and some wiring. Dubin had removed three or four floodlights. Dubin thought that two of the floodlights might be Menveg's and two might be his own. Menveg reiterated his demand and Dubin said that he would put them back. The next morning Menveg called on Dubin again, and again the matter was discussed. Thereafter Dubin and plaintiff set about replacing the wires and lights on the poles. Dubin further testified that he contended that he took the wires in the belief that they were his. The fact that the circuit originated in and ran from the shed on the Patton property tended to support his claim. The bills of sale issued by Keslar and Smith to Dubin enumerated various items plus 'miscellaneous personal property on the Patton property; all fencing and motors in storage which belong to the said above mentioned equipment; and one white office building.' There was room for an honest difference of opinion whether the wiring and lighting which extended onto the Menveg property was intended to be included. There was sufficient evidence that plaintiff was an invitee.

The next claim of error relates to the instructions. The jury was instructed as set out below. ¹ The record does not disclose at whose request this instruction was given. Defendant requested an instruction as set out below which instruction was refused. ² Error is assigned in giving the first instruction and refusing the one that was requested. There was no error. The instruction that was given imposed upon plaintiff the burden of proving that the parties had settled and compromised their respective claims and that it would be necessary for the jury to so find in order to find that Menveg was an invitor. The instruction that was given was favorable to defendant. It was not error to refuse the one that was requested. The question was whether Dubin's...