Popejoy v. Hannon

• Decision Date: 11 May 1951
• Citation: 37 Cal.2d 159,231 P.2d 484
• Parties: POPEJOY v. HANNON et al. L. A. 21532
• Court: California Supreme Court

Page 484

231 P.2d 484

37 Cal.2d 159

POPEJOY v. HANNON et al.

L. A. 21532.

Supreme Court of California

May 11, 1951.

Rehearing Denied June 7, 1951.

Sidney A. Moss and Henry F. Walker, Los Angeles, for appellants.

Rogers & Carnes, Paramount, and Byron R. Bentley, Los Angeles, for respondent.

EDMONDS, Justice.

H. H. Hannon, S. F. Hannon and Helen Hannon are partners doing business as Mutual Molding and Lumber Company. H. Sugarman, who conducted a trucking business on his own account, was employed by the Hannons as foreman of their lumber yard. Mac Wade Popejoy worked for Sugarman as a truck driver. Although his trucking business was an independent enterprise, the Hannons permitted Sugarman to have a telephone in the lumber yard which was listed in the name of Sugarman Trucking Company.

Popejoy sued for damages for personal injuries sustained on the premises of the partnership. The appeal from the judgment entered upon the verdict of a jury in his favor, and from the order denying a motion for judgment notwithstanding the verdict, principally concerns rulings upon instructions.

There is little dispute as to how the accident occurred. The essential facts are as follows:

During working hours, when he was not driving for Sugarman, Popejoy occasionally and gratuitously helped around the lumber yard by answering the telephone, removing blocks of wood from tiers of lumber as they were being moved about the yard, and assisting with the loading of customers' trucks. Usually the trucks were loaded by means of a wheeled machine, known as a hyster, which is used to lift stacks of lumber on horizontal prongs movable in a vertical plane.

On the day of the accident, 'Shorty' Kemp, a lumber yard employee, was loading a customer's truck by means of the hyster. Kemp left the hyster to do other work. Popejoy then operated the hyster and moved the top tier of lumber from a stack to the customer's truck. When he had raised the remaining tier about two feet from the ground, a nearby stack of lumber fell toward him. Popejoy jumped from the hyster, striking his knee upon the asphalt surface of the lumber yard. The fall resulted in a fractured kneecap and permanent injury.

At the time of the accident Sugarman said, 'Mac, it's all my fault. I shouldn't have had that load on the bottom.' This statement was amplified by his testimony at the trial. He told the jury that the bottom tier of the stack which fell had been put in place by him about a week prior to the accident. He had then noticed that the lumber was warped and loose. Later, he said, due to lack of space in the lumber yard, he placed two more tiers of smooth lumber on top of the pile. He thought the lumber would be safe although the lowest tier was somewhat wobbly.

Supplementing this testimony there was evidence to the effect that smooth boards tend to slide more easily than rough lumber. Admittedly the stack which fell did not have 'stickers' which are usually placed in a stack of lumber to prevent slipping.

The Hannons denied the allegations of the complaint and set up the affirmative defenses of contributory negligence and assumption of risk. Generally, the defense at the trial was lack of proximate cause and absence of any negligence.

The Hannons present several grounds as justifying a reversal of the judgment and the order denying a motion for judgment notwithstanding the verdict. They contend that the trial court erred in giving a contingently requested instruction, the contingency not having occurred. Other points relied upon relate to the trial court's refusal to instruct the jury upon the scope of the invitation to Popejoy to be upon the property, the duty owed to others than invitees, and the doctrine of assumption of risk. An instruction attacked as erroneous told the jury that failure to give warning to an invitee of certain dangers constitutes negligence. Complaint is made of the trial judge's statement of the facts under which Popejoy was to be considered an invitee, and the definition of the duty owed to an invitee. The Hannons also attack as erroneous the instruction to the jury which declared that Popejoy might recover damages against them under the doctrine of respondeat superior.

