Wiese v. Rainville

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 Rain-ville 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.

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. Rain-ville 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

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 maimer 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 half 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 of 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). Bach 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

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 Bainville if the drape frame method could be used; Bainville replied that he did not know any reason the machine could not be used in that manner; then Bainville 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

Mr. Rainville testified that on June 28, when they were about to make the third attempt on that day, the clamping frame was down on the molding base, as “it has to be in order to do skin packaging’’; plaintiff had laid the brush on the mold, and either plaintiff or Rainville had placed the plastic on the brush (which was to be packaged); then Rain-ville pushed the two outside buttons on the control panel and closed the top frame of the clamping (drape) frame; at that time plaintiff asked if the drape frame could be raised without opening the top frame; Rainville replied in the negative, and he said further that every time the drape frame comes up, the top frame opens; plaintiff said, “Do it my way’’; Rain-ville raised the clamping (drape)frame, and the top frame opened and the plastic (which had been clamped in the frame) fell through the lower frame; Rainville said, “There is the proof of it, A1 [referring to plaintiff]. It is not supposed to be done that way. It isn’t set up. The machine isn’t even made for that’’; plaintiff picked up two strips of plastic and said that if he held those strips under the clamping frame so that the other plastic would not fall through the lower frame, then they might be able to close the top frame and hold the plastic in the clamp; Rainville replied that that was wrong and that the drape frame process was not used in skin

Defendant Pearce, the owner of the factory known as Pearce’s Plastic Models, testified (under Code Civ. Proc., § 2055) that he manufactured aircraft windows, and that he also did laboratory work; he had about 15 employees; about February, 1955, Rainville told him that an Auto-Vac machine would be sent to Rainville for demonstration purposes; they had a discussion relative to placing the machine in Pearce’s factory; Pearce agreed to allow Rainville to place the machine there under conditions which they discussed; the substance of their discussion was that the machine would be there at no charge or commission or anything like that, and Pearce would get no profit from it, Rain-ville would “hook it up,” would carry his own insurance, that Pearce should have the first option to buy the machine, and that his employees might use it. He testified further that he was present when the machine was placed in his factory about May 1; Rainville handled the transportation of the machine; the first demonstration of the machine was on the day it was installed; Pearce received a letter from Rain-ville (copy of Exhibit G) relating to a public demonstration of the machine to be held at Pearce’s factory; he (Pearce) did not know whether the “safeguard” was on the machine on the day of the accident; he did hot remove the safeguard; he did not know when his employees first removed the safeguard; he did not own any interest in the Rainville Company or the Auto-Vac Company.

At the close of plaintiff’s ease, the motion of defendant

Appellant contends that he was an invitee of Pearce, and that Pearce owed him the duty of keeping the “guard” on the machine when appellant was present, or owed the duty of warning him of the dangerous condition of the machine when the guard was not on it. Appellant’s argument, in support of such contention, is to the effect that Pearce consented to the placing of the machine on his premises, he was present when the first public demonstration was made, he permitted his employees to use the machine, and he had the first option to buy it. The complaint alleged that appellant (plaintiff) was a business invitee of Pearce; that Pearce maintained the machine on his premises; that the machine was in a defective and dangerous condition; and that such condition was known to Pearce. The evidence was not legally sufficient to prove that appellant, at the time of the accident, was on the premises for a purpose which was for the mutual benefit of himself and Pearce. Rainville and appellant had gone to the premises on the day of the accident for the purpose of testing the usability of the machine for wrapping, to the satisfaction of appellant, a small brush which had been manufactured by appellant’s employer (the Modglin Company). Pearce was not present while they were operating the machine on that day. There was no evidence that such wrapping of that article would be of any benefit to Pearce. Rainville and appellant were there on that day for purposes which did not pertain to Pearce’s business. It is true that Pearce gave Rainville permission to place the machine on the premises, and that, at the time of the accident, Rainville and appellant were on' the premises with the permission of Pearce. In Fisher v. General Petroleum Corp., 123 Cal.App.2d 770 [ 267 P.2d 841 ], it was said, at page 778: “An invitation to use the premises of another is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using the premises. Mere permission of an owner or allowing a person to enter and use a certain portion of the premises is indicative of a license merely and not of an invitation.” In Aguilar v. Riverdale C.

The court did not err in granting Pearce’s motion for a nonsuit.

Appellant contends further that the court erred in sustaining Pearce’s objections to three questions (asked appellant) which, according to appellant’s opinion, were material on the issue as to whether appellant was an invitee of Pearce. The first question was: “Does Pearce Plasties or did Pearce Plastics, at the time of this accident, produce items that your company would be likely to purchase ? ’ ’ The second question was: “ [I]s your company in any business, or were they in any business relationship to the Pearce Plastics Company in relation to purchase or vendee or vendor relationship?’’ Those were compound questions, relating to hoth present and past time. The part of each question relating to present time (i.e., the time of trial—.about two years after the accident) was immaterial. In Board of Trustees v. Schuyten, 161 Cal.App.2d 50 [ 326 P.2d 223 ], it was said at page 54: “The vice of the compound or duplicitous question is

Appellant also asserts that the court erred in sustaining Pearce’s objection to a certain question which appellant asked Pearce on cross-examination (under Code Civ. Proc., § 2055). The question was: “Are you and were you, on that date [date of accident], familiar with the mechanisms of the machine?” That also was a compound question. It was immaterial whether Pearce, at the time of trial, was familiar with the mechanism. The court did not err in sustaining the objection.

