Gyerman v. U.S. Lines Co.

• Decision Date: 12 July 1972
• Citation: 498 P.2d 1043,7 Cal.3d 488,102 Cal.Rptr. 795
• Court: California Supreme Court
• Parties: , 498 P.2d 1043, 1974 A.M.C. 1827 John GYERMAN, Plaintiff and Appellant, v. UNITED STATES LINES COMPANY, Defendant and Respondent. L.A. 29936

Page 795

102 Cal.Rptr. 795

7 Cal.3d 488, 498 P.2d 1043, 1974 A.M.C. 1827

John GYERMAN, Plaintiff and Appellant, v. UNITED STATES LINES COMPANY, Defendant and Respondent.

L.A. 29936.

Supreme Court of California

July 12, 1972.

George E. Shibley, Margolis, McTernan, Smith, Scope & Herring, Ben Margolis, Los Angeles, Saltzman & Goldin and Martha Goldin, Hollywood, for plaintiff and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Clarence S. Hunt, Richard C. Goodman, Donald B. Caffray and Roger S. Shafer, Long Beach, for defendant and respondent.

SULLIVAN, Associate Justice.

In this action for damages for personal injuries, plaintiff John Gyerman appeals from a judgment entered after a nonjury trial denying him any recovery against defendant United States Lines Company (United States Lines).

We set forth the pertinent facts. ¹ Plaintiff, an experienced longshoreman, was an employee of Associated Banning Company (Associated Banning), a stevedore company. Plaintiff was assigned to work in a warehouse operated under a lease by defendant United States Lines at Wilmington, California. The warehouse was adjacent to a dock and was used to store cargo unloaded from vessels. On the occasion in question, 100-pound burlap sacks of fishmeal, stacked on wooden pallets, had been unloaded from the hold of a vessel and moved by forklifts into the warehouse for storage. Plaintiff's job was to 'break down' the stacks in the warehouse with a forklift so that they were no more than two pallets high and could be more easily loaded by the truckers picking up the cargo for delivery to its consignees.

The fishmeal was a difficult cargo to handle, because the sacks had a tendency to tear and to spill their contents. As a result the stacks were subject to shifting and tilting. The sacks of fishmeal were usually piled onto palletboards three or four layers high, with 18 to 22 sacks on each pallet. As a general practice the sacks were 'bulkheaded' or tied in. In other words, they were so arranged that no one sack was directly on top of another, but rested on several sacks for firmer support, analogous to the arrangement of bricks in a building.

Upon arriving at defendant's warehouse on a Monday, plaintiff noticed that some of the fishmeal stacks were unusually arranged. They appeared to have more than 30 sacks to a pallet, and were not 'bulkheaded.' ²

There was a conflict in the testimony as to plaintiff's actions following these observations. Plaintiff testified that on the first morning he complained to defendant's chief marine clerk, Kenneth Noel, asking the latter, 'How do you expect me to break this down with this hazardous condition that you have over here on this land side?' According to plaintiff, Noel replied, 'John, there is nothing I can do about it. Just do the best you know how.' Called as a defense witness, on direct examination, Noel denied that he had any conversation with plaintiff about the safety of the loads. On cross-examination, he reiterated this denial even when challenged with a statement in his deposition, taken a year and a half after the accident, that he did not remember whether or not such a conversation had taken place. ³

Plaintiff, who was the only longshoreman assigned to 'breaking down' the stacks, spoke to no one else about the condition of the cargo. The only supervisory personnel with whom he had contact on this job were his foreman and defendant's marine clerk, Noel. The record is unclear as to the extent of the latter's authority over the longshoremen. The major function of defendant's warehouse employees was to keep track of the movement of the cargo. However, defendant's marine clerks directed Associated Banning's forklift operators on such matters as where to place the pallets of cargo and how they should be stacked.

Plaintiff testified that the only effective supervision of his work was by defendant's marine clerks, that he was under orders from his own foreman to take directions from defendant's employees, and that refusal to do so could subject him to discharge by his own employer. He stated that he complained about the cargo to Noel '(b)ecause he was the only one there acting on part of supervision, and, also, as chief supervisor for the U.S. Lines.' However, the record also indicates that it was not the function of defendant's marine clerks to supervise the work methods of Associated Banning. Plaintiff's own foreman, who was supervising 15 to 20 other longshoremen at a pier six to eight blocks away, appeared at the warehouse for only a few minutes each day. His primary function was to ascertain for payroll purposes whether plaintiff was working and whether or not he would be needed for another day on this job.

