Housewright v. Pacific Far East Line, Inc.

• Decision Date: 18 August 1964
• Citation: 229 Cal.App.2d 259,40 Cal.Rptr. 208
• Court: California Court of Appeals Court of Appeals
• Parties: Roy J. HOUSEWRIGHT, Plaintiff and Appellant, v. PACIFIC FAR EAST LINE, INC., a corporation, Defendant and Respondent. Civ. 21229.

Page 208

40 Cal.Rptr. 208

229 Cal.App.2d 259

Roy J. HOUSEWRIGHT, Plaintiff and Appellant, v. PACIFIC FAR EAST LINE, INC., a corporation, Defendant and Respondent.

Civ. 21229.

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

Aug. 18, 1964.

[229 Cal.App.2d 262] Jack H. Werchick, San Francisco, for appellant.

Boyd, Flageollet & Benson, San Francisco, for respondent, Herbert Chamberlin, San Francisco, of counsel.

TAYLOR, Justice.

Plaintiff, Roy J. Housewright, appeals from a judgment in favor of defendant, Pacific Far East Line, Inc., hereafter called Pacific, entered upon a verdict directed by the court in his action for damages for personal injuries.

Appellant was a maintenance mechanic employed by Ideal Cement Company, hereafter called Ideal. Pomeroy Construction Company had contracted with Ideal for the sale of 160,000 barrels of cement, and with Pacific for the transportation of the cement from Ideal's Redwood City plant to the construction site in Guam. Pacific, under its agreement, was to unload the cement from the vessels into the shoreside silos in Guam. After purchasing a new type of cement discharging equipment from Gordon Machinery Company, hereafter called Gordon, Pacific decided to test the equipment and obtained the cooperation of Ideal and Gordon. Preparations for the test were made at Ideal's Redwood City plant. Appellant was injured during these preparations. On November 7, 1956, he was knocked from a high platform by a load lifted to the platform with a crane operated by Roy Green, another Ideal employee assigned to the test. Appellant and Green were both working under the direction of Camblin, an employee of Gordon.

At the close of appellant's case, the trial court dismissed the complaint as to the other defendants and granted Pacific's motion for a directed verdict on the ground that in conducting the test, Ideal and Gordon were independent contractors rather than agents of Pacific. Appellant argues that it was error to direct the verdict for Pacific, as there was some evidence to support a judgment in his favor. He contends that the jury should have been allowed to determine the relationship of Pacific, Ideal and Gordon and the negligence of Camblin.

Viewing the record most favorable to the appellant, as we must on appeal from a judgment entered on a directed verdict or nonsuit (Sanchez v. Rodriguez, 226 A.C.A. 548, 551, 38 Cal.Rptr. 110), the following facts appear: In the fall of 1956, the Pomeroy Construction Company, hereafter referred to as Pomeroy, a word-wide general contractor, received a contract from referred to as Pomeroy, a world-wide general Subsequently, Pomeroy contracted with Ideal for the 160,000 barrels of cement required. Under this agreement, Ideal was to dredge its dock to accommodate seagoing Pomeroy also contracted with Pacific for the shipment of the cement at regular intervals from Redwood City to Guam. Pacific was also obligated to discharge the cement from its vessels into the shoreside silos in Guam. Since Pacific had not had experience with shipping bulk cement on regular cargo carriers, Pacific contracted with Gordon for the purchase of new airlift machinery to vertically discharge the cement from the hold of the cargo vessels to the shoreside storage facilities in Guam.

vessels and load the cement directly into the ships.

Although there was no contract between Ideal and Pacific, officials of both companies discussed the dock dredging operations. In the course of these discussions, Pacific's vice president Sorge talked to Ideal's former regional manager Lang. Because Lang had over 50 years of experience in the cement business, Sorge mentioned Pacific's plan to ship bulk cement in cargo vessels and discussed the airlift discharging equipment Pacific had purchased from Gordon for $75,000. Lang cautioned Sorge that the abrasive nature of the cement would affect the performance of the airlift equipment. Pomeroy also expressed doubts about the proper functioning of the equipment.

