Hogan v. Miller

• Decision Date: 05 August 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Jewell HOGAN, Plaintiff and Appellant, v. Lee MILLER, doing business as Lee Miller Company, Gilbert J. Martin, Milton Farbstein, Ruth Farbstein and Frank X. Bale, Defendants and Respondents. Civ. 22227.

Page 230

314 P.2d 230

153 Cal.App.2d 107

Jewell HOGAN, Plaintiff and Appellant, v. Lee MILLER, doing business as Lee Miller Company, Gilbert J. Martin, Milton Farbstein, Ruth Farbstein and Frank X. Bale, Defendants and Respondents.

Civ. 22227.

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

Aug. 5, 1957.

Hearing Denied Oct. 3, 1957.

N. E. Youngblood, Beverly Hills, William M. Brandon, and Francis X. Marnell, Huntington Park, and Anthony T. Carsola, Beverly Hills, for appellant.

Gitelson, Coyle, Cooper & Savitch, Los Angeles, for respondents Farbstein.

Moss, Lyon & Dunn, Gerold C. Dunn, and Henry F. Walker, Los Angeles, for respondent Martin.

Betts, Ely & Loomis, Los Angeles, for respondent Bale.

FOX, Justice.

Plaintiff was injured while opening a window in the ladies' restroom in the building where she was employed. She sued the supplier of the window (Lee Miller); the general contractor, who built the new addition in which the ladies' restroom and the window were located (Gilbert J. Martin); the owner of the building (Milton Farbstein ¹); and the intermediate lessor (Frank J. Bale) who contracted with Martin for the construction of the new addition to the building. Prior to the trial, plaintiff executed 'a covenant not to sue further' as to defendant Miller. At the conclusion of the trial the court directed a verdict in favor of the other defendants. Hence this appeal.

Defendant Milton Farbstein owned the real property in question and leased it for five years, commencing October 1, 1951, to Bale, who conducted a machine shop in the building. Desiring certain alterations in the building and the erection of an addition at the rear, Bale entered into a contract with Martin to that end. Bale borrowed $5,000 from Farbstein with which to finance the project. It does not appear that Farbstein participated further in this venture. Plans and specifications were drawn in Martin's office. As originally drafted, these did not include a ladies' restroom in the new addition nor provide for a window therein. During construction, Bale advised Martin there would be women employees and it would therefore be necessary to have a restroom for them. This resulted in an oral change of plans, whereby a ladies' restroom was provided and the window here in question was installed.

Contractor Martin commenced work on the new structure in November or December, 1951. He completed it in January or February, 1952. Bale thereupon accepted it and 'took occupancy.' Bale subleased the new addition to Bal-Aero in March or April, 1952. In the following October, it was subleased to Tepfer Aircraft Company, which took possession. Thereafter, Bale had nothing to do with the premises except to collect the rent. Plaintiff worked in this new addition from March or April, 1952, to the happening of the accident on March 23, 1953, first as an employee of Bal-Aero and then for Tepfer, when the latter took possession of the premises.

The window was described as a 'standard utility window.' Mr. Sill, an architect, testified that such a window was not commonly found in restrooms but was generally used in utility buildings--'farm type buildings.' The window was used for ventilation and was the only one in that end of the shop. The bottom of the window was four feet from the floor. It was approximately 3 1/2 feet high and 2 3/4 feet wide.

The window was delivered as a unit directly to the job by Miller and installed by contractor Martin. It consists of a steel frame which is cemented into the framework of the building and permanently affixed thereto. Inside this frame two window frames are fitted. These are divided so that the lower half is stationary, and the upper half opens inward from the top like a transom. It is designed so that it can be lifted out and placed on the floor (there being no hinges) and thus provide better ventilation in warm weather. There is a latch at the top of the vented section which is operated manually. There are two brackets (sometimes referred to as clips) or stops--one on each side at the bottom of the window--which control the distance the window opens. These brackets are steel, an eighth of an inch thick, 1 1/4 inches high, and 1 1/2 inches long. Each bracket is attached by two screws. No chains or side arms are provided for the operation of the window. This, of course, is perfectly apparent.

