Mezerkor v. Texaco, Inc.

• Decision Date: 26 September 1968
• Citation: 266 Cal.App.2d 76,72 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Parties: Nick MEZERKOR, Plaintiff and Appellant, v. TEXACO OIL COMPANY, a corporation, and Andrew Volosing, Defendants andRespondents. Civ. 24259.

Page 1

72 Cal.Rptr. 1

266 Cal.App.2d 76

Nick MEZERKOR, Plaintiff and Appellant, v. TEXACO OIL COMPANY, a corporation, and Andrew Volosing, Defendants andRespondents.

Civ. 24259.

Court of Appeal, First District, Division 1, California.

Sept. 26, 1968.

Rehearing Denied Oct. 24, 1968 see, 72 Cal.Rptr. 639

Hearing Denied Nov. 20, 1968.

Salvador A. Liccardo, Caputo, Liccardo & Burriesci, San Jose, for plaintiff.

Campbell, Custer, Warburton, & Britton, by John R. Fitzsimmons, Jr., San Jose, for respondents.

Edward I. Pollock, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upland, Leonard Sacks, Hollywood, amici curiae.

SIMS, Associate Justice.

Plaintiff, the lessee-operator of a service station, who seeks to recover damages for personal injuries, has appealed from a judgment, entered upon a verdict of jury, which denied him recovery against his lessor-supplier, ¹ and from an order denying his motion for a new trial. ² He contends, with assistance from amici curiae, that the court erred in refusing to give the jury his requested instructions concerning the provisions of the Labor Code which require an employer to furnish an employee a safe place to work, and further instructions setting forth applicable industrial safety orders. He also asserts that the court committed prejudicial error by instructing the jury with respect to the defenses of assumption of risk and contributory negligence, and in failing to give his proffered instructions on the rules of reasonable necessity and momentary forgetfulness.

Error is found in the refusal to give plaintiff's instructions concerning the defendant's duty to purnish the plaintiff a safe place to work, and in unqualifiedly instructing the jury on assumption of risk. No error is found in connection with the other specifications. After an examination of the entire cause, including the evidence, it is determined that the errors complained of and found did not result in a miscarriage of justice. The judgment must be affirmed.

Plaintiff seeks to recover for injury to the fingers of his right hand which resulted in the permanent loss of the distal tip of his middle finger, portions of the index finger and thumb, and limitation of motion in the ring finger. The injuries were received August 13, 1964, when plaintiff attempted to start the air compressor at the service station which he operated under a lease and agreement of sale with defendant, and caught his fingers in the pulley belt of the machine.

According to the plaintiff, at the time of the accident, he had been operating the service station under arrangements with defendant for about 15 years or more, and the compressor involved was in the station when he first took it over. The property was owned by third parties who had leased the service station and equipment, including the compressor, to the defendant (see fn. 1, supra.) At the time of the accident plaintiff was operating the service station under a lease dated July 5, 1961 for a three-year term ending August 31, 1964, with a provision for renewal for successive terms of three years each, and under an agreement of sale executed the same date as the lease.

The lease provided that the lessee should maintain the equipment. ³ Nevertheless, the uncontradicted evidence showed that at the time of the original negotiations the defendant's representatives undertook to make all major repairs. The defendant's consignee-distributor testified that it was the custom and practice of the defendant to make provision for and pay for repairs that the plaintiff was incapable of effecting personally. The plaintiff's accountant testified that plaintiff's disbursements for repairs and maintenance over a ten- year period had been minimal--less than one percent of gross sales. The defendant had in fact arranged and paid for repairs to the gasoline pumps and a hoist. At least some months, and perhaps more than a year, before the accident, the defendant, in response to plaintiff's complaint that air was leaking, put in a new underground air line from the compressor to the hoist.

The compressor itself was set away from the station in a box and it was necessary to lift up a cover to get inside to the mechanism. It was operated by a double belt running from a smaller pulley on an electric motor to a larger pulley on the compressor itself. When the electricity was on it was ordinarily actuated automatically when the air pressure dropped below a fixed amount. It was used to furnish air for customers' tires, and for the operation of two hoists, one inside and one outside the station. According to plaintiff, in the 15 years he was operating the station, the only repair to the compressor and motor was the replacement of the belt which connected the pulleys.

