27 Cal. App. 2d 307 | Cal. Ct. App. | 1938
On September 20, 1934, one Elmer Gates, who was at the time superintendent of the pole yard of the San Joaquin Light and Power Corporation at Fresno, was killed in an accident which occurred there in the course of the unloading of a truck and trailer, belonging to respondent R. 0. Deacon Lumber Company and operated by respondents Dewey and Farrar. Gates was killed by being pinned between a load of lumber which slipped sideways from off the rear end of the trailer and a pile of cross-arm lumber which lay a few feet away from the trailer on that side.
It appears that the San Joaquin Light and Power Corporation had ordered from the Wendling Nathan Co., of San Francisco, a quantity of cross-arm lumber which was to be shipped by boat to Stockton and there transferred on the premises of the respondent Mid-State Lumber Terminal, a corporation, and the subsidiary of the respondent San Joaquin Lumber Company, to the trucks and trailers of the respondent R. 0. Deacon Lumber Company, to be then hauled to Fresno. Respondent Jones is the manager of the Mid-State Lumber Terminal’s yard at Stockton. Deliveries were to be made in that manner pursuant to contractual arrangements between the Wendling Nathan Co., the Mid-State Lumber Terminal and the R. 0. Deacon Lumber Company. A shipment of cross-arms in lengths of 8, 10, 16 and 20 feet having been, in accordance with these arrangements, received at Stockton, was brought under a crane of the Mid-State ■ Lumber Terminal and there assembled in truck and trailer loads under Jones’ supervision by employees of San Joaquin Lumber Company. Dewey was in immediate charge of the truck and trailer here involved and Farrar was his helper. Both were employees of the R. O. Deacon Lumber Company. Dewey drove the truck and trailer under the crane and by the use of the latter, employees of the San Joaquin Lumber
On the occasion of the accident, according to Dewey, the deceased, Gates, cautioned him to put this last-mentioned chain about the load, to which he answered “We always do.” The two men then walked along the left side of the trailer and truck to the cab of the latter, where Gates signed a tag. Dewey did not, just then, see anything more of Gates, but himself walked to the back end of the trailer and proceeded to roll the lumber off. He found Farrar there rolling the load. It had already been rolled back for the customary 3 feet preparatory to placing the confining chain about it. This was placed there by Dewey and Farrar. Then Dewey started to roll the load on back. Farrar stepped “along side the trailer about midway of the trailer”. Dewey, in operating the bar in the roller, was standing on the left side of the trailer and about a foot and a half away from it facing “southeast”, which would mean that he must have been looking diagonally across it toward the front. He was aware of Farrar’s presence farther forward on the left side, but noticed nobody between himself and Farrar. His description of what next occurred is as follows:
“As I was rolling the lumber back, and the front end started to leave the trailer bed, I glanced up and seen the load coming towards me. I turned and ran towards the back end of the trailer, of the lumber, and I held my left hand out, and the lumber came over against me. It pushed me away from the lumber, and as I neared the back end of the load, why I was knocked down.”
He says that when the lumber started to come toward him he had “rolled it back about where it balanced over”. The lumber 11 did not start to tip off as it usually does; it started
As appears from other testimony, the man turned out to be Gates, and was dead when released.
Farrar testified that he had not noticed Gates’ presence. When the load tipped he was a foot and a half to two feet away from the trailer, at about its center on the left side. He was there -watching the load slip back. The next thing he remembers is that the load started to come toward him. He heard no noise of cracking or breaking. When he saw the lumber coming toward him he turned and ran. He dodged north through an opening between the piles of cross-arms and ran clear outside the shed. Then he heard Dewey call out that there was a man caught. When the truck was pulled up Gates was released and the power company’s employees carried his body out. After the lumber was off Farrar noticed that the beam was broken on the back of the trailer, that is on the left side in the rear. The roller was tipped up in a slanting position.
One Sawyer, a subordinate of Gates, testified that he had given directions to the truck driver (Dewey) just where to stop when he entered the shed. Sawyer was outside the shed at the moment of the accident engaged in carrying out some directions of Gates but came in and helped carry Gates’ remains away.
One Howard, a builder of trailers, testified that the method of installation of the roller adopted by respondent R O. Deacon Lumber Company is the one generally accepted.
The present action is prosecuted by Gates’ heirs, consisting of his widow and two sons, one of whom is a minor appearing by his guardian ad litem, to recover the damages sustained by them in consequence of Gates’ death. The original complaint was filed on November 1, 1934. The only defendants designated therein by their true names were the Wendling Nathan Co., the R 0. Deacon Lumber Company, Valley Lumber Company, Dewey and Farrar, but there were five fictitiously named defendants sued, and on February 3, 1936, summons was served on respondents Tom Jones, San
The orders of the trial court overruling the demurrer to the amended complaint of the four respondents, Jones, San Joaquin Lumber Company, Falconbury and Mid-State Lumber Terminal, and denying their repeated motions to strike out that pleading were, of course, mere interlocutory orders and in no way binding on this court in its consideration of an appeal from the judgment of nonsuit, and there is no reason why, in considering whether or not a nonsuit was in order, the applicability of the statute of limitations pleaded may not be here passed on de novo. In other words, the trial court’s rulings on the demurrer and motion to strike have in no sense become res judicata.