Thereafter, Sorge contacted Gordon and indicated that Pacific wanted to test the equipment before shipping it to Guam. A preliminary test at the Gordon plant in Marysville on October 19, 1956, was unsuccessful. Although not obligated to do any testing under its sales agreement with Pacific, Gordon orally agreed to find a more satisfactory test site in the Sacramento Valley. After this search proved unsuccessful, Sorge contacted Lang. Lang, as a matter of courtesy, offered the use of Ideal's facilities at Redwood City and indicated that Ideal would make available the necessary cement and supply whatever employees it could.

This understanding was oral and informal. Lang indicated that Ideal would not make a charge for the use of its facilities. Sorge told Gordon to contact Lang about some of the details of the test. Sorge, Pacific's engineer Novitski, and another Pacific official were present at this test which provided unsatisfactory results. Thereafter, a second test involving liquid coke was arranged.

When the liquid coke test resulted in a fiasco, Sorge had even greater doubt that the machinery purchased from Gordon for $75,000 would perform the task for which it was purchased. On October 31, three weeks before the first bulk cement shipment was due in Guam, Sorge attended a meeting at the Gordon plant in Marysville. Sorge indicated that before shipping the airlift equipment overseas, Pacific wanted another test.

Again, Gordon could not provide another test site and Sorge contacted Lang who renewed his earlier offer of cooperation from Ideal. By this time, although Pacific had other alternatives for unloading the cement, the matter was of some urgency as one ship was on the way to Guam and Pacific's contract with Pomeroy provided for the payment of demurrage if the cement was not delivered on schedule. Sorge put Novitski in charge of the arrangements for this third test, and indicated to several other Pacific officials that they were to be present at the test.

Novitski contacted both Gordon and Ideal. Gordon sent Camblin and Ross to Redwood City to supervise the test which was to simulate the height and rate of vertical discharge from a ship as closely as possible. Camblin was scheduled to supervise the airlift equipment in Guam for $50 a day plus expenses to be paid by Pacific. He saw the surplus 10' X 15' platform on Ideal's premises and was given permission to use it in the test.

One of the two 90 horsepower motors Pacific had purchased from Gordon was to be used in the test. The motor and other parts of the airlift equipment were sent by Gordon to Ideal's Redwood City plant. Appellant, who had been employed by Ideal as a maintenance mechanic for many years The accident occurred in the early afternoon when Camblin told Green to pick up the fan or blower of the airlift machine and move it a few inches to the right. When Green pushed the lever, the crane began to run wild and swung around knocking the appellant and Camblin off the plaform. Both fell to a concrete slab and were injured. Appellant's injuries subscquently prevented him from resuming his permanent employment with Ideal.

was assigned to the test site by his boss, Ideal's master machinist, to assist in the assembling of the airlift equipment under the direction of Camblin. At the time of the accident, appellant and Camblin were on the 22' high platform which was about 10' X 15' in area. Appellant was welding some parts of the equipment. Camblin was directing Green, another [229 Cal.App.2d 265] Ideal employee, who had been assigned to the test site with a large crane.

I RELATIONSHIP OF THE PARTIES

The first question is whether there is any substantial evidence or any reasonable inference from which it could be implied that Ideal and Gordon were the agents of Pacific in conducting the test. Respondent argues that the trial court properly concluded that they were independent contractors and that the evidence is reasonably susceptible to only one inference. We believe that reasonable minds may well differ as to the inferences to be drawn from the evidence here.

The question of whether an agency relationship has been created is a question of fact (Thayer v. Pacific Elec. Ry. Co., 55 Cal.2d 430, 11 Cal.Rptr. 560, 360 P.2d 56). An agency relationship may be informally created. No particular words are necessary to bring it into being. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the other's direction (Malloy v. Fong, 37...