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


Civ. 13864.

Decided: April 21, 1943

Russell H. Pray, of Long Beach, and Samuel P. Block, of Compton (S. J. Nordorf and William C. Price, both of Long Beach, of counsel), for appellant. Ben C. Cohen and George Cohn, both of Los Angeles, for respondents.

Defendant corporation appeals from a judgment in favor of plaintiff Janice Crane, a minor, for personal injuries, and her father, Bruce Crane, for consequential damages occasioned by injuries received by said minor when the child allegedly inserted her finger in a coffee grinding machine maintained and operated by defendant C. S. Smith Metropolitan Market Company. Briefly, the record reveals that appellant's store is what is known as a self–serve market wherein patrons serve themselves and pay for their purchases at a checking counter. However, when purchasing freshly ground coffee, patrons do not serve themselves but inform a clerk as to the amount desired and such clerk then and there grinds the coffee beans in appellant's coffee grinder. With reference to the location of the coffee grinder, it appears that it was placed upon an aisle or at least a passage way readily accessible to customers in the store, whether adults or children.

On August 6, 1939, about seven–thirty o'clock in the evening, the minor plaintiff then three years of age entered appellant's store accompanied by her mother. The mother requested one of the store clerks to grind one–half pound of coffee for her. As she approached the customer's side of the coffee counter she was holding her minor daughter's left hand with her right. At this time the mother placed the bread she had purchased on the counter and let go of her daughter's hand. The child was to the mother's right, close to the coffee grinder. Suddenly the child rushed back to the mother and showed her its finger which had been injured. The mother immediately took the child out to the automobile where Mr. Crane was, and in looking at the child's finger noticed “some brown stuff” on the finger, which she testified looked like coffee. The mother returned to the store with the child and at that time saw blood on the floor under the spout on the south side of the coffee grinder. The motor had not been shut off for any time between the period when the child left her mother and returned exhibiting her injured finger. The mother testified she could hear the motor running. The spout of the machine was exposed by the moving of the cannister and the lip of the cannister had been broken before the time the accident occurred.

Trial was had before the court, sitting without a jury, resulting in a judgment against appellant in favor of the minor plaintiff for $4,800 and in favor of plaintiff Bruce Crane, father of the minor, in the sum of $45.

The complaint herein contains four separate counts. The first three sought recovery of damages on behalf of the minor plaintiff for personal injuries and the fourth was on behalf of the plaintiff father for medical expenses incurred. By their complaint plaintiffs charged that defendants were negligent in three specific respects: (1) Negligent placement of said machine in an aisle in a store without any appropriate safeguard to infants or children of tender years who might lawfully be upon the premises and who might be attracted to such machines; (2) negligence in failing to place proper safeguards around the said coffee grinding machine to prevent injury to children of tender years; and (3) negligence in the operation of said coffee mill.

The court found that the coffee grinder “was easily accessible and dangerous to children of tender years”. That as a direct and proximate result of the negligence of defendant, plaintiff, being too young to comprehend the attendant danger, inserted her finger in the coffee grinder. That said injuries were sustained as a direct and proximate result of the negligence of defendant. It is most earnestly contended by appellant that the evidence does not establish negligence on its part. While conceding that when the minor plaintiff entered the store accompanied by her mother she was an invitee, it is argued that she exceeded the scope of the invitation when she inserted her finger in the discharge spout of the coffee grinder. That thereupon her status became that of a mere licensee or trespasser to whom appellant owed no further duty or obligation other than to refrain from wilfully or wantonly injuring her. It must be conceded that one may be an invitee upon certain portions of the premises of another for proper purposes, and yet may become a mere licensee on or about other portions of the property, dependent upon the particular circumstances of the case. Medcraft v. Merchants' Exchange, 211 Cal. 404, 407, 295 P. 822; State Compensation Insurance Fund v. Allen, 104 Cal.App. 400, 413, 285 P. 1053.

It should be noted at the outset that the coffee grinder was so constructed that no injury could result from accidental contact with any part of it exposed to such contact. Injury could result only from a deliberate act such as it is assumed respondent was guilty of, viz., inserting her finger into the mechanism. It follows therefore that although the presence and location of the coffee grinder may be regarded as the remote cause of the injury nevertheless the direct or proximate cause was the act of respondent hereinbefore described.

Camp v. Peel, 33 Cal.App.2d 612, 92 P.2d 428, 430, was concerned with the question of liability for injuries to a minor. There the court affirmed that: “ ‘ “A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior effective condition, such subsequent act or condition is the proximate cause.” ’ ” (quoting from Hauser v. Pacific Gas & Elec. Co., 133 Cal.App. 222, at page 226, 23 P.2d 1068, at page 1070, which quoted from 45 C.J., p. 931.)

Moreover, there is nothing to indicate that the coffee grinder was a dangerous instrumentality. It was not of and in itself likely to cause injury to property or person. It was not inherently such an agency as to have required defendant to take extra precautions in connection with its location and use. That defendant was bound to exercise reasonable care and caution such as a prudent person under like circumstances would exercise in seeing that the premises are in a safe condition so as not to expose one lawfully entering upon them to injury or danger, there can be no question. See Means v. Southern California R. Co., 144 Cal. 473, 77 P. 1001, 1002, 1 Ann.Cas. 206. There the court declared: “In order to constitute actionable negligence, there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury, a failure to discharge that duty, and injury resulting from the failure. Not only must the complaint disclose these essentials, but the evidence must support them, and the absence of proof of any of them is fatal to a recovery. The facts stated in the complaint met all these essential requirements, but the evidence adduced upon the trial did not accord with the allegations of the complaint, nor square with the principle of law referred to.”