Plaintiff testified she opened and closed the window practically every working day from March or April, 1952, to the time of the mishap on March 23, 1953. She used a stick to release the catch at the top of the window. She held the stick in her right hand and let the window down with her left. In opening and closing the window plaintiff was directly facing it. On the morning of the accident she had gone through this procedure and while placing the stick in the corner the window fell and struck her.

After the accident, examination disclosed the brackets were bent inward, i. e., toward the room. It was the opinion of the architect that the brackets would be bent back by the continual use of the vent.

In seeking a reversal, plaintiff contends the court erred in (1) not permitting the jury to pass on the issue of negligence; (2) in holding that the doctrine of res ipsa loquitur does not apply; and (3) in the exclusion of certain evidence.

'As stated in Burlingham v. Gray (1943), 22 Cal.2d 87, 94, 137 P.2d 9, 'A court may direct a verdict only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff [citations].'' Sokolow v. City of Hope, 41 Cal.2d 668, 670, 262 P.2d 841, 842.

Liability of General Contractor.

It is the general rule that when a contractor's work has been completed and accepted by the owner, the contractor is not thereafter liable to third persons for injury suffered by reason of the condition of the work, even though he was negligent in carrying out the contract. Hale v. Depaoli, 33 Cal.2d 228, 230, 201 P.2d 1, 13 A.L.R.2d 183; Schifano v. Security Bldg. Co., 133 Cal.App.2d 70, 72, 283 P.2d 306; Johnston v. Long, 56 Cal.App.2d 834, 837, 133 P.2d 409. Plaintiff concedes that defendant Martin's work was accepted by Bale in the case at bar. Plaintiff contends, however, that this case comes within an exception to the general rule: 'If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.' Hale v. Depaoli, supra, 33 Cal.2d at page 231, 201 P.2d at page 3. This exception relates to latent defects in the construction of the article or structure in question, the existence of which is known or reasonably should be known by the contractor. It has no application to a situation where no structural defect is involved. There was no evidence that the window in question was not properly fastened to the masonry, or that the window was itself improperly constructed. Nor was there any evidence that the steel brackets, which held the transom-like upper portion of the window in place when it was open, were defective at the time the window was installed.

The only evidence offered by plaintiff on this issue was (1) that there was no chain or side arm which would secure the window in place when it was open, and (2) that this type of window was normally used only in barns and other utility buildings. The latter is totally irrelevant on the issue of defective construction. The former would be relevant only if it were shown that a chain or side arm normally accompanies this type of window. The evidence, however, showed that the window in question was no different from other windows of the same type and no chain or other device was normally used. It was 'strictly a standard utility window.'

An analogous factual situation was involved in Schifano v. Security Bldg. Co., supra. In that case the defendant building contractor was employed by the building owner to construct a box with a lid which could be raised for deposit of waste papers therein. Plaintiff was an employee of a tenant in the building when the waste receptacle was installed on her floor. She used it without incident for several months before the accident. On the occasion of the accident, she was emptying a basket of waste paper and leaning over when the box lid, which she had opened, fell on her head and injured her. The trial court nonsuited plaintiff as against the contractor. In affirming, the court distinguished Hale v. Depaoli as follows:

'In Hale v. Depaoli, a porch railing gave way under plaintiff's weight, causing her to fall some distance to the pavement below. There was evidence from which it could be inferred that the railing had been defectively constructed by the contractor. Such condition was not one which was obvious to either the owner or third persons who might rely on the railing for support. It was a concealed defective condition of a highly dangerous character, for the very purpose of the rail was to prevent persons from falling to the area below. The court stated that 'A structural defect in this protection would be 'reasonably certain to place life and limb in peril', and there was evidence from which a jury might infer that the railing was not erected in accordance with sound building practice.' [33 Cal.2d 228, 201 P.2d 3.] There is no such testimony in the present case. Here danger in using the waste receptacle was an obvious one. It was an extremely simple contrivance and its operation was fully under the control of the person using it. If the lid balanced precariously, that was something immediately observable by the person operating it. Plaintiff herein had used it hundreds of times. There is no evidence that there was anything different about the box on the day of the...