Wiese v. Rainville

• Decision Date: 31 August 1959
• Citation: 343 P.2d 643,173 Cal.App.2d 496
• Parties: Albert WIESE, Plaintiff and Appellant, v. Arthur RAINVILLE, individually, and doing business as 'The Rainville Co.,' Auto-Vac Company, a corporation, Woodrow Pearce and Jane Doe Pearce, husband and wife, doing business as Pearce Plastics Company, et al., Defendants, Arthur Rainville, individually, and doing business as 'The Rainville Co.,' and Woodrow Pearce, doing business as Pearce Plastics Company, Respondents. Civ. 23233.
• Court: California Court of Appeals Court of Appeals

Page 643

343 P.2d 643

173 Cal.App.2d 496

Albert WIESE, Plaintiff and Appellant, v. Arthur RAINVILLE, individually, and doing business as 'The Rainville Co.,' Auto-Vac Company, a corporation, Woodrow Pearce and Jane Doe Pearce, husband and wife, doing business as Pearce Plastics Company, et al., Defendants Arthur Rainville, individually, and doing business as 'The Rainville Co.,' and Woodrow Pearce, doing business as Pearce Plastics Company, Respondents.

Civ. 23233.

District Court of Appeal, Second District, Division 3, California.

Aug. 31, 1959.

Donald C. Kimber, Sandford R. Willford, Frank W. Woodhead, and Robert E. Morrow, Los Angeles, for appellant.

Harry E. Sackett, Raoul Francoeur, and Robert P. Dockeray, Los Angeles, for respondent Arthur Rainville.

Moss, Lyon & Dunn, Sidney V. Moss and Henry F. Walker, Los Angeles, for respondent Woodrow Pearce.

PARKER WOOD, Justice.

In this action for damages for personal injuries, plaintiff appeals from (1) judgment of nonsuit as to defendant Pearce, and (2) judgment, upon a verdict, in favor of defendant Rainville.

As to the judgment of nonsuit, appellant asserts that the evidence was sufficient to support a judgment against Pearce; and that the court erred in rulings as to the admissibility of evidence. As to the other judgment, he asserts error in giving and refusing to give certain instructions.

Defendant Rainville, who was doing business as the Rainville Company, was a sales agent for a plastics molding machine known as 'Auto-Vac.' Plaintiff was the chief engineer of the Modglin Company, which manufactured plastic articles. Defendant Woodrow Pearce, who was doing business as Pearce's Plastic Models, manufactured plastic articles.

Rainville desired to demonstrate the Auto-Vac machine to persons who were in the business of manufacturing plastic articles. He obtained the permission of Pearce to install one of those machines at Pearce's factory for the purpose of making the demonstration.

One of the machines, which was owned by the Auto-Vac Company (of Fairfield, Connecticut), was installed by Rainville at the Pearce factory about May 1, 1955. Soon thereafter Rainville sent a form letter to several persons, including plaintiff, inviting them to witness a demonstration of the machine at said place. Plaintiff attended that 'public' demonstration, where Rainville and Mr. Stratton, another representative of the Auto-Vac Company, operated the machine and made or formed plastic articles, such as toys. (There was no demonstration, at that time, as to whether the machine could wrap articles in cellophane.) A few days thereafter those representatives went to the office of the plaintiff and discussed the merits of the machine and exhibited samples of the work the machine could do. Plaintiff was interested in ascertaining whether the machine could wrap small articles (made by Modglin) in cellophane. Such wrapping is known as 'skin packaging.'

A few days thereafter, the plaintiff, another employee of Modglin and Rainville went to the Pearce factory, where Rainville operated the machine in attempting to wrap a small brush in cellophane. After two such attempts, plaintiff concluded that the wrapping was not satisfactory.

Later, Rainville went to plaintiff's office and exhibited another sample of the packaging which was done by the machine. The cellophane on the sample was wrinkled, and plaintiff said that the packaging was not satisfactory. Rainville said that he would try the machine again, and he suggested that plaintiff be present at the next attempt. They agreed to meet at the Pearce factory at 4 p. m. of that same day, June 28, 1955, to see if Rainville could do a better job of skin packaging with the machine.

