Larramendy v. Myres
| Decision Date | 21 July 1954 |
| Citation | 272 P.2d 824,126 Cal.App.2d 636 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LARRAMENDY et al. v. MYRES et al. Civ. 19879. |
Jack Schnider, Robert J. Sullivan, Santa Monica, for appellants.
James C. Hollingsworth, Hammons, Willard & Todd, Ventura, for respondents.
Action for damages resulting from burns received by the minor plaintiff when a smoke-producing device, used by her in a dancing act, set fire to her dress. In a trial without a jury, plaintiffs obtained judgment against defendant Abbott and Bordner, individually, and against defendants Abbott and Bordner doing business as Abbott's Magic Novelty Co. Those defendants appeal from the judgment.
Upon motion of plaintiffs the action was dismissed as to defendants Myres, Groves, and High School District. Motions for nonsuits were granted as to defendants Francine Lanteri, Jolene Lanteri Jenkins, and George Boston.
Defendants Francine Lanteri and Jolene Lanteri Jenkins, known as the Lanteri sisters, conducted a dancing school in Ventura. Deanna Larramendy, plaintiff herein, 12 years of age, was a pupil in that school who had been taking ballet and toe dancing lessons about two years. On April 15, 1950, the Lanteri sisters staged a dancing exhibition in the auditorium of the Ventura Junior College wherein several pupils of the dancing school participated. Deanna was chosen for the leading role--to play the part of Persephone in a ballet, based on the myth of the seasons, known as 'The Underground Queen.' It was a part of her role, while dancing, to step on or trip a smoke-making device and thereby cause a puff or cloud of smoke to arise from the floor. Then, out of the smoke or 'illusion,' Pluto would arrive on the stage.
Francine Lanteri read, in a catalogue or trade magazine 'for stage props,' an advertisement regarding a smoke-making device known as 'Abbott's Pufferoo.' She wrote to Abbott's Magic Novelty Company, located on Sunset Boulevard in Los Angeles and ordered the smoke-making device sent to her by mail C.O.D. Thereafter she received the device by mail C.O.D. Defendants Abbott and Bordner operated Abbott's Magic Novelty Company located at 6505 Sunset Boulevard in Los Angeles. In October, 1949, an advertisement bearing the title 'Abbott's Pufferoo' was placed in a magazine, known as 'Genii,' by Abbott's Magic Novelty Company, Colon, Michigan.
The device was received in evidence, but it has not been forwarded to this court. It has not been described in any of the briefs or in the reporter's transcript. It seems from statements made by witnesses in explaining how the device was operated (and from written directions which were with the device) that the device consisted of: a receptacle into which explosive powder was poured; a 4 1/2 volt battery; a filament wire which extended horizontally through the middle of the powder receptacle and was connected with one end of the battery and a metal piece above a contact post; and another wire which was connected with the other end of the battery and with the contact post. In the package in which the device was received, there was a bottle of explosive powder and also a piece of paper containing directions for operating the device. The writing which was on that paper is set forth below. 1 After the receptacle was half filled with powder--to the place where the powder touched the filament wire, and after the device was placed on the floor, the device was operated by stepping on the metal piece (above the contact post) which contact lighted the filament wire which ignited the powder. There was evidence that the device would not work if the receptacle was more than one-half filled with powder and the powder covered the filament wire. (It was stated that if the powder covered the wire, the wire would not ignite the powder because the powder would absorb the heat.)
Prior to the production of the play, there were three rehearsals in which the smoke device was used. On one of those occasions the device did not work when Deanna stepped on it. On the two occasions when it worked, Deanna did not see any flame coming from it. Francine Lanteri did not see any flame come from the device when it was used at rehearsals. During rehearsals Deanna wore shorts or tights. During the play she wore a ballet costume which was a flimsy dress with a full skirt made of six or seven layers of tarlatan or tulle. The bottom hem of the skirt was about nine inches from the floor, and the diameter of the skirt at the bottom hem was about three feet.
The device was placed on the stage for use by Deanna. During the play when she stepped on the metal contact piece there was a puff of smoke, and a flame from the device set fire to her dress and she was severely burned.
The court found, in part, as follows: The device was manufactured, sold, and supplied by defendants Abbott, Bordner, and Abbott and Bordner doing business as Abbott's Magic Novelty Co. The device was designed, manufactured, sold and supplied for the purpose of emitting a puff of smoke and creating an illusion in the staging of performances such as said ballet performance. The device was imminently, inherently, and manifestly dangerous in that in addition to producing a puff of smoke it produced a large flash of flame when operated according to the instructions furnished by said defendants, and when so operated it was likely to cause dress material such as that worn by Deanna to become ignited, all of which was known or should have been known by said defendants. At said performance Deanna stepped on the device in accordance with directions accompanying the device, and as a proximate result thereof a flash of flame was emitted which ignited the dress and caused it to burst into flame and severely burn Deanna. The device was dangerous for its intended use, namely, that of creating an illusion, and said danger was known or should have been known to said defendants. The device was used pursuant to directions which accompanied the device. Said defendants neglected to reasonably warn and inform Deanna of the dangerous propensities of said device. The only warning and information given to Deanna was that set forth in said directions, and said warning and information advised her only as to the danger from smoke and not as to the danger of fire. Deanna was not contributorily negligent. There was no intervening causation or negligence of a third person that would relieve said defendants from liability.
Appellants contend that they owed no legal duty to plaintiffs and that consequently there was no liability on the part of appellants. They argue that there was no evidence of any personal relationship between them and plaintiffs; that the device was purchased by the Lanteri sisters, and that the purchase involved no oral representations and was based on an advertisement. 'The courts of this state are committed to the doctrine that the duty of care exists in the absence of privity of contract not only where the article manufactured is...
To continue reading
Request your trial
-
Di Muro v. Masterson Trusafe Steel Scaffold Co.
...183; Dow v. Holly Mfg. Co., 49 Cal.2d 720, 724-727, 321 P.2d 736; Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521; Larramendy v. Myres, 126 Cal.App.2d 636, 640, 272 P.2d 824. The Division of Industrial Safety, pursuant to authority granted by section 6312 and 6500 of the Labor Code, has pre......
-
Reynolds v. Natural Gas Equipment, Industrial Indem. Co., Intervener
...1939, 14 Cal.2d 647, 96 P.2d 327; Maecherlein v. Sealy Mattress Co., 1956, 145 Cal.App.2d 275, 302 P.2d 331; Larramendy v. Myres, 1954, 126 Cal.App.2d 636, 272 P.2d 824. This duty requires reasonable care to be exercised in assembling component parts and inspecting and testing them before t......
-
Powell v. Standard Brands Paint Co.
...Corp. (1948) 32 Cal.2d 295, 195 P.2d 783; Tingey v. E.F. Houghton & Co. (1947) 30 Cal.2d 97, 103, 179 P.2d 807; Larramendy v. Myres (1954) 126 Cal.App.2d 636, 640, 272 P.2d 824; Gall v. Union Ice Com pany (1951) 108 Cal.App.2d 303, 310, 239 P.2d 48; [all decided upon principles of negligenc......
-
Southern Arizona York Refrigeration Co. v. Bush Mfg. Co.
...they are incorporated unreasonably dangerous for use. See Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345 (1942); Larramendy v. Myres, 126 Cal.App.2d 636, 272 P.2d 824 (1954). See also The S. S. Samovar (D.C.Cal.1947) 72 F.Supp. 574; Edison v. Lewis Manufacturing Co., 168 Cal.App.2d 429, 336......