Opinion
Rehearing Denied April 21, 1949.
Hearing Granted May 23, 1949. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Gibson, Dunn & Crutcher, Norman S. Sterry and Lasher B. Gallagher, all of Los Angeles (Gerold C. Dunn, of Los Angeles, of counsel), for appellant.
Walker, Meyers, Ingram & Moser, Parker, Stanbury & Reese and Raymond G. Stanbury, all of Los Angeles, for respondents.
OPINION
VALLéE, Justice.
The appeals are from judgments for plaintiffs and against Royal Realty Company, a corporation, entered upon verdicts of a jury in two actions for damages for personal injuries. The complaints named as defendants, Royal Realty Company, a corporation, and Herman Helbush, its President. The verdicts were in favor of plaintiffs-respondents and against the defendant-appellant Royal Realty Company and in favor of the defendant Herman Helbush. The actions were consolidated for trial and tried together. The two appeals have been submitted on one set of briefs. The questions presented in each case are identical. They will be decided in one opinion.
The cases arose out of a fire which occurred on January 20, 1944, in a workroom in a building located at the corner of Wilshire Boulevard and Alvarado Street in Los Angeles. Appellant Royal Realty Company was the lessor of a part of the building located on the second floor. Norman Noll, doing business as Noll & Company, was the lessee. The lease was made June 22, 1937, for a term expiring July 22, 1942. The lease provided that the premises were to be used for conducting "*** the business of manufacturers of and dealers in club furniture and equipment, and for no other purpose ***" and "That the lessee will not use, or permit to be used, the said premises, or any part thereof, for any purpose or purposes other than the purpose or purposes for which the said premises are leased, demised and let unto the lessee, as hereinbefore specified."
Thereafter Noll held over as a tenant from month to month under the terms of the lease and was in such possession on the day of the fire. Respondents are two of seven employees of Noll who were in the building at the time of the fire. Three met death. The other four, including respondents, were horribly burned.
Appellant’s points are: (1) The record disclosed that appellant was not liable to either respondent, hence the court erred, first, in denying appellant’s motion for a directed verdict in each case, and second, in denying its later motions for judgments notwithstanding the verdict. This point is based upon these contentions: (a) The record did not disclose the breach of any duty which appellant owed to respondents either under the common law or under any ordinance or statute; (b) the record did not disclose that any of the claimed ordinance violations contributed in any manner to respondents’ injuries; (c) it affirmatively appeared as a matter of law that each of the respondents assumed the risk of her injuries; (d) the record showed each respondent to have been guilty of contributory negligence as a matter of law. (2) The court erred in the admission of certain ordinances. (3) There was no evidence from which the jury could find, without indulging in speculation and conjecture, what portion of the respondents’ injuries was attributable solely to the acts or omissions of the appellant. (4) The trial court erred in admitting proof of respondents’ special damages and in instructing the jury thereon. (5) The court erred in giving and refusing certain instructions.
Many of the facts of these cases are the same as those in Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 195 P.2d 501, hearing denied by the Supreme Court, and are set forth in detail in the learned and exhaustive opinion of Mr. Justice White in that case. The cases at bar arose out of the same fire as did the Neuber case. It will not be necessary to narrate in this opinion the facts which are in common. Reference is made to the opinion in that case for those facts in detail. As we proceed we will state the facts in the cases at bar which did not appear in the Neuber case. The complaints in these cases are essentially different from those in that case. Here the cause went to trial upon one cause of action only— a charge of negligence by reason of the violation of specific ordinances and a provision of the Health and Safety Code.
From the facts which are common to the Neuber case and the cases at bar, the same legal conclusions must be drawn as were decided in that case. We are in full accord with those conclusions. The points of law which were decided in that case, and which are decisive of points made by the parties here, are these:
1. It is the general rule that a lessor is not liable for injuries to the person or property of a lessee or his invitees or employees caused by defects in the leased premises, the rule amounting to an application of the maxim caveat emptor. This rule is subject to the exception that if there be some hidden defect in or danger on the premises, which is known to the lessor at the time of executing the lease, but which is not apparent to the prospective lessee, the lessor is obligated to inform the lessee thereof; and, failing so to do, the lessor rendors himself liable for injuries sustained by the lessee resulting from such hidden defect. As to the lessee’s employees or his invitees (except as to a lease of public or semipublic buildings), the lessor is liable to the same extent as he would have been had the lessee been injured. There are other exceptions not mentioned in the opinion in the Neuber case.
2. No liability for tort can be imposed on appellant-lessor even though he was negligent, unless there was a duty of care owed by appellant to Noll’s invitees and employees.
3. Appellant, as lessor, did not owe Noll’s invitees and employees any common law duty to prevent injury to them by the careless and negligent manner in which Noll carried on and conducted his business in the demised premises.
4. Aside from consideration of ordinance violations, there was no negligence, consisting of breach of any common law duty owed by appellant to Noll’s employees, and recovery cannot be had on that theory.
5. Ordinance No. 87,000 of the City of Los Angeles, effective January 1, 1943, which constituted a new building code and expressly amended the "old" building code "in its entirety" repealed everything that was in the old ordinance and not contained in the new one.