The repairs to the air line were ineffective. Air continued to escape from the system, and the hoist would slip down on occasion. The compressor would run constantly stantly unless the air valve was turned off, and there was a consequent increase in the electricity bills for the station. For about six months prior to the accident it had been the practice to turn the compressor off when it was not in use, and to activate it when needed by closing or opening a valve located on the corner of the box. About a month before the accident the condition of the compressed air system deteriorated so that the motor would just hum when the valve was opened, and it became necessary to activate the mechanism manually so that the motor and compressor would start operating.

The evidence is in conflict with respect to whether plaintiff advised the defendant or its representatives of the malfunction of the compressed air system and the hoist after the new air line was installed. Plaintiff, with corroboration from a part-time employee, who relieved him on Sundays and on Saturday afternoons when plaintiff wanted to get away, and from his wife, testified tht he had telephoned to the defendant's office at Moss Landing and to the office of its consignee-distributor in Hollister to complain about the manner in which the compressor was functioning. He testified that he had also told the defendant's delivery drivers and sent a note with one to advise the defendant's office that unless the air line compressor who fixed he would not pay the rent. None of the drivers on duty during the period had any recollection of such a complaint. The consignee-distributor denied receiving any such complaint after the air line had been replaced. A witness for plaintiff indicated that the threat to withhold the rent occurred before the new line was installed. Plaintiff expressly acknowledged that he had never told anyone he was starting the compressor by hand, and that his complaint was that 'the line leaked and the compressor was running all the time and it needed fixing.' The only danger allegedly mentioned was that occasioned by the hoist slipping down.

According to plaintiff's relief man, at the time of the accident the motor and compressor could be activated by putting a hand on top of the belt at one pulley and giving a pretty good push toward the other pulley. He did not like the situation and knew it was dangerous. He customarily turned the compressor on and left it run all day. He testified that there was no guard of any type located around the flywheel on the compressor. He had observed guards on other compressors, and he described to the jury the manner in which the guard would prevent anything from getting into the mechanism. With such a guard it would be impossible to start the compressor in the manner which he used, although it would be possible, with greater likelihood of getting one's fingers caught, to pull the belt from underneath. The plaintiff subsequently testified to the same effect.

Two days after the accident the plaintiff's wife called the consignee-distributor, advised him of the accident, and requested him to get the compressor fixed. The motor was repaired and the charges were paid by defendant. It was necessary to replace a bearing and the brushes, and the motor was given a general clean-up and overhaul. The repairman testified that the brushes were only used to start the motor, and that they were so worn that they would probably only work intermittently. He stated that he would not attempt to start the motor by giving the belt a pull or a shove; that he had never seen anyone do it; that the presence of two wheels and a belt and pulley, and the fact that one could not tell whether the mechanism was going to go or not, made it obvious to him that one might get injured by the moving parts.

The plaintiff testified that it was more or less routine to push the mechanism with his hand to start the motor after it was worn out. He stated that although he did not like the inconvenience of going over to start it all the time, he was not aware of any danger in it, and he had never been told he might get hurt starting it by hand. He said his sole concern was with the operation of the hoist. He acknowledged, however, that his friends who had started the motor on occasion had told him that they almost got their hands caught in the compressor.

On the day of the accident a vehicle came in for an oil change. It was positioned above the hoist, the hoist was started, and then it stopped when the vehicle was a little way, about 10 or 12 inches, off the ground. The compressor motor had stopped. Plaintiff demonstrated how he pushed the apparatus and testified, 'Somehow my fingers got in there. I don't know how,' when the motor started after a second shove. He denied that he pulled on the belt and stated that he pushed from the big pulley on the compressor to the small pulley on the motor, and caught his finger on the top of the big one. The defendant introduced plaintiff's testimony from a prior deposition in which he testified he caught his fingers in the bottom of the little pulley, and that he held the hand, as distinguished from the wheels, and gave it a...