Popejoy requested an instruction upon the doctrine of res ipsa loquitur. In order to determine the necessity for submitting a qualifying instruction, the Hannons asked the trial judge whether Popejoy's proposed instruction would be given. When there was no answer to the inquiry, the Hannons submitted an instruction to be given only in the event that the jury was instructed as requested by Popejoy. His instruction was not given, but the jury nevertheless was charged in the form submitted by the Hannons as follows: 'The defendants, however, are not required to prove by a preponderance of the evidence that they were free from negligence which proximately caused the lumber to fall. They are bound to produce only sufficient evidence to create in your minds such doubt as to why the lumber fell that you cannot say you are convinced by a preponderance of the evidence that the falling of the lumber was proximately caused by the negligence of the defendants.'

The Hannons say that when the jury was not instructed upon the doctrine of res ipsa loquitur, this instruction cast upon them the duty to produce evidence relating to an issue upon which Popejoy had the burden of proof. In an action founded upon negligence, the burden is upon the plaintiff to prove wrongful conduct of the defendant which was the proximate cause of injury. The challenged instruction, the argument continues, imposed upon the Hannons the duty to produce evidence to the effect that they were free from negligence which proximately caused Popejoy's injury. The error could not have been prejudicial, Popejoy answers, because the jury was instructed that the burden of proof is upon the party who asserts the affirmative of an issue.

Not having instructed the jury upon the doctrine of res ipsa loquitur, the qualifying instruction contingently requested by the Hannons should not have been given. Instructions of the court correctly stating the requirements laid upon a plaintiff did not cure the error. By one instruction the jury was told that the burden of proving negligence rested upon Popejoy. The reasonable construction to be placed upon the challenged instruction is that the Hannons were required to present direct evidence either of their freedom from negligence or the absence of proximate cause. Clearly the two instructions are inconsistent.

However, the record shows abundant evidence offered by Popejoy tending to prove his status as an invitee which, if not overcome by the Hannons, would entitle him to a verdict. The effect of the instruction complained of was to say that the Hannons, in order to defeat Popejoy's claim, had the duty to produce a preponderance of evidence to the contrary. There is little difference between the challenged instruction and one given at the request of the Hannons which reads, in part: 'When the evidence is contradictory, the decision must be made according to the preponderance of evidence, by which is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability of truth lies therein. Should the conflicting evidence be evenly balanced in your minds, so that you are unable to say that the evidence on either side of the issue preponderates, then your finding must be against the party carrying the burden of proof, namely, the one who asserts the affirmative of the issue.' Under these circumstances, it cannot be said that the challenged instruction so prejudiced the Hannons as to require a reversal of the judgment. (Cal.Const., Art. VI, § 4 1/2.)

Also assigned as error is the refusal to instruct the jury upon the effect of an invitee's exceeding the scope of his invitation and in regard to the duty owed to others than invitees. One theory of the Hannons is that Popejoy was not an invitee when operating the hyster, although he might have been an invitee as to the premises in general.

At the request of both parties, the jury was instructed as to the distinctions between an invitee and a licensee, and was told that '(T)oward an invitee, he who extended the invitation, express or implied, is obliged to refrain from active negligence and to exercise ordinary care to keep the premises in a condition reasonably safe for the invitee in the pursuit of a purpose embraced within the invitation'. But the court refused to give the instruction requested by the Hannons to the effect that, under certain circumstances, an express or implied invitation may be limited in scope; if the invitation extends only to a certain portion of the premises, the invitee is a licensee or trespasser as to the remainder.

Upon the issue as to whether Popejoy was an invitee at the time and place of the accident, there is only slight conflict in the evidence. Silas Hannon testified that he had never seen Popejoy operate the hyster, nor did he ever request him to do so. About three weeks prior to the accident, testified Hannon, some of the employees had been on and about the machine during their lunch period. He instructed Sugarman to keep all men off of it with the exception of 'Shorty' Kemp, but this order was never relayed to Popejoy. Sugarman testified that he had never directed Popejoy to use the hyster. Concededly, Popejoy knew the machine belonged to the Hannons and not to his employer, and that he was neither obligated nor paid to operate it. These facts, the Hannons argue, show that, in operating the hyster, Popejoy was not an invitee but acted as a mere volunteer, gratuitously and outside the scope of the invitation to him to be in the lumber yard.

However, Sugarman, when called as a witness for the Hannons, told the jury that he had seen Popejoy operate the hyster upon several occasions prior to the accident, and had...