When plaintiff arrived at the factory, at the appointed time, Rainville was there and the air and power of the machine 'were on' and the machine was ready to be operated. They discussed what they intended to accomplish with the machine--to produce a smoothly wrapped package. Then two attempts were made to package the small brush (which had been used in the prior attempts), but the results were not satisfactory. Then plaintiff asked Rainville if the 'drape frame method' (a method different from the method used in the prior attempts) could be used for wrapping the brush. Rainville replied that he did not know any reason the machine could not be used in that manner. Rainville, in proceeding to try that method, raised the clamping frame about a foot above the molding base of the machine. The plaintiff put his hand under the clamping frame in order to hold a thin sheet of plastic in position while Rainville proceeded to activate an automatic part of the machine by pressing a button. Rainville pressed the wrong button, and the clamping frame went down on plaintiff's hand, causing severe injuries.

The briefs do not state the dimensions of the machine and do not describe it or its operation except in general terms. The jury went to the Pearce factory, observed the machine, heard an expert witness explain the operation of it, and heard plaintiff and Rainville testify (there) as to the manner it was operated at the time the injury occurred. Photographs of the machine, and also a brochure regarding the machine, were received in evidence.

A description of the machine and its operation (as indicated by the photographs, brochure, and testimony) is as follows: It is a box-like metal structure, about 5 feet wide, 8 feet long (front to back), and 6 feet high. The structure has no wall at the upper half of the front; and it has no covering at the front half of the top. In other words, the front upper one-fourth of the structure is not enclosed. At the bottom of that open part (at a place about helf way between the top and bottom of the structure) there is a floor or molding base, about 2 feet wide (front to back) and 3 feet long, where the model of the article (to be made) is placed. Also in that open part or the structure, and above the molding base, there are intricate mechanisms which are referred to as the clamping frame and the heating bars. The clamping frame consists of two frames (a top frame and a bottom frame). Each frame, about 3 feet wide (front to back) and 4 feet long, appears to be made of 2-inch by 4-inch wood. The bottom frame remains in a horizontal position, and the mechanism in connection with the top frame is such that the top frame can be lowered against the bottom frame and thereby clamp a sheet of plastic between the two frames. There are adjustable cross bars on the frames so that various sizes of plastic sheets can be clamped between the frames. The whole clamping frame (two frames) can be raised, from the molding base, so that plastic can be inserted and clamped between the two frames; and the whole clamping frame can be lowered, from the elevated position, so that the plastic (which has been clamped in it) can be draped over the mold or article on the molding base. Also in that open space of the structure, and above the clamping frame, there is a device which contains hearing bars for the purpose of heating the plastic sheet after it is in the clamping frame and before the clamping frame is lowered to drape the plastic over the mold. Under the molding base there is a vacuum apparatus which operates, after the heated plastic is on the mold, for the purpose of drawing the plastic smoothly and tightly against the mold. The machine is operated by electricity. Outside and attached to the front of the structure, there is a control panel on which there are 19 control buttons or switches. Each button or switch is labeled as to its function, such as 'Clamp Start,' 'Down,' 'Up,' 'Close,' etc. The top of the control panel is about a foot below the level of the molding base.

The attempts to skin package articles prior to the accident (and prior to the time plaintiff asked if a different method could be used) were made by the 'vacuum method.' Under that method the clamping frame is not raised from the molding base, but it remains flat on the base in the 'vacuum drawing position,' and the plastic or cellophane material is laid on the article and is heated, and then the vacuum apparatus is operated for the purpose of drawing the plastic around the article. As above stated, the method used at the time of the accident was the 'drape frame method.' Under that method the machine is operated as follows: the clamping frame is raised about a foot above the molding base; the two frames (which comprise the clamping frame) are opened or separated by raising the top frame; a sheet of plastic is placed on the bottom frame; the top frame is closed or clamped against the plastic and the bottom frame; the plastic is heated by the heating device; then the whole clamping frame is lowered so that the heated plastic is draped over the article on the base; and then the vacuum apparatus is operated to finish the packaging process.

With respect to the occurrences at the time of the accident, plaintiff testified that on June 28, after two unsatisfactory attempts on that day to package the brush, he asked Rainville if the drape frame method could be used; Rainville replied that he did not know any reason the machine could not be used in that manner; then Rainville raised the clamping frame, and a thin sheet of plastic (cellophane) was placed between the top and bottom frames; the thin plastic, not having sufficient support under it, fell through the bottom frame; plaintiff looked for a rigid object which could be used to support the plastic (while the top frame was being lower to clamp the plastic against the bottom frame); the only objects available were two strips of heavier plastic, but those were not satisfactory to eliminate all the wrinkles in the thin plastic; then Rainville suggested that plaintiff hold those plastic strips under the bottom frame, and he (Rainville) would close the top frame and proceed with the packaging (by lowering the whole clamping...