It is a matter of common knowledge that virtually every merchandising business has on display articles that if tampered with by children are likely to cause injury, articles that are not inherently dangerous. Although some states have gone so far as to impose liability on merchants in such circumstances based on the contention that children of tender years cannot be bound by the doctrine of contributory negligence, nevertheless, the courts of this state have not gone to that extreme. As declared in Powers v. Raymond, 197 Cal. 126, 239 P. 1069, 1071: “But when it was made to appear that the occupancy and use of the portion of the premises on which the plaintiff was injured could not under any rational view of the evidence be within the scope of the invitation, she became a mere licensee, to whom the defendant owed no duty except to abstain from willful or wanton injury. Means v. Southern California R. Co., 144 Cal. 473, 77 P. 1001, 1 Ann.Cas. 206; Giannini v. Campodonico, [infra]; 16 Cal.Jur. 282, and cases cited.”

As a matter of law, the presence and location of the coffee grinder in the circumstances here presented was not negligence on the part of the defendant. Nor does the fact that plaintiff was a minor provide the negligence on the part of defendant if per se none existed. “The fact that respondent is a minor does not give him any greater rights under the circumstances. ‘That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy, but cannot create rights or duties which have no other foundation.’ ” Giannini v. Campodonico, 176 Cal. 548, at page 551, 169 P. 80, at page 821.

For the foregoing reasons the judgment is reversed.

I dissent. It is my opinion that under the facts of the present case the minor plaintiff at no time occupied a status other than that of invitee. The cases are in harmony with the declaration that the visitor to a store serving the public need not himself be upon the premises for the purposes of the owner's business. For instance, those who go to a hotel to pay a social call upon guests or to a railway station to meet passengers or bid them farewell, are regarded as business visitors, and by the same token a child taken by its mother, as in the instant case, to a shop or store is a business visitor regardless of whether it is necessary for the customer to take the child with her in order to visit the shop. 2 Restatement of the Law of Torts, paragraph 332(d). In the case at bar it is obvious that appellant knew that in the operation of its store there would be children, as well as men and women passing at or near the location of the coffee grinder, and a duty rested upon appellant to see to it that the machine was so placed, kept and operated that men, women and children, rightfully in the store, would not be unduly exposed to danger. Where children who have not arrived at the age of discretion are invited to go upon premises, those in possession are required to exercise a relatively higher degree of care for their safety than to adults. The minor plaintiff herein, three years of age, being an invitee, appellant owed to her the duty of taking reasonable precautions to prevent injury that would likely ensue from childish curiosity with respect to objects or machines which common knowledge dictates would arouse the interest or attention of such a child. Bergman v. Feitelowitz, 253 App. Div. 323, 1 N.Y.S.2d 983. Whatever may be the rule with reference to the alteration of the status of an invitee to that of licensee or trespasser in the case of adults, it is my opinion that under the circumstances here present it can not be held that when the child went to the machine and inserted her finger therein she altered her status as an invitee, because she was too young to be guilty of negligence in so doing (Gonzales v. Davis, 197 Cal. 256, 240 P. 16; Hillerbrand v. May Mercantile Company, 141 Mo.App. 122, 121 S.W. 326; Scandalis v. Jenny, 132 Cal.App. 307, 22 P.2d 545); and as heretofore pointed out, the obligation rested upon appellant to realize that normal children of tender years might come in contact with the coffee grinder, and not to unduly expose such children to danger.

The majority opinion holds that the condition and placement of the machine, as well as the manner in which it was maintained and operated, were not the proximate cause of the child's injury. The trial court found upon substantial evidence that the minor plaintiff was too young to comprehend the danger of contact with the machine and that the grinder “was easily accessible and dangerous to children of tender years”. Whether the result that ensued from the manner in which the coffee grinder was maintained should reasonably have been foreseen by appellant, it seems to me is a question addressed to the trier of facts. Even though it be conceded that different conclusions may be drawn from the evidence as to whether the actions and conduct of appellant were the proximate cause of the injury or damage, that question is primarily one that must be left to the jury, or in the instant case, to the court. Wells v. Lloyd, 35 Cal.App.2d 6, 10, 94 P.2d 373. And where as here there is evidence to support the court's finding in that regard an appellate tribunal is not authorized to disturb such finding. While it is true, as contended by appellant, that it produced certain testimony given by experts to the effect that the type of coffee grinder here involved as well as its placement in the store was in conformity with established practice and usage employed by storekeepers generally in the locality where the accident occurred, there was also evidence proffered on behalf of the minor plaintiff in direct and sharp conflict therewith. Needless to say, the decision of the trial court upon the credibility of such witnesses and the intrinsic value of their testimony can not be disturbed on appeal.

The majority opinion holds that when the minor plaintiff placed her finger in the coffee grinder, her act in so doing was her own independent intervening act and precludes a recovery. With this I can not agree. It seems to me that it is immaterial whether the child intentionally thrust her finger into the machine or got it in accidentally, for she was too young to be guilty of any negligence (Gonzales v. Davis, supra; Hillerbrand v. May Mercantile Co., supra; Muller v. Standard Oil Co., 180 Cal. 260, 180 P. 605); and having invited people, including children, to come into its store, appellant was bound to see that its coffee grinder, which might cause injury, was so kept and operated as not to unduly expose children to danger. Granting that the test is whether it was within the reasonable contemplation of appellant to have foreseen that as a result of the manner in which it maintained the coffee grinder upon its premises, an accident and injury might occur to a child lawfully upon the premises, we are not authorized to disturb the conclusion thereon arrived at by the trial court adverse to appellant, when such finding is predicated upon conflicting evidence.

There being in the record sufficient evidence to justify the court in finding that appellant was guilty of negligence and that such negligence was fastened to the child's injury, I am of the opinion that the judgment should be affirmed.

DORAN, Justice.

YORK, P. J., concurred.

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