Appellant also contends that the court erred in sustaining Pearce’s objection to the following question, which appellant asked Pearce: “When did you first know that it [the ‘guard’ part of the machine] was removed, Mr. Pearce?” The objection was upon the ground that the question was irrelevant. Thereupon the judge said, “I assume you mean

Appellant also contends that the court erred in instructing the jury 'on the doctrine of assumption of risk. Defendant Rainville did not plead assumption of risk but did plead contributory negligence. Defendant Pearce pleaded assumption of risk and contributory negligence. Pearce submitted five instructions on assumption of risk. Rainville did not request any instruction on assumption of risk. Pearce, of course, was not a participant in the trial after his motion for a nonsuit was granted. The court, however, gave the five instructions on assumption of risk, which had been requested by Pearce.

This court wrote an opinion in this case (Cal.App.) 337 P.2d 561 , reversing the judgment on the ground that the court erred in instructing the jury on the doctrine of assumption of risk. A rehearing was granted because the pretrial conference order of the pretrial judge stated that assumption of risk was an issue in the ease. On the previous hearing on appeal, the pretrial order was not in the record on appeal, and the briefs did not refer to the pretrial order. It is not clear whether the pretrial judge inadvertently stated in the pretrial order that assumption of risk was an issue in the ease. It does not appear, however, that any objection was made to the order. As correctly stated in the former opinion, the defendant Rainville did not plead assumption of risk. In connection with the petition for rehearing, the attorneys stipulated that a certified copy of the pretrial order might be filed herein. The copy has been so filed. The pretrial order was before the trial judge and it is to be assumed that he considered the order in determining the instructions to be given. The pretrial conference order superseded the

The five instructions on assumption of risk, which were given, were in substance as follows:

1. A person assumes a risk when he voluntarily exposes himself to danger, or when he knows that a danger exists in the operation of property and he voluntarily remains within the area of danger. A person who thus assumes a risk is not entitled to recover for damage caused him without intention, and which damage resulted from the dangerous condition to which he exposed himself.

2. Distinction should be noted between assumption of risk which bars recovery and the ordinary acceptance of common risks that lie in the possibility that others will not perform their duties. As to this latter kind, a person will not be barred from recovery for damage by the fact that, while he is exercising ordinary care, he assumes that others will perform their duties.

3. To bar recovery, assumption of risk must be voluntary. To be voluntary, the person must have knowledge of the danger and must have freedom of choice. This freedom of choice must come from circumstances that provide him a reasonable opportunity to refuse to expose himself to the danger.

4. Attention is called to a distinction between contributory negligence and assumption of risk. Contributory negligence must be a proximate cause of the injury, but assumption of risk will bar recovery of damage although it plays no part in causing the accident except merely to expose the person to danger.

5. In determining whether a person had knowledge of a dangerous situation and whether, with such knowledge, he assumed a risk so as to bar recovery of damages, you may consider his age, experience, capacity, and all the surrounding circumstances as shown by the evidence. The court did not err in giving those instructions.

Appellant also contends that the court erred in refusing to give an instruction requested by him, which instruction commenced as follows: “California Administrative Code, Division of Industrial Safety, Title 8, reads as follows: Division of Industrial Safety General Industry Safety

In Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846 [ 313 P.2d 854 ], it was held that safety regulations are intended to afford protection to the general public in places of employment. In Lehmann v. Los Angeles City Board of Education, 154 Cal.App.2d 256 [ 316 P.2d 55 ], it was held that safety regulations were applicable where a student in a printing class in a public school was injured while using an unguarded printing press. It was said therein, at page 260: “It was thought for some time that the regulations of the Division of Industrial Safety were devised for the sole purpose of imposing duties upon employers for the exclusive benefit of their employees. Some of the decisions so held. It is now settled that the regulations have a broader purpose, and that this could not be accomplished without construing them as applicable to the general public, as declared in the Porter ease. The primary purpose of the regulation of the Division of Industrial Safety is for the protection of employees, and while they no doubt are inapplicable where conditions of employment do not exist, it would seem that whenever they do exist the regulations are applicable unless there is to be found in them or in applicable law a purpose to exclude certain conditions. The only conditions that are excepted are those specified in section 6302, Labor Code, which makes the regulations inapplicable to ‘a place the safety jurisdiction over which is vested by law in any State or Federal agency other than the division.’ ”

In the present case the plaintiff and defendant Rain-ville were experimenting with the machine in testing its usability for wrapping a small brush with cellophane. Plain

Appellant also contends that the court erred in giving Rainville’s requested instruction, which was as follows: “You are instructed that there have been no claims advanced or allegations made that the operation of the machine involved in this case was illegal in any respect. You shall not consider any opinion held or expressed by any member of the jury as to any law affecting the required use of any safeguards in ordinary demonstration operations of the machine, but you are to consider only the law as you are otherwise instructed by the court. You are admonished that the incident resulting in injury to the plaintiff arose out of a demonstration or joint testing of the capabilities of the Auto-Vac machine by the plaintiff as Chief Engineer for his employer and by the defendant Arthur Rainville as a salesman for the Auto-Vac Company.” Plaintiff alleged in the complaint that Rainville so negligently and unlawfuly operated the machine as to cause it to injure plaintiff. It thus appears that the first sentence of the requested instruction was erroneous in that it instructed that “. . . there have been no claims advanced or allegations made that the operation of the machine . . . was illegal in any respect.” The court erred in giving that instruction.

Appellant also contends that the court erred in refusing to give his requested instruction to the effect that Rainville had the last clear chance to avoid the accident. His argument is that Rainville had a last clear chance to avoid the accident by immediately pressing the emergency stop button. The evidence shows that the clamping frame was about 12 inches above the molding base when Rainville pressed the down button, and that when the button was pressed the

The judgment of nonsuit in favor of defendant Pearce is affirmed. The judgment in favor of defendant Rainville is reversed. Defendant Pearce to recover his costs. Plaintiff to recover his costs, except one-half the cost of his opening and closing briefs.

Shinn, P. J., and Vallée, J., concurred.