Zar v. Alafetich

• Court: California Court of Appeals
• Writing for the Court: MOSK; WHITE, P. J., and DRAPEAU
• Citation: Zar v. Alafetich, 126 Cal.App.2d 643, 272 P.2d 922 (Cal. App. 1954)
• Decision Date: 22 July 1954
• Parties: ZAR v. ALAFETICH et al. Civ. 20070.

Page 922

272 P.2d 922

126 Cal.App.2d 643

ZAR v. ALAFETICH et al.

Civ. 20070.

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

July 22, 1954.

Rehearing Denied Aug. 16, 1954.

Margolis, McTernan & Branton, by John W. Porter, Los Angeles, for appellant.

Lasher B. Gallagher, Los Angeles, for respondent.

MOSK, Justice pro tem.

Appellant sought to recover damages for personal injuries sustained during the course of his employment as a member of the crew of the Sea Rose, a commercial fishing vessel owned and operated by the respondents. His action was brought in state court pursuant to provisions of the Jones Act, 46 U.S.C.A. § 688. Upon completion of appellant's presentation, the trial court granted respondents' motion for a nonsuit. Our only question on appeal is whether the court erred in taking the matter from the jury.

The cases indicate that nonsuits should be granted sparingly. A motion for nonsuit properly may be granted when and only when, disregarding evidence that conflicts with that of plaintiff, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. Palmquist v. Mercer, 43 Cal.2d 92, 272 P.2d 26; Turner v. Ralph M. Parsons Co., 117 Cal.App.2d 109, 254 P.2d 970; Card v. Boms, 210 Cal. 200, 202, 291 P. 190; Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1.

While in Jones Act cases filed in state courts, procedural matters are governed by state laws and matters of substance by federal law, an examination of the cases indicates that the federal law on nonsuits is generally the same as that prevailing in California. McGuigan v. Southern Pac. Co., 112 Cal.App.2d 704, 714, 247 P.2d 415.

It has been said that the Jones Act is to be liberally construed to carry out its full purpose, which is to enlarge admiralty's protection to its wards. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, 245. For a discussion of the pronounced trend in this direction see 36 Cal.L.Rev. 183-196. Thus in cases of seamen, as in those of railroadmen under the Federal Employees' Liability Act, 45 U.S.C.A. § 51 et seq., if there is any substantial evidence or reasonable inference therefrom that would sustain findings of negligence and proximate cause, a nonsuit should not be granted.

Whatever, in the absence of the Jones Act, might have been the effect upon respondents' liability of the fact that appellant and the coworker whose role is hereinafter discussed were both in their employ, that Act prevents this fact from conferring an immunity upon the respondents in a negligence suit. De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065, 1071. Negligent use of an appliance by a fellow seaman will be deemed the negligence of the employer. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. To the same effect is Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082. See discussion in 46 U.S.C.A., preceding § 688. Consideration of the law for the rigid discipline to which seamen are subjected has resulted in recovery where a seaman deliberately selected a hazardous method of working although aware of a safer alternative. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. See note in 52 Harv.L.Rev. 1008. There is no question of the applicability to the instant case of the Jones Act even though the accident happened shoreside. D'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596.

The role of the appellate court on appeals from an order granting a nonsuit is circumscribed, as indicated in this quotation from Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575: '* * * while in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court, substantially the reverse is true when the appeal is from an order of nonsuit. In the latter case the appellant court must view the evidence as though judgment had gone in favor of the appellant, and order a reversal if such a judgment can be sustained.' Or as stated in Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665, 666, "The uniform rule which an appellate court should follow in disposing of an appeal from a judgment of nonsuit is, that the court must view the evidence in the light most favorable to appellant, must disregard all inconsistencies and draw only those inferences from the evidence which can reasonably be drawn which are favorable to appellant'.'

Bearing in mind the foregoing accepted rules of law, we shall review the facts in the instant case.

The appellant, Nick Zar, 35 years old, had been a fisherman all of his adult life, the past three years on the Sea Rose. He had fished on all types of vessels and had served in every capacity except that of engineer and cook. He was the son-in-law of the respondent Luka Alafetich, co-owner of the boat with Jesse Skomerza. On February 1, 1950, the Sea Rose was on dry dock at Terminal Island for repairing, painting and general overhaul. She had been sardine fishing previously and was preparing for the approaching tuna season. A part of the dry dock consisted of a narrow catwalk running broadside of the vessel at a height of some 14 feet above the adjoining pier. The catwalk was supported by steady upright beams.

Zar arrived at the boat between 8 and 8:30 in the morning. None of the crew were present except Skomerza, who acted as chief engineer, and seaman Nick Kuljis. The skipper was attending a funeral that morning, and he had left no specific work instructions. The crew worked the boat on a share basis, so there 'is no set job, what you do on a boat. I mean you got a certain job, then if another man is needed, you help him and you--you are in different positions. When a guy needs help you help him, that is all'. Share basis on the Sea Rose meant a percentage of the net profit from the sale of the catch to the boat's owners, and the balance divided among the 12 crew members. Zar went aboard the boat and noticed Juljis cutting a tire carcass in order to make a fender for the protection of the boat or skiff. Kuljis was having difficulty in cutting, the tire 'jumping off a little block he had it set on, a little block, about a two or four inch block, and every time he would cut it, it would fall off and he wouldn't get a good chance to do the job right.'

Observing the plight of Kuljis, and having had experience in slicing tire carcasses, Zar suggested the tire be placed on a solid object, and pursuant to that suggestion, it was brought to one of the 6 X 6 timber uprights supporting the catwalk or scaffolding, and was draped over the top of that steady beam. The evidence is not clear whether Zar alone carried the tire or whether Kuljis took it part of the short distance to their destination, but Zar placed it over the timber. It is unquestioned that no one in authority commanded, requested or approved of this activity.

Crouching, Zar held the tire in position with one hand and grasped the timber with the other. The tire was pulled taut over the top of the upright. He told Kuljis he would hold it and Juljis should 'chop it'. No further words passed between the two men. He did not see Juljis swing the axe, but saw it at the instant it struck the tire. Toppling backward and sideways, he fell to the dock below and sustained severe personal injuries.

From the foregoing facts appellant maintains that although the axe did not strike him, the blow coming without warning jarred him from his position. Respondents contend the appellant was pulling on the tire according to his own plan of procedure, that when it was cut his body was propelled pursuant to the laws of physics in the direction in which he had been pulling.

Appellant first urges that res ipsa loquitur is invoked here and that this alone required the case to go to the jury. The doctrine of res ipsa loquitur has three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of some one's negligence; (2) it...