Opinion
Rehearing Denied Dec. 30, 1927.
Hearing Granted by Supreme Court Jan. 26, 1928.
Appeal from Superior Court, Los Angeles County; Victor R. McLucas, Judge.
Consolidated actions by Helen L. Brengle and others against Robert I. Steen and others. From a judgment of nonsuit, plaintiffs appeal. Reversed in part, and in part affirmed. COUNSEL
Vernon Brydolf, of Pasadena, and Jennings & Belcher, of Los Angeles, for appellants.
O’Melveny, Millikin, Tuller & Macneil and Thomas J. Reynolds, all of Los Angeles, for respondents.
OPINION
STROTHER, Justice pro tem.
Plaintiffs brought two actions to recover damages for the death of the husband of one of the plaintiffs-the father of the other plaintiff. The two actions were consolidated for the purpose of trial, and at the conclusion of the plaintiffs’ evidence judgments of nonsuit were on motion entered in favor of the several defendants. From this judgment plaintiffs appeal.
The deceased, Brengle, was killed by an explosion of gas alleged to have been allowed to escape by the negligent acts of the several defendants. The building in which the explosion took place consisted of four rooms. One, extending from the street line the full depth of the building, was occupied by Fawkes, a baker; the next room on the street was used as a butcher shop; the third was used as a confectionery and tobacco shop; the fourth room, which lay behind the butcher and tobacco shops, was used by Hooper, Brengle’s employer, as an automobile accessories storeroom in connection with a service station which he conducted on the lot adjacent to the building. Hooper had been the lessee of the building from the time of the first construction, the other occupants being his subtenants. All of the rooms in the building were equipped with house pipes for gas. The one leading into Hooper’s accessories room was not occupied and had not been from the time of its installation. The front end of the bakeshop was partitioned off from the rear and was used as a display and salesroom. On either side of the entrance door was a show window, which was glazed in from the room and was entered by glass doors. Under the show window next the butcher shop was a compartment in which the gas house pipes of all the other rooms headed for the installation of meters. The baker’s meter was larger than any of the others, as he used gas for his cooking. The other two subtenants used gas for other purposes. Hooper, the lessee, had never used it for any purpose, and had never ordered the installation of a meter to connect with the accessories store, nor does it appear that any one had ever ordered such an installation. A meter connecting with that store was installed by the defendant gas company at a later time than the others, and remained unused up to the time of the explosion. Just before the day of the explosion Fawkes, the baker, contracted with the defendant Steen for the removal of an old bake oven and the purchase and installation of a new one. On the morning of that day Woodruff, Redfern & Geisler, employees of Steen, went to the bakeshop for the purpose of doing the job, taking the new oven with them. Woodruff was the foreman on the job, and Redfern was his assistant. Geisler seems to have been taken along as a general roustabout and to help in lifting and carrying the ovens. In order to remove the old oven and put in the new one, it was necessary to have the gas turned off at the meter. This was done by Fawkes at the request of Woodruff. Geisler went with Fawkes to the front of the shop and was seen on the floor of the meter compartment after Fawkes had turned off the meter cock. Upon being told by Fawkes that the gas had been turned off, Woodruff and Redfern took down the old oven and set up the new one. They made no connection of the oven with the house pipe and did not go near the meters. The job was finished between 1 and 2 in the afternoon, and the three men went away. About 4:30 that afternoon Brengle started into the accessories storeroom to get some article for a customer and immediately there was an explosion from within. Brengle received burns from which he died the following day. An examination of the meter connected with the accessories room house pipe showed that 4,500 feet of gas had passed through it.
Appellant contends that the court erred in permitting an amendment of Steen’s answer at the time of the trial to correct an attempted denial of the allegation that Geisler was acting within the scope of his employment. The denial in the original answer was defective, but it was sufficient to put plaintiffs upon notice, and it is not shown that they suffered any disadvantage from the amendment.
A number of questions were asked by defendants’ counsel on cross-examination to which plaintiffs objected as not referring to matters brought out by the direct examination, but relating to matters of defense. Most of these objections were not well taken, and the statements elicited by the questions which should have been ruled out are not set forth here and are not considered.
From the evidence adduced, the jury might reasonably have drawn the inference that Steen’s employee, Geisler, turned the cock which admitted the gas to the accessories room house pipe.
It is contended by respondents that the evidence does not justify the conclusion that if Geisler did turn the gas on he was acting within the scope of his employment when he did so. The evidence indicates that Geisler’s employment was limited to the work of lifting and carrying the ovens. He had, in fact, no part in taking down the old oven or setting up the new one. Woodruff, who as foreman was in charge of the job, gave him no orders to turn off the gas at the meter, but addressed himself to Fawkes, who turned it off. If Geisler then did anything to the meters the first time he went to them, he did it without any order and knowing that the only meter that concerned his employer had been attended to. His second visit to the meter was at the direction of Fawkes. An employer cannot be charged with responsibility for the acts of his employee done either to satisfy his own curiosity, or at the instance of some one else, and not in the course of his employment. We conclude, therefore, that if the case had been submitted to the jury they would not have been warranted in concluding that Geisler was acting within the scope of his employment.
The situation as to the respondent Southern California Gas Company is entirely different. Briefly stated, it presents the question whether or not a dealer in a commodity dangerous in itself can, particularly under the circumstances appearing in this case, provide a means for its introduction into the premises of one who has not ordered it without becoming liable for whatever damages may result from its introduction. The house pipe connecting with the accessories room was, of course, appurtenant to the room and under the control of its lawful possessor. With three meters, identical in appearance, placed in a row, it might easily happen that some person properly having the right to turn off and on one of the two in use, would by mistake turn the cock of the third. While it cannot be said that the placing of a meter in that way, was, as matter of law, an act of negligence, nevertheless it was within the province of the jury to say whether, under the circumstances, it was negligent. It may even be that the placing of the meter was a trespass from the beginning, and that it was incumbent upon the defendant to exercise more than ordinary care to avoid any possible injury to those lawfully upon the premises. But this is not urged by the appellants, and we shall not pass upon it. It is conceded by both sides that ordinary care was required of respondents in handling this commodity, and the question therefore is on the construction of the admitted facts.
For the reasons stated in the foregoing, the judgment of nonsuit as to the defendant Steen is affirmed, and the judgment reversed as to the defendant Southern California Gas Company.
We concur: TYLER, P. J.; CASHIN, J.