Lippert v. Pacific Sugar Corp.

This is an action for damages brought by the surviving wife and minor child of William Leo Lip-pert, who, on the fifteenth day of July, 1909, was killed by the bursting of a “pre-heater,” used by defendant for the purpose of heating sugar-beet juices. At the time of the accident Lippert was twenty-eight and one-half years of age and the minor was eighteen months old. The jury found for plaintiffs in the sum of twenty thousand dollars and judgment was entered in their favor for that amount. The appeal is by defendant from the judgment and from an order denying its motion for a new trial.

Appellant makes the following points: 1. That deceased was employed as master mechanic and was intrusted with the oversight of all the machinery of the sugar-house; 2. He therefore assumed the risks of his employment; 3. Contributory negligence on the part of deceased; 4. “He fully knew and appreciated and apprehended all of the dangers surrounding his employment”; 5. That if the pre-heater was out of repair it was patent to deceased and it was his duty to have remedied its condition; 6. If that was the condition of the apparatus, he should have complained of it to defendant ; 7. When deceased was employed as mechanic and assistant superintendent he expressly assumed the duty of putting all machinery into thorough running condition.

Respondents, in their brief, say: ‘ ‘ The long and able opening brief of appellant . •. . deals with adjudicated cases and legal principles applicable to litigation involving such propositions as ‘Equal means of knowledge,’ ‘Comparative knowledge of masters and servants, ’ ‘ Continuance of employment, ’ ‘Duties of servants to inform masters of defects and danger,’ ‘Precaution against a known or apparent danger,’ or ‘Duty of employer to repair.’ The evidence in this case does not require consideration of any of those questions.”

Respondents assign, as defendant’s negligence: (a) Defendant’s informing decedent that the pre-heater would safely carry a steam pressure of seventy pounds when, in fact, it was only built for a maximum pressure of forty pounds; (b) Defendant’s failure to use ordinary care in the selection of the culpable employee, John Wegman.

In December, 1908, deceased, who was then employed in a sugar factory at Chino, San Bernardino County, wrote to

“Mr. R. L. McCrea.

“Dear Sir: Recently learned that your company intends to start your plant at Corcoran. If the same is correct and you have not already selected a man to operate same, would like you to consider an application from me. If your company cares to consider with me the matter, kindly notify me as soon as possible. Will be in city in the latter part of the week; so would call at your office if you desired.

“Tours truly,

“Wm. L. Lippert.”

(Written in blue pencil.) “R/R Mr. Cole. Mr. P. has written Mr. Lockwood—& so good team.”

A meeting was thereupon arranged, which took place in the defendant’s office in Los Angeles, on the twenty-sixth day of March, 1909. As to what then occurred, Mr. W. C. Petehner, the secretary of defendant, testified: “At that meeting, at which Mr. Lippert, myself and Mr. Cole (vice-president and general manager of defendant) were present, I referred to Mr. Lippert’s application and told him we wanted somebody to take mechanical charge of the house; that Mr. Connolly (defendant’s superintendent) had told us he would not care to undertake the mechanical charge of the house, and Mr. Connolly had stated Mr. Lippert was the one whom we should get, because he had been employed at the house in its construction, and in the installation of the machinery, and was supposed to understand all about it, and he would prefer to have such a man. I told this to Mr. Lippert and asked Mm what he knew about the house, and also asked him about his previous employment; I told him what duties we should expect from him; that he was to be there as the engineer to take charge of the mechanical part of the house, because Mr. Connolly was a superintendent merely, and not a machinist or engineer. I repeated all this explanation to Mr. Lippert, and asked him if he felt competent to take charge of the machinery of the house. He said he did; that that was his business; that he had been employed in the house the year previously and that he had made out the plan of the house wiring and the placing of the machinery, and had taken part in the installing of the machinery in the house. ... I took up my active duties at Corcoran in the month of January, 1909, and was

Mrs. Annie L. Lippert testified: “I reside in San Francisco. I was married to William Leo Lippert in Oakland in 1906. At that time he was employed by the American Beet Sugar Co. as master mechanic at Chino, California. He stayed at Chino several months and came back to San Francisco where we remained for a year and a half. Then Mr. Lippert went to work to Corcoran in the year 1908, where he remained about six months. Then he was sent for to go to work at Chino. When they employed him in the sugar factory at Corcoran, they asked him to take the house as master mechanic. He had previously worked at Corcoran helping to install some of the machinery. ’ ’

There was received in evidence a contract, dated November 14, 1907, between defendant and the American Foundry & Machinery Company, under which the latter was to furnish the former with an “evaporating system,” and containing specifications as to the construction thereof. Said contract provided: “Pre-heater to be of steel and to stand a working pressure of 12 pounds; steam chest to stand a working pressure of 40 pounds. ’ ’

