Tesone v. Reiman

• Decision Date: 06 April 1953
• Court: California Court of Appeals Court of Appeals
• Parties: TESONE v. REIMAN et al. Civ. 8207.

Page 48

255 P.2d 48

117 Cal.App.2d 211

TESONE v. REIMAN et al.

Civ. 8207.

District Court of Appeal, Third District, California.

April 6, 1953.

Hansen & Barstow, Chester O. Hansen, Fresno, for appellants.

C. Ray Robinson, Merced, for respondent.

VAN DYKE, Presiding Justice.

Plaintiff and respondent was at the time of the accident which resulted in her injuries a girl child of the age of two years and two months. She was injured while on the premises of her grandparents, Milton and Elma Reiman. Alleging her injuries were caused by the negligence of defendant and appellant Laura S. Bennett, an employee of the Reimans, she brought action against the three and recovered a judgment in the sum of $45,000, from which said defendants have all appealed. Basically, the testimony is without conflict. At about 9 o'clock in the morning of December 28, 1950, appellant Bennett was engaged in doing the family ironing for her employers, using for that purpose an ironer or mangle situated in a room called the service room. While she was so engaged, and at about noon, respondent with her mother came to the Reiman residence. Mrs. Bennett saw the child and her mother enter the home and knew therefore that the child was on the premises. There was present in the residence at that time Elma Reiman and two daughters other than the mother of Karen. The four women began talking and the child was running about the house. A few minutes after the child and her mother arrived Mrs. Bennett left the mangle to take some towels into the kitchen. She there saw the other women and a short conversation ensued. She said she had intended to be gone about a minute. While talking she heard a scream and all went into the service room where it was found that Karen had her hands caught between the roller and the shoe of the mangle. Before they could extricate the child she had been severely burned. When Mrs. Bennett left the mangle the electric cord was plugged into the socket; the hood that could be put over the machine was off; the chair in which she had been sitting was close to the mangle; the mangle had been deactivated through either the manual or the knee control so that the roller was not turning and the shoe was not down on the roller. When found the child was either standing or kneeling on the chair in front of the machine. She was not tall enough to touch the hot shoe or the upper part of the roller without the aid of the chair. The mangle had been reactivated. After the accident and in conversation with Mrs. Reiman, Mrs. Bennett stated that she felt it was her fault because she did not pull the plug. Karen was not in the service room when Mrs. Bennett left and must have entered within the short space of time after Mrs. Bennett left the room and before the scream was heard, a time interval of about one minute.

In support of their appeal the appellants urge that the judgment should be reversed for misdirection of the jury to their prejudice, that the court wrongfully refused instructions based upon the appellants' theory of the case, and that by reason of the instruction given at respondent's request concerning unavoidable accident the trial court in effect removed the issue of negligence from the jury.

The first two assignments have to do with the status of respondent while upon the property of appellants Reiman. We think that under the admitted facts of the case the question of the respondent's status is of no import. At respondent's request the trial court instructed the jury: 'It is established in this case that at the time of the accident the plaintiff, Karen Tesone, was present at the home of the defendants, Mr. and Mrs. Reiman, and on their service porch, by virtue of the invitation, permission, consent and approval, and with the knowledge, of the defendants, Mrs. Bennett and Mr. and Mrs. Reiman. Therefore, it was the duty of the defendant, Mrs. Bennett, to use reasonable care to operate, control, maintain and supervise the ironer or mangle in such a manner as to avoid injuring or endangering the safety of the plaintiff, Karen Tesone.' Appellants complain that this instruction removed from the jury the question as to what was the status of respondent and fixed the duty of care toward her as the duty owed to an invitee. The exact status is unimportant here for the reason that the negligence, if any, was in the conduct of active operations on the Reiman property with the presence of the respondent known. Under such circumstances it was the duty of the appellants to use ordinary care to avoid injury to respondent through such operations. We quote the following from Oettinger v. Stewart, 24 Cal.2d 133, 138-139, 148 P.2d 19, 22, 156 A.L.R. 1221:

'* * * [I]t is now generally held that in cases involving injury resulting from active conduct, as distinguished from condition of the premises, the landowner or possessor may be liable for failure to exercise ordinary care toward a licensee whose presence on the land is known or should reasonably be known to the owner or possessor. Rest., Torts, § 341; Prosser on Torts (1941), 630; 45 C.J. 803-805. In Prosser on Torts, supra, the author explains: 'Some courts have gone so far as to say that there is no duty to a licensee other than to refrain from...