Jackson v. Georgia-Pacific, Inc.

• Decision Date: 07 September 1961
• Docket Number: INC,GEORGIA-PACIFI
• Citation: 15 Cal.Rptr. 680,195 Cal.App.2d 412
• Court: California Court of Appeals Court of Appeals
• Parties: Kenny Dale JACKSON, Brinda Fay Jackson, Albert David Jackson, and Darrell Jackson, minors, by and through Willie Mae Jackson, their guardian ad litem, Plaintiffs and Appellants, v., Feather River Pine Mills, Inc., Chester Reynolds, and Ralph Roberts, Defendants and Respondents. Civ. 9832.

Page 680

15 Cal.Rptr. 680

195 Cal.App.2d 412

Kenny Dale JACKSON, Brinda Fay Jackson, Albert David Jackson, and Darrell Jackson, minors, by and through Willie Mae Jackson, their guardian ad litem, Plaintiffs and Appellants, v. GEORGIA-PACIFIC, INC., Feather River Pine Mills, Inc., Chester Reynolds, and Ralph Roberts, Defendants and Respondents.

Civ. 9832.

District Court of Appeal, Third District, California.

Sept. 7, 1961.

Rehearing Denied Oct. 2, 1961.

Hearing Denied Nov. 1, 1961.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants.

Peters, Peters & Hoffman, Chico, Partridge, O'Connell & Partridge, San Francisco, Robert V. Blade, Oroville, for respondents.

Fitzwilliam, Memering & McDonald, Sacramento, amicus curiae in support of respondents.

PEEK, Justice.

The plaintiffs, all minors, by and through their guardian ad litem, appeal from an adverse judgment in an action brought to recover damages for the wrongful death of their father, David Jackson, who drowned while working on a log pond operated by his employer, Feather River Pine Mills, Inc.

At the time of his death, Jackson was working the night shift. His job required him, from his position on a float in the millpond, to push logs onto a slip which carried them into the mill. To do this, he used a 'pike pole,' which he would jab into the log in order to steer it onto the slip. The float upon which he worked was securely anchored to the bed of the pond, some 60 or 70 feet from the shore where the water was approximately 10 feet deep.

On the evening of the fatal accident, Jackson, in the course of his work, jabbed a log too high, lost his balance and fell into the water. Another employee tried to rescue him, but he slipped from the employee's grasp and was drowned. Artificial respiration was administered, but by the time the fire department arrived with a resuscitator and a physician arrived at the scene, Jackson was dead.

This action was then instituted by plaintiffs against Georgia-Pacific, In.; Feather River Pine Mills, Inc.; Inman-Poulson Timber Company; Frank Lisbon, general manager; Hilman Nugent, plant superintendent; Chester Reynolds, day mill foreman; and Ralph Roberts, night mill foreman, of Feather River Pine Mills, Inc., respectively.

Prior to trial, the action was voluntarily dismissed as to all except the individual defendants. Hence, this appeal is only concerned with the judgment as it affects them.

The theory of the plaintiffs in the trial court, as well as here, was that the individual defendants were guilty of negligence in that they breached both their common-law duty to provide a safe place of employment for decedent and the duty not to require him to work in an unsafe place, as well as their statutory duty as 'employers' under section 6304 of the Labor Code. Their primary attack is directed at the following instructions, which were given by the trial court.

'You are instructed that no defendant employee can be held liable unless he committed a positive, direct and affirmative act of negligence which proximately caused the decedent's death. Again, I will call your attention to the fact that negligence may consist of a negligent act or negligent omission under the definition heretofore given to you at length.

'You are instructed that a supervisory employee is not presonally liable to the children and heirs of a deceased employee for failure to provide said deceased employee with a safe place to work.

'It is undisputed that defendants, Hilman Nugent, and Ralph Roberts were each employed by Feather River Pine Mills Company, acting in the scope of their respective employments and as such were agents of such Feather River Pine Mills Company at the time said decedent met his death. Each defendant, as such agent, may be liable to plaintiffs for any negligent or wrongful act that is proved to be a proximate cause of the death in this case. A failure of an agent to provide a safe place to work or to secure any particular safety equipment that might be deemed advantageous or useful does not support a civil action for damages in the circumstances disclosed by the evidence in this case.

'In view of the circumstances disclosed by the evidence in this case, Ladies and Gentlemen of the Jury, you are instructed to return a verdict in favor of defendants Mr. Frank Lisbon and Mr. Chester Reynolds. Directing such verdict however, should not be taken by you as inferring either that a verdict against the other two defendants, one or both of them, is or is not proper; their liability is determined under the evidence and in accordance with the law stated to you.'

It appears from the testimony of Lisbon, the general manager, when called as a witness under section 2055 of the Code of Civil Procedure, that he did not actually hire laborers and knew of Jackson's employment only from personnel records; that while in a 'general sense' the overall safety of the personnel at the mill was under his direction and control, the details were not; and that the safety practices on the log pond at the time of the fatal accident were under the control of the night foreman, Roberts. Lisbon further testified that Nugent, the plant superintendent, and both Reynolds, the day foreman, and Roberts, the night foreman, had authority to requisition safety devices without consulting him; that such devices could include a mechanical resuscitator, which was not at the plant at that time; that there were no life preservers or life vests available at the float, nor was any such equipment intended for use by the men working on the float; that had any such item been requested by the foreman and the order approved by Nugent, it would have been purchased; and that the foremen were supposed to instruct the employees as to safety methods.

Defendant Nugent was also called under section 2055, and testified that he was in charge of the entire operation of the plant; that Jackson had been hired by Roberts with his approval. His testimony concerning life saving equipment and where it was placed about the pond was essentially the same as Lisbon's. Additionally, he testified to plant procedures concerning safety; that a committee composed of Lisbon, the foremen, and other key personnel periodically inspected the plant; and that at the time of the fatal accident they were following previously approved safety procedures. Nugent's testimony in this regard was corroborated by one Brown, a safety engineer for the insurance company which carried the workmen's compensation policy on the plant. Brown also testified he had never advised the company that it should supply any of the safety devices previously mentioned.

Roberts, when called as a witness under section 2055, testified that he was foreman of the entire plant, which included the pond; that he gave no safety instructions concerning equipment; that there were pike poles and ropes on the float, but they were not for safety purposes; and that he had never requested any lifesaving equipment prior to the time of the accident. He also testified that where Jackson fell, the water was so dirty that it would have been impossible to see him. Additionally, he stated that artificial respiration was used on Jackson from the time he was pulled out of the water until the firemen arrived with a mechanical resuscitator. The testimony as to the time when Jackson fell into the pond and the time when the firemen arrived with the mechanical resuscitator ranged from approximately one-half hour to more than an hour. Roberts also testified that the mill nurse, who was at the scene, stated that Jackson had a pulse at approximately 9 p. m., or nearly one hour after he fell into the pond.

Reynolds, when called under section 2055, testified that he was away from the plant at the time of the accident; that he was day foreman, or superintendent, and had no connection with the night shift; that no lifesaving apparatus was intended for the men on the float; that he had not requested lifesaving equipment and did not know of any request ever having been made for such equipment, nor had he ever discussed the same with his immediate superior, Nugent.

From the record, as summarized, it would appear that Reynolds, the day foreman, was the only one of the four individual defendants who had nothing whatsoever to do with the activities of the night shift. As to the remaining defendants, Lisbon was in a 'general sense' responsible for the safety of the...