M. B. Kearney, a witness for plaintiffs, testified that he had worked as a steam-fitter in sugar factories in different states and that he was employed as such at the Corcoran plant, although eight or ten years had elapsed since he had last worked in a sugar factory; that he commenced work there about the 1st of April; that he overhauled all the steam-pipe that needed working on and put in some new pipe. Referring to the pre-heater, witness said: “It is a large cylinder shaped piece of machinery between eight and ten feet in

Washington A. Connolly was called as a witness by plaintiffs and testified: “I was employed by defendant at Corcoran as superintendent or sugar expert for sugar manufacturing, from the 15th of March, 1909, until about the 21st of December, 1909. My duties were' to take charge of manufacturing and producing sugar from beets and take charge of chemical control of the house; that is, I would be superintendent over the chemists attending to the chemical part of the house—I was superintendent over all the employees of the Pacific Sugar Corporation outside of its office affairs. . . . Mr. Lippert was employed right along, I think, from in April or the first of May. He was hired as master mechanic by Mr. Petchner. I was told so by himself. His duties were to take full charge of all the machinery and at the time he was hired, which was not in the manufacturing season, he was to repair and overhaul everything prior to the manufacturing campaign, which was supposed to start then about the first of July. . . . Mr. Lippert was next in authority to me.” Witness described the apparatus and said: “I don’t know what pressure this preheater, or the heads of this pre-heater, were supposed to be able to withstand, or were constructed to withstand. Q. Did you ever instruct Mr. Lippert as to what pressure they were able to withstand? A. There were no instructions given, except Mr. Lippert and I got together. Q. If you will answer

The deposition of John Wegman, taken on behalf of plaintiffs, was read in evidence. He deposed as follows: “I will be eighteen years of age the ninth day of August, 1911. I reside in Visalia and am now working in an automobile shop. I was working in the sugar factory at Visalia and Mr. Sieland, the superintendent, sent me down to Corcoran. There

M. B. Kearney was recalled and gave further details of what occurred at the time of the accident, and James Mack Hale was also sworn as a witness for plaintiffs and testified to facts similar to those given by other witnesses.

R S. Bulla, connected with beet-sugar factories since 1890, part of the time as superintendent, testified on behalf of defendant. He described the operation of evaporators and pre-heaters, although he said the pre-heater at the Corcoran plant was the only one he had ever seen. He said: “A boy of sixteen years is perfectly able to watch the system of four evaporators and one pre-heater and to observe the steam and 'juice level in each one. . . . The master mechanic is master of the mechanical department. It is his duty to regulate the steam pressure on the evaporators. By regulating the evaporators, I Mean the setting of the relief valves and giving the evaporator-man in charge those instructions of how far and how high the steam pressure might rise, and in regulating the reducing valves and allowing no more steam in than he considers, in his opinion as an engineer, is safe for machine. ’ ’

G. D. Kiefer, a witness for defendant, testified: “I reside at Corcoran, where I have lived for almost five years. My trade is that of a machinist. I went to work for the Corcoran sugar factory on the 4th of March, 1908. . . . Mr. Lippert was master mechanic there, in which capacity I have had conferences with him. ... At the time of the explosion I was probably fifteen or twenty feet from the pre-heater—within a few minutes before the explosion. I could see the preheater from where I was. Just before the explosion Mr. Lip-pert and I sat on the water line. We talked about the pre-' heater. I wanted him at that time to cut it off; I told him that it was a detriment and no use to the factory. He said that the machinery was put there to run, and he was going to run it; we came back in around the pre-heater and steam was coming out through the bolt holes on the south end of it. Mr. Lippert called Mr. Connolly; Mr. Connolly had been talk

Upon the close of plaintiffs’ case, defendant moved for a nonsuit on the grounds: 1. That no negligence on the part of defendant has been shown; 2. Deceased was guilty of contributory negligence; 3. Deceased assumed the risk of the employment. The court denied the motion for nonsuit.

In Shearman and Redfield on Negligence, section 60, the following rule is declared: “Where a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” In Rose v. Stephens etc. Co., 11 Fed. 438 , it is said: “In the present case the boiler which exploded was in the control of the employees of the defendant. As boilers do not usually explode when 'they are in a safe condition, and are properly managed, the inference that this boiler was not in a safe condition or was not properly managed, was justifiable.” It was further said that, while the rule is more frequently applied in cases against carriers of passengers than in any other class, there is no foundation .for limiting the rule to carriers. “The presumption,” said the court, “origi

