McEVOY v. AMERICAN POOL CORPORATION

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

McEVOY v. AMERICAN POOL CORPORATION et al.

Civ. 15782.

Decided: October 28, 1947

Richard K. Gandy and Robert G. Cockins, both of Santa Monica (Mark E. O'Leary, of Los Angeles, of counsel), for appellant. Reginald, I. Bauder, of Los Angeles (Robert E. Ford, of Los Angeles, of counsel), for respondents.

In this action for damages for personal injuries, ‘after the jury had been selected and opening statements of counsel for plaintiff and defendants had been made, the trial court, upon motion for a non-suit by defendants based upon stipulation as to evidence to be introduced by plaintiff, gave judgment of non-suit.’ Plaintiff appeals from the judgment.

It is contended on appeal that the ‘Facts show negligence on the part of defendants sufficient to make a case for jury’; that the ‘Facts show negligence of defendants in failing to exercise the care required in furnishing dangerous substances for the use of their employees'; and that the ‘Facts show defendants were liable because of the conduct of their employee’.

The record reveals that defendants are engaged in the business of ‘cleaning swimming pools'; that 8 or 9 service men and a service manager are employed for this work; that ‘a service man's equipment consists of a vacuum cleaner, garden hose, a skimmer for taking the leaves out of the pools, and certain chemicals consisting of copper sulphate, ammonia pea chrystal alum, aqua-ammonia, Purex and sodium hypochlorite. The aqua-ammonia and the sodium hypochlorite are issued to them in glass gallon jugs. To transport this equipment each service man is required to provide his own vehicle, which in most every case is a private car, such as a sedan, roadster, or coupe, and the corporation compensates him for the use of his car. It is necessary for them to carry 16 to 18 gallons of the sodium hypochlorite and 3 or 4 gallons of the aqua-ammonia. The sodium hypochlorite had an available content of chlorine of 17%. Sodium hypochlorite is made by dissolving chlorine gas in a solution of caustic soda. This solution is highly unstable and emits chlorine gas and breaks down while in solution into hydrochloric and hydrochlorous acid. No racks or equipment of any kind were furnished to the service men for their use in transporting these chemicals.’ ‘On the 20th day of April, 1946, at approximately 1:30 a.m. * * * plaintiff was riding as a guest in a vehicle operated by Jack McEvoy, her son, who was a service man of the defendants at the time.

‘In McEvoy's car was a load of these chemicals. The plaintiff was unaware of the nature of the load. She had often ridden with Jack McEvoy when the vehicle was so loaded. McEvoy himself was unaware of the dangerous propensities of the load, and had never received any instructions relative to unloading it at night.

‘At the aforesaid time and place the McEvoy car was struck by another car and turned over. The bottles containing the chemicals broke and poured over the plaintiff, eating the clothing from her body, and she inhaled the fumes from the chemicals, both of which caused the damages complained of.’ The driver of the other car is unknown.

It is appellant's contention that the ‘conduct on the part of defendants in furnishing inherently dangerous substances for the use of their service men and sending these service men out with absolutely no precautions to prevent the breaking of the bottles and the escaping of these chemicals, and with absolutely no instructions or warning as to the dangerous nature of the chemicals and the necessity of properly safeguarding them from escaping, when they had knowledge of the dangerous nature of the chemicals and knew that said bottles often broke, created a situation wherein there was great danger of injury to third persons and required of defendants a correspondingly high degree or amount of care to prevent injury to said third persons'; and that the failure to exercise such care constitutes negligence.

Appellant relies on for examples, such cases as Katz v. Helbing et al., 215 Cal. 449, 10 P.2d 1001; Congdon v. California Drug & Chemical Co., 29 Cal.App. 200, 154 P. 1062; Burke v. W. R. Chamberlin & Co. et al., 51 Cal.App.2d 419, 125 P.2d 120, and others. The cases cited are of little if any aid in disposing of the question herein considered. The facts in the cited cases present entirely different situations as an examination thereof will reveal. For example, in the Katz case, defendants therein ‘had allowed a box containing caustic lime to remain on the sidewalk uncovered and unguarded’. (Italics added.) In the within action appellant's principal complaint is that defendants could have done a number of things which, if they had been done, would have minimized the danger in the event of a collision. For example it is argued that defendants ‘could have used non-breakable containers to carry these chemicals, or they could have used racks to hold the jugs, or they could have labeled the jugs, or they could have instructed their service men with regard to the dangerous nature of the chemicals, or they could have required that their service men never carry passengers while carrying chemicals, or they could have required that all chemicals be loaded in the morning and unloaded at night.’

It is at once evidence that appellant's argument in the final analysis in effect is a series of ‘ifs'. Such arguments are based on conditions, assumptions, suppositions and speculations that at most only tend to involve and complicate the sole issue. An argument of ‘ifs' creates only a speculative premise from which no valid logical argument can proceed and upon which no logical conclusion can be based. The fact remains, as the record reveals, that, the proximate cause of the injury was the collision. But in this connection appellant points out that the trial judge, ‘made the statement that ‘there can be no claim that the plaintiff can recover on the theory of respondeat superior’. And the trial court in ruling on the motion and again in advising the jury of the granting of the judgment of non-suit emphasized the point that in his opinion Jack McEvoy was not, at the time the accident occurred, driving his automobile on business for his employer and hence not within the scope of his employment.' Appellant argues that ‘the trial court erred in determining as a matter of law that McEvoy was not acting within the scope of his employment when the accident occurred. True, the driving of the vehicle at the time in question was not an act within the scope of his employment. But the acts of placing the chemicals in the car and leaving them there at all times, which are the acts which caused the injury to plaintiff, were performed within the scope of Jack McEvoy's employment.’

Appellant's position is untenable. The fact that the chemicals were in the car was merely a condition and cannot by any process of reasoning disturb or alter the basic fact heretofore noted that the proximate cause of the injury was the collision. In a somewhat similar situation in Harrison v. Harter, 129 Cal.App. 22, 18 P.2d 436, 439, appears the following, ‘It is true that in the present instance without the gasoline, there would have been no fire, but without the collision there would have been no fire, regardless of where the gasoline was carried. In other words, it was not the carrying of the gasoline that caused the trouble; it was the collision following the reckless driving of the appellant. If this is not true, then in the instances which we have heretofore cited of cars being upset by collisions followed by fire and the burning of the inmates of the overturned car, the injured would likewise be without remedy, on the assumption that it was the fire that caused the injury of the inmates of the car and not the collision which overturned the car.’ (See also Marovich v. Central Calif. Traction Co., 191 Cal. 295, at page 303, 216 P. 595; Oakland Bank of Savings v. Murfey, 68 Cal. 455, at page 461, 9 P. 843; Hale v. Pacific Tel. & Tel. Co., 42 Cal.App. 55, 183 P. 280.)

In the light of the record appellant's contentions cannot be upheld.

The judgment is affirmed.

DORAN, Justice.

YORK, P.J., and WHITE, J., concur.