Freedman v. Imperial Cattle Co.

VALLÉE, J.

Appeal from an order denying the motion of defendants Imperial Cattle Company, a corporation, and Adolph Weinberg, for an order changing the place of trial of the action from Los Angeles County to Imperial County.

The principal office of Imperial Cattle Company is in Imperial County. Weinberg is a resident of Los Angeles County. The remaining defendants reside outside Los Angeles County. The question is whether there is any substantial evidence to support the implied finding of the court that Weinberg is a necessary party defendant.

The action is for damages for personal injuries sustained in Imperial County. Epitomized, the complaint, which is treated as an affidavit for the purposes of the motion, alleges that: defendants maintained a building and premises in Imperial County in which they conducted a cattle and grain business; on the premises they maintained a screw conveyor in a pit; the pit was covered with loose, unsecured boards which had slippery grain lodged beneath them; some of the boards were defective; the conveyor was “unguarded”; safety orders of the Department of Industrial Relations require that “screw conveyors and pits and surrounding areas” be protected with guard rails, toe boards, wire mesh, and other

[595]

safety devices; the screw conveyor and pit were in the exclusive control of defendants; defendants negligently allowed the area about and over the pit and the opening of the screw conveyor “to become in a state of disrepair” so that it did not adequately cover and safeguard the screw conveyor and pit; on July 30, 1951, plaintiff Karl Freedman, an invitee, at the direction of defendants, parked his truck over the screw conveyor and pit to load some sacks in the area; by reason of the negligent manner in which the screw conveyor and pit were covered plaintiff was precipitated into the pit causing severe injuries.

Two affidavits of Weinberg were filed in support of the motion. They state: he is vice president and a stockholder of defendant Imperial Cattle Company; on the day of the accident he was not in Imperial County; he has no interest in or posesssion of any of the property of the corporation other than as a stockholder; he did not at the time of the accident or prior thereto have any part in the management or operation of the business of the corporation; he has no knowledge of the condition of the conveyor on July 30, 1951, or at any time prior thereto; “he has no knowledge of any dangerous condition existing in connection with said conveyor”; he has no knowledge of any hazard to plaintiff either on the date of the accident or prior thereto; “he knows nothing whatever about the operation of such conveyor, or similar type of equipment, and states that he has not seen such conveyor, or similar type of equipment, more than two or three times in his lifetime.”