Plaintiff's safety expert, Joseph Bayer, testified on cross-examination that it was both the duty and the right of a longshoreman to refuse to handle clearly dangerous overloads. Bayer also stated that there is '(n)o way whatsoever' for a longshoreman to remove the cargo once it is stacked three pallet boards high, with 30 or more stacks per pallet board, without exposing himself to danger. Noel testified that it was the custom on the docks for a longshoreman who found a dangerous condition to report it to his business agent.

Herman Hargett, manager of labor relations for Associated Banning, was subpoenaed and called as a witness by defendant. His duties were to represent not only Associated Banning but the industry as a whole in negotiations and disputes pertaining to contracts between the longshoremen and the various employers belonging to the Pacific Maritime Association. He testified that the dock foreman was the immediate superior of the longshoremen working on the dock and in the warehouse, including those operating forklifts, but that defendant's marine clerks told the forklift operators where to place the cargo and how high to arrange the stacks of pallets. He stated that 'if (a condition) is unsafe, he should immediately stop work until it is made safe. This is contractual language,' referring to the contract between the Pacific Maritime Association and the International Longshoremen's Union. ⁴

According to Hargett, under this contract, if a longshoreman encountered an unsafe condition, he was supposed to stop work immediately. 'In Gyerman's case, if there was no supervision there immediately to take care of the situation, why, he would have to surmount it by setting it aside or getting another lot to work on, or have supervision called, which in this case the U.S. Lines would have called us, and we would have sent men there to take care of the situation, if he was in such a condition he couldn't operate.'

After his conversation with Noel, plaintiff proceeded to break down the fishmeal stacks by using a forklift, which was equipped with a canopy to protect the operator against being struck by falling cargo. During his first three days on the job, more than the usual number of sacks tumbled from loads which plaintiff was moving, but all were deflected from striking him by the forklift's canopy. At 4 p.m. on Thursday a dozen or more sacks fell at once from the top of a load that plaintiff was moving, causing a ricochet effect. At least one of the sacks was apparently propelled toward plaintiff from an unprotected side of the forklift. Plaintiff recalls seeing the entire load shifting towards him, as if sacks were falling off the top pallet. He found himself on the floor on the left side of the forklift opposite the seat, without knowing exactly what knocked him off the vehicle. As a result he sustained injuries to his lower back and legs.

Plaintiff commenced the present action for damages for the personal injuries allegedly caused by defendant's negligence. Defendant denied the material allegations of the complaint and as an affirmative defense asserted that plaintiff himself was guilty of contributory negligence in that he carelessly and negligently drove and operated the forklift so as to cause the accident. ⁵ At the first trial a jury returned a verdict for defendant. The court granted a new trial on the ground of the insufficiency of the evidence to support the verdict. ⁶ The order granting a new trial was affirmed on appeal. (Gyerman v. United States Lines Company, 2 Civ. 31209, filed March 25, 1968, certified for nonpublication.)

The appellate court rejected defendant's threefold contention that the trial court had abused its discretion in granting a new trial because (1) there was no evidence of defendant's negligence, (2) there was no evidence that any negligence of defendant was a proximate cause of plaintiff's injury, and (3) the evidence established that plaintiff was contributorily negligent as a matter of law. In its opinion, the Court of Appeal set forth the conversation between plaintiff and Noel, defendant's employee. It also referred to defendant's statutory duty as an employer, under Labor Code sections 6302, 6304, and 6400--6404, ⁷ to furnish plaintiff a safe place to work, and found abundant evidence that defendant had breached its duty to plaintiff by using a method of pallet-stacking which violated section 3256, subdivision (b) of the General Safety Orders of the Division of Industrial Safety. ⁸ The Court of Appeal concluded that, 'Although there was some evidence from which there might arise a whisper of contributory negligence on respondent's part, that hint of contributory negligence cannot be converted into negligence upon his part as a matter of law.'

On retrial, it was stipulated by the parties that the matter could be heard by the court sitting without a jury on the transcript of the first trial. After considering the pleadings, the transcript and the arguments of counsel, the trial court found in substance that defendant negligently maintained and stored the fishmeal cargo in a dangerous and unsafe condition 'which was a proximate cause of plaintiff's injuries'; that it was plaintiff's duty to stop work immediately...