The cases are industriously cited and considered in Judson v. Giant Powder Co., 107 Cal. 549 , [ 48 Am. St. Rep. 146 , 29 L. R. A. 718 , 40 Pac. 1020 ]. Referring to the ease of Young v. Bransford, 12 Lea (Tenn.), 232, which supports a contrary doctrine, attention is called to the following language in the reported opinion of that case: “At the same time the fact that there was an explosion, which is not an ordinary incident of the use of a steam boiler, ought to have some weight, inasmuch as it may be out of the power of the aggrieved party in some instances to prove any more. The reasonable rule would seem to be that laid down by Judge Wallace: ‘That from the mere fact of an explosion it is competent for the jury to infer, as a proposition of fact, that there was some negligence in the management of the boiler, or some defect in its condition. ’ ” We are satisfied that this is a case where the doctrine of res ipsa loquitur is applicable, and plaintiffs are not precluded from relying upon it because they charged specific omissions of duties or acts of negligence. This latter proposition is well supported in Cassady v. Old Colony Street Ry. Co., 184 Mass. 156 , [ 63 L. R. A. 285 , 68 N. E. 10 ], where it was said: “The defendant also contends that even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine (res ipsa loquitur), because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, as in Winship v. New York, N. H. & H. R. Co., 170 Mass. 464 , [ 49 N. E. 647 ], and similar eases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.”

Deceased was shown to have been competent “to be there as the engineer, to take charge of the mechanical part of the house,” for, which purpose he was employed, as a witness testified. He had a general knowledge of the plant and the machinery there in use, for he helped to install some of it. It was not, however, a part of his duty personally to operate the different machines of the plant or any one of them. Other persons were in personal charge of their operation. The evaporators, including the pre-heater, the explosion of which caused the death of Lippert, were, by Superintendent Connolly, placed in charge of the boy, Wegman, less than sixteen years old. Wegman was told by Connolly to report to Williams, the beet foreman, for instructions how to run the pre-heater, and Wegman testified that no instructions were given him by deceased and that all he had were given by Williams to whom Superintendent Connolly sent him. He testified: “Williams, he came around and gave me orders and showed me all the valves. Mr. Williams told me how to start them up and told me about the different valves and told me how much steam to carry on the evaporators.” Wegman could not remember what his instructions were as to the pressure he was to carry in the pre-heater. This was quite an important fact for Wegman to know, and as he had no knowledge except as he got it from Williams, and as Connolly sent him to Williams, it is fair to presume that Williams had the information given in the superintendent’s written instruction that “the pre-heater is supposed to carry the full seventy pounds on steam end,” and so instructed Wegman. Connolly testified that there were six copies made of these instructions, and they show on their face that they were intended for the information of the foreman of the different departments of the plant. Wegman testified that he “had never seen nor operated a pre-heater before.” Witness Bulla testified that “a boy of sixteen years is perfectly able to watch the system of four evaporators and one pre-heater and to observe the steam and juice level to each one.” The jury were informed in great detail by witnesses as to the component parts of the plant, and their several offices and illustrative diagrams were used to aid in the explanation. We think,

Connolly’s connection with the accident and the responsibility resting upon him in a greater or less degree for the unfortunate accident justifies classing him as a hostile witness, although circumstances compelled plaintiffs to call him as a witness to establish certain facts.

Recurring to the grounds for a reversal of the judgment, as stated by defendant in its brief, it may be conceded as proven that deceased “was intrusted with the oversight of all the machinery of the sugar-house,” but it does not follow that “he assumed all the risks attending his employment.” There was no evidence that the pre-heater was out of repair, or that there was any imperfection in it calling for repair or complaint to defendant, or that it was not in thorough running condition. In fact, it was not an indispensable part of the plant, for Connolly testified that defendant dispensed with it altogether after the accident. No reasonable cause for the explosion can be assigned, based upon any evidence, other than it was caused by an excessive pressure of steam to which the pre-heater was subjected by the employee of defendant, whose duty, under the authority of defendant, it was to operate this machine. There was evidence that this employee was performing this duty under the immediate instructions of Williams, and not under the direction of Lip-pert at the time the explosion occurred. If Williams was governed by or had in mind the written instructions, which we think must be presumed, he may not have been at fault, but surely defendant was in giving them, and the responsibility thus passed to defendant for the accident.

In its opening brief the specifications of errors called to our attention are, in substance, that the court erred in not granting defendant’s motion for nonsuit on the ground of the insufficiency of the evidence and the refusal of the court to instruct the jury to return a verdict for defendant. Also on the ground that the court permitted plaintiffs to- amend their complaint at the conclusion of the evidence for plaintiffs by charging defendant with culpability in the selection of an incapable employee, to wit, John Wegman. There is also a general specification of the insufficiency of the evidence in certain particulars. We do not think the court would have been justified in granting the motion for a nonsuit nor in directing a verdict for defendant. There was sufficient evidence to sustain the verdict and judgment. In allowing plaintiffs to amend their complaint, the court was exercising a discretion confided to it, the abuse of which alone could justify reversal. The ruling of the court did not carry with it an implication that Wegman was in fact incompetent to perform the duties assigned to him. The implication was that there was sufficient support in the evidence on the point to go to the jury for determination.

The judgment and order are affirmed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 10, 1917.