Swails v. General Elec. Co.

• Decision Date: 17 July 1968
• Citation: 264 Cal.App.2d 82,70 Cal.Rptr. 143
• Parties: Elma C. SWAILS, Plaintiff and Respondent, v. GENERAL ELECTRIC COMPANY, Defendant and Appellant. Civ. 23983.
• Court: California Court of Appeals Court of Appeals

Page 143

70 Cal.Rptr. 143

264 Cal.App.2d 82

Elma C. SWAILS, Plaintiff and Respondent, v. GENERAL ELECTRIC COMPANY, Defendant and Appellant.

Civ. 23983.

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

July 17, 1968.

Popelka, Graham, Hanifin, Van Loucks & Allard, by Bernard J. Allard, San Jose, for appellant.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Edward J. Niland, San Jose, for respondent.

ELKINGTON, Associate Justice.

General Electric Company appeals from a judgment in the amount of $35,000 entered in favor of plaintiff and respondent, Elma C. Swails, after a jury trial. The action was brought by plaintiff for damages for the wrongful death of her son.

Defendant, as permitted by rule 4(b), Rules on Appeal, takes this appeal on a partial transcript of the oral proceedings below. However, there has been no compliance with the provision of that rule requiring the appellant in his notice to the clerk to state, 'the points to be raised by him on the appeal * * *.' ¹ Accordingly, if the rule were to be here followed, defendant would be precluded from presenting any grounds for reversal of the judgment below.

Defendant's failure to comply with rule 4(b) is compounded by repeated unsupported statements in its brief. We are given the substance of testimony of witnesses and of conferences in the trial judge's chambers which cannot be found in the record. The brief speaks of 'improper and objectionable offers of proof' which we cannot find. Although it states that certain evidence must be taken as uncontradicted because there was 'no evidence to the contrary,' we have no means of determining the correctness of this assertion. Plaintiff however, although pointing out the noncompliance with rule 4(b), has not moved to dismiss the appeal, nor does she ask that the rule's sanction be otherwise applied. We shall therefore determine defendant's appeal on its merits.

It appears that plaintiff's unmarried 33-year-old son, Mervin Ratley, was employed as a steel fabricator. His employer had a contract to move some metal partitions at one of defendant General Electric Company's warehouses. The work involved the cutting of metal by an acetylene torch. Ratley and one Cecil Hale were sent to the plant. They were accompanied by defendant's employee, Mr. Butler, who was in charge of relocating the partitions. Butler testified that it was normal procedure to have a fire extinguisher handy when using an acetylene torch. He said that defendant customarily furnished such extinguishers if a contractor working in its buildings did not have them. He also testified that in the plant's storeroom there had been two fire extinguishers. They looked like normal fire extinguishers; there was nothing unusual about them and they appeared operable.

When the three men arrived at the plant Ratley looked for a fire extinguisher and found one of the two that were in the storeroom. He returned with it to the two other men. Butler noticed that it had no hose, and asked Ratley if the other one did. Ratley went back to the storeroom and returned with the second extinguisher which also had no hose. He said, 'Let's try it' and then bent over and depressed something. There was a loud noise like a 'whish' and there 'was dry powder all over the place.' In the process, Ratley received fatal injuries.

The subject fire extinguisher was of a dry chemical type. It was designed only for use when the outlet was permanently connected with a piping system. They had originally been so installed by defendant in a ventilation duct which was a high fire hazard. Later they were removed and placed in the storeroom.

Defendant conceded at the oral argument before this court that there was substantial evidence in support of the jury's verdict.

Defendant contends that plaintiff's 'production of evidence concerning plaintiff's poverty' and need was error. From the portion of the record available to us we find little, if any, of such evidence--and none that was objected to at the time by defendant. Indeed, defendant first offered And then withdrew an instruction which among other things stated, 'Further, you are not to consider for any purpose the financial condition, earning power, poverty (or) affluence of the plaintiff.'

Another complaint of error is based upon the claimed refusal of the trial court to give two of defendant's proposed instructions. One of these instructions was the previously mentioned 'poverty' instruction and the other embraced a portion of section 3200, General Industry Safety Orders. Both of these instructions were withdrawn by defendant. The record indicates that out of the presence of the jury the trial judge discussed his proposed instructions with counsel. He had indicated, among other things, an intention not to give the two instructions, the nongiving of which is the subject of the instant contention. The following proceedings took place: 'THE COURT: Let the record show that we are presently in chambers and that we have gone over the proposed instructions and that counsel are in accord with the instructions which the Court proposes to give and that All instructions not given are deemed to have been withdrawn with the following exceptions: As regards the instructions excepted to it is understood that counsel have offered these particular instructions and they have been refused by the Court. * * * Mr. Allard, are there any exceptions? MR. ALLARD (Defendant's counsel): None, Your Honor.' (Italics added.)

In view of these proceedings it is clear that defendant has waived any right to complain about the refusal of the two instructions in question. A party who has agreed at the trial that an instruction proposed by him shall be deemed withdrawn cannot contend on appeal that the instruction should have been given. (Ferrel v. Safeway Steel Scaffolds, 57 Cal.2d 651, 652, 21 Cal.Rptr. 575, 371 P.2d 311; Sill Properties, Inc. v. CMAG, Inc., 219 Cal.App.2d 42, 52--53, 33 Cal.Rptr. 155; Cowin v. Lindsay, 175...