The record fails to disclose in detail the grounds upon which the motion for nonsuit in behalf of the respondents Jones, San Joaquin Lumber Company, Falconbury and Mid-State Lumber Terminal was made. The reason assigned by the court for granting it has already been referred to. In our opinion, regardless of the reason that the trial court actually gave for granting the motion, its action must, in so doing, be sustained for the reason that appellant’s right to maintain this action against all or any of these four respondents is clearly barred by subdivision 3 of section 340 of the Code of Civil Procedure fixing one year as the limit of time within which an action may be commenced for the death of one caused by the wrongful act or neglect of another. It is settled that when a defendant has pleaded the bar of the statute of limitations a motion for nonsuit must be granted if the evidence shows the action to be barred. (Beeson v. Schloss, 183 Cal. 618 [192 Pac. 292] ; Bass v. Hueter, 205 Cal. 284 [270 Pac. 958] ; Wrightson v. Dougherty, 5 Cal. (2d) 257 [54 Pac. (2d) 13].) Regardless, therefore, of what the trial court’s theory was in granting the motion for non-suit, the circumstance that as against these four respondents the statute of limitations constitutes a bar is sufficient reason for sustaining the judgment.
These respondents make the point that the record shows that they were not parties whom appellants, when they filed the action, had in mind at all as possible defendants, that the permission given by section 474 of the Code of Civil
No appeal has been taken by the defendants R. O. Deacon Lumber Company, Dewey and Parrar or any of them from the $5,000 judgment entered in pursuance of the jury’s verdict against them, but the only appeal from that judgment is taken by the plaintiffs. Their complaint, in so far as these respondents are concerned, is that the award of damages was inadequate. The record shows that plaintiffs and appellants, before taking their appeal, moved the court for a new trial and that their motion was denied. Two of the grounds stated in their notice of motion were “insufficiency of the evidence to justify the verdict” and “insufficiency of the evidence to justify the verdict in that said damages awarded were inadequate”. These three last-named respondents now make the point that the evidence is insufficient to have justified any verdict establishing any liability against them and that for that reason the damages awarded against them cannot possibly be inadequate. As indicating the proper course to be taken in these circumstances by the court appellants refer us to the case of Lambert v. Kamp, 101 Cal. App. 388 [281 Pac. 690], where the judgment was, for the reason given, affirmed, and to the case of Bencich v. Market Street Ry. Co., 20 Cal. App. (2d) 518 [67 Pac. (2d) 398]. The last-mentioned case was one in which, though a motion for new trial had been denied below, the Appellate Court deemed the record to show that the jury must have fixed damages that were inadequate, not from considering the extent to which the appellant was damaged, but through some compromise between the views of persons who believed that the respondent was not to blame for the injury at all, and those who believed it liable and would, but for such compromise, have fixed the award at a sum commensurate with the damages shown. In that case the inadequacy of the award was clear from the circumstance that so much of it would obviously be accounted for by the special damages shown, as to leave an unsubstantial sum to cover the general damages. In these circumstances the judgment was reversed and the case remanded to the superior court for retrial on all the issues joined.
This court has recently had occasion in Wallace v. Miller, 26 Cal. App. (2d) 55 [78 Pac. (2d) 745] (hearing denied
“We find nothing in the case of Tripcevich v. Compton, 25 Cal. App. (2d) 188 [77 Pac. (2d) 286], that necessarily conflicts with the conclusions we have reached. The court there merely held that on the record before it the trial judge did not abuse his discretion in granting a new trial on the question of damages only.
“As far as appears from that opinion the damages awarded were general and there were no special damages involved, especially special damages concerning the amount of which there was no controversy. Setting the amount of general damages involves an exercise of a rather broad discretion on the part of the triers of fact in reaching a just conclusion as to the amount that will compensate an injured party for the loss suffered. This is a question upon which there is often, we might be justified in saying, frequent, divergence of honest opinion in eases where there might be no difference of opinion on the question of liability. While the amount of general damages awarded should always have a reasonable relation to the loss suffered, there of necessity can be no fixed rule of the exact measure of general damages to be awarded for somewhat similar injuries. The facts of each case and the sound discretion of the triers of fact should be permitted to govern the award of general damages in*318 practically all cases. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages.”
In Zeller v. Reid, supra, this court had before it a situation wherein a jury had awarded damages in the sum of $1,000 to a plaintiff for the death of her minor son. This court there said:
“We can find nothing in the evidence that would force the conclusion that the verdict in this case was the result of a compromise on the part of the jurors or indicating that some of them had surrendered their views on the questions of the negligence of defendants and the contributory negligence of Harold merely for the purpose of bringing in a small verdict under the rules announced in Donnatin v. Union Hardware & Metal Co., 38 Cal. App. 8 [175 Pac. 26, 177 Pac. 845], Bencich v. Market Street Ry. Co., 20 Cal. App. (2d) 518 [67 Pac. (2d) 398], and Wallace v. Miller, 26 Cal. App. (2d) 55 [78 Pac. (2d) 745], Bather it falls within the rule adhered to in Tripcevich v. Compton, 25 Cal. App. (2d) 188 [77 Pac. (2d) 286]. The two lines of decisions are not conflicting and can be readily harmonized. (See Wallace v. Miller, supra.) Under the rule of the Tripcevich case the trial judge exercised a reasonable discretion in granting a new trial on the question of damages only. ’ ’
In the instant case the only item of special damages shown was $414, incurred for funeral expenses of the deceased. While the verdict does not specifically mention this item, it may be assumed to have been included in the $5,000 of damages awarded. This would have left $4,586 as the amount of general damages allowed. While it must be admitted that the allowance was not a liberal one, it is hardly so trivial that it can be said to shock the conscience or to re-’ quire us to hold that in allowing it to stand the trial court abused its discretion.
Por the reasons given the judgment of nonsuit is as to the defendants Jones, San Joaquin Lumber Company, Faleonbury and Mid-State Lumber Company affirmed and the judgment entered upon the verdict is, as to the defendants
Barnard, P. J., and Marks, J., concurred.
A petition for a rehearing of this cause was denied by . the District Court of Appeal on July 23, 1938, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1938.