Nini v. Culberg, 19005

• Decision Date: 11 August 1960
• Docket Number: No. 19005,19005
• Citation: 7 Cal.Rptr. 146,183 Cal.App.2d 657
• Court: California Court of Appeals Court of Appeals
• Parties: Ilda O. NINI, Michaeline Ninl, a minor, and Gregory Nini, a minor, by and through their guardian ad litem, Anne Pauline Sarno, Plaintiffs and Appellants, v. Roy S. CULBERG, individually and doing business as Culberg & Dorn Machine Shop, Defendant and Respondent.

Page 146

7 Cal.Rptr. 146

183 Cal.App.2d 657

Ilda O. NINI, Michaeline Ninl, a minor, and Gregory Nini, a minor, by and through their guardian ad litem, Anne Pauline Sarno, Plaintiffs and Appellants, v. Roy S. CULBERG, individually and doing business as Culberg & Dorn Machine Shop, Defendant and Respondent.

No. 19005.

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

Aug. 11, 1960.

Walter H. Medak, Walnut Creek, for appellants.

Barfield & Barfield, San Francisco, for respondent.

BRAY, Presiding Justice.

Plaintiffs appeal from a summary judgment in favor of defendant Roy S. Culberg, individually and doing business as Culberg & Dorn Machine Shop. ¹

Question Presented.

Were there any triable issues of fact?

Record.

Plaintiffs, the widow and two minor children of Earl Felix Nini, filed a complaint for damages for his wrongful death. The complaint alleged that deceased, employed by Pacific Intermountain Express Company, ² was operating one of its trucks and trailers on which was loaded a 35,000-pound printing press; that defendant, his agents and employees, were negligent in chaining or affixing said press on said truck, causing said truck to overturn on the highway; that all activities connected with the transportation of heavy loads such as the press are ultrahazardous and inherently dangerous; that as a result of said negligence deceased was killed. Defendant answered, denying the allegations of negligence, proximate cause and damages. ³

Defendant moved for summary judgment. The supporting affidavit of defendant states that defendant purchased a printing press located in St. Louis, Missouri. Desiring to have the press transported to California, defendant entered into an arrangement with P. I. E. at its Emeryville office in which the latter, for a money consideration, agreed to transport the press from St. Louis to San Francisco. Defendant then arranged with Wolfert Heavy Hauling & Erection Company that it, for a money consideration, would dismantle the press at St. Louis and there load it on a vehicle to be supplied by P. I. E.; that defendant then knew that P. I. E. for many years had been engaged in the business of transporting freight in interstate commerce and that Wolfert also for many years had been engaged in the business of dismantling and loading freight including printing presses. Defendant had no financial interest in either company nor has defendant ever been engaged in the business of freight transportation or dismantling and loading freight. Defendant did not request of P. I. E. any particular type of vehicle to be used, nor did he select the vehicle which was used. Defendant requested of Wolfert that the press, for purposes of economy, be shipped 'knocked down.' With this exception, neither defendant nor any agent or employee of his issued any instructions or directions or exercised any supervision as to the manner in which the press was to be dismantled or loaded, or the manner or method of shipment of the press, nor was defendant present when it was dismantled and loaded. Defendant did not reserve any right to direct, instruct or control or supervise either operation nor did he supply any tools or materials used, nor pay any of the workmen. Defendant first saw the press, feeder and vehicle after the accident. The facts stated are within defendant's personal knowledge and if sworn as a witness he could competently testify thereto.

In opposition, plaintiff filed the affidavit of plaintiffs' attorney, Walter H. Medak, who stated that the cause of action arose from the death of deceased when the trailer and tractor driven by him turned over near Truckee; that the press shipped on the trailer had been loaded in St. Louis 'and was shipped under instructions by defendant Culberg. During the trial, details concerning his instructions may be established which may prove that the instructions were more detailed than indicated in the defendant's Affidavit.' Depositions developed that prior to the time the truck was turned over to deceased, damage to the trailer was reported to P. I. E., the owner, and that said damage was not repaired. Plaintiffs contend that this damage was or may have been the cause of the overturning of the trailer.

The court granted the motion for summary judgment.

Were There Triable Issues of Fact? No.

Section 437c, Code of Civil Procedure, provides for the procedure followed here when it is claimed that 'the action has no merit * * *.' Affidavits of the moving party must be strictly construed and those of his opponent liberally construed, must be accepted as true and need not necessarily be composed wholly of strictly evidentiary facts. Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264. Further, as stated in the Eagle case, 19 Cal.2d at pages 555-556, 122 P.2d at page 265: 'At the outset it should be observed that there are several pertinent fundamental principles which should be observed in the application of and procedure under section 437c. The issue to be determined by the trial court in consideration of a motion thereunder is whether or not defendant has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] If that were not true controversial issues of fact would be tried upon affidavits by the court and not a jury.'

In considering the affidavits in the light of the above rules, it is well to have in mind plaintiffs' theories of their right to recover. Plaintiffs concede that the general rule is that the employer of an independent contractor is not liable for the latter's negligent acts or omissions. See Williams v. Fairhaven Cemetery Ass'n, 52 Cal.2d 135, 139, 338 P.2d 392; McDonald v. Shell Oil Co., 44 Cal.2d 785, 791, 285 P.2d 902. Plaintiffs base defendant's liability on one of two theories which they claim establish in law an exception to the rule that an employer of an independent contractor is not responsible for the latter's negligence. One is that where an employer of an independent contractor actively participates in the contractor's activities, he becomes liable for the latter's negligence. The other is based on the rule of hazardous activities which will be discussed in detail later.

So far as the first theory is concerned, an examination of the affidavits discloses no issuable question of fact. Defendant's affidavit shows that he in no way actively participated in the activities of either contractor. Informing Wolfert that he desired the press to be 'knocked down' in no wise constituted any direction as to the manner or method of loading the press on the trailer or of its transportation thereafter. Plaintiffs' counter-affidavit does not state that defendant in any manner participated in either the loading or transportation. This affidavit does not state that the affiant knows any of the facts in the case (section 437c states that the affidavit is to be made by a person having knowledge of the facts and must show that the facts stated are within the personal knowledge of the affiant). The affidavit does not dispute or contradict the facts of nonparticipation as stated in defendant's affidavit. It merely states that during the trial it may be established that the instructions given by defendant may prove to be more detailed than as stated by defendant. If such a statement causes to arise...