6. All ordinances of the City of Los Angeles not applicable to buildings in existence on their respective effective dates were not admissible in evidence.
7. All ordinances of the City of Los Angeles claimed to have been violated not by the structure of the building as a building, but by the use which the lessee made of the leased premises, were not admissible in evidence. These ordinances were held inadmissible on the ground that an employee of Noll, the lessee, stands as to the lessor in the shoes of the lessee and has no greater or different common law right against the lessor because of defects in the leased premises than has the lessee; that necessarily when a lessee leases premises that are safe as leased but are rendered unsafe by his use of them, neither the lessee nor his employees can recover from the lessor for injuries resulting from that condition. Among the ordinances held inadmissible was one requiring that every room in which explosive materials in lots of more than 8 pounds weight are manufactured or used in any process or kept in unsealed containers, and every room used for processing cellulose-nitrate, shall be sprinklered, and another providing that such a room shall have two separate exits.
8. With the exception of the construction of a door between the workroom and the showroom, which door served as the only exit from the workroom and did not open outward but opened only inward, there was no failure by the lessor to comply with any ordinance affecting the building as a building.
9. Notwithstanding provisions of the lease giving the lessor the right to reenter at all times, the right to cancel the lease if the law was not complied with, and the fact, if it was a fact, that the lessor "had full and complete knowledge of the illegal and negligent activities being conducted in the premises during Noll’s entire period of occupancy", there was no legal duty on the part of the lessor to prevent the violations of ordinances by the lessee Noll.
10. Zoning ordinances of the City of Los Angeles have no application to the facts.
11. The lessor was not required under section 91.0315 of Ordinance No. 87,000 of the City of Los Angeles to apply for and obtain a "Certificate of Occupancy."
12. The failure to make application for a "Certificate of Occupancy" was not a proximate cause of the fire and consequent injury to Noll’s employees.
13. Section 91.3303 of Ordinance No. 87,000, providing that "Doors serving as exits shall open only in the direction ofexit ***" applied to existing buildings and imposed a duty on the owner to comply therewith.
The cases at bar differ from the Neuber case in a number of important particulars. Respondents did not in the trial court, nor do they here, assert liability of appellant because of common law negligence. They assert liability and say that negligence was established "because of the violation of specific safety regulations contained in the Los Angeles Building Code." Respondents did not attempt to prove and do not contend that appellant (1) breached any promise to repair, or (2) leased unsafe premises for public use, as such, or (3) concealed known latent defects, or (4) was responsible on any other basis of common law liability. They do not claim that appellant was obligated to inspect the premises, to supervise the lessee’s activities, or that it is responsible for the acts of the lessee. They maintain that "when a lessor lets premises which violate specific safety regulations established by law it incurs a liability to persons injured as a proximate result thereof, including employees of tenants." They say that the basis of liability in these cases was not that appellant failed to supervise Noll’s activities or that it failed to inspect the premises to ascertain what he was doing, but was "its own act in knowingly" leasing the premises in its unlawful condition.
The major part of appellant’s briefs, which were prepared before the Neuber case was decided, is devoted to argument in support of its contention that it did not owe any common law duty to respondents. As respondents did not so contend in the trial court, do not so contend here, and as the point was determined in the Neuber case, it is not necessary to discuss it.
Appellant’s contention upon which its first point is based, i.e., that the record did not disclose the breach of any duty which appellant owed to respondents under any ordinance or statute, is narrowed by the Neuber decision to whether section 91.3303 of Ordinance No. 87,000 of the City of Los Angeles applied to the workroom in which the fire occurred, and if so, whether it imposed a duty on appellant, the breach of which constituted negligence.
Section 91.0101, subsection (b) of Ordinance No. 87,000 provides: "Purpose. The purpose of this Article is to safeguard life or limb, health, property and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all buildings and structures erected or to be erected within the city." Section 93.3301, subsection (a), in Division 33, "Exits", in part, provides: "Purpose and Scope. The purpose of the limitations of this Division is to provide safe and continuous means of egress from every portion of every building. ***" Section 91.3303, in Division 33, in part, provides: "(a) Scope. Every door serving as an exit from an aggregate floor area of more than one thousand square feet (1,000 sq. ft.) shall be constructed and installed in conformity with the requirements of this Section *** (d) Details. Every door to an exit enclosure shall be self-closing. Doors serving as exits shall open only in the direction of exit and shall be openable from the inside without the use of a key. Sliding doors and rolling shutters shall not be used on exit doors." It will be noted that this section of the ordinance applies to each and every building with rooms of the specified square footage regardless of design, construction, quality of materials or type of use. For a long time prior to and at the time of the fire the only means of egress from the room involved— the workroom— was an exit, the door of which not only did not open outward but opened inward. The door had been in this condition at all times from the time the building was constructed.
Appellant in its closing brief, for the first time on the appeals, argues that the City of Los Angeles could not and did not intend by ordinance to change or affect the general law of this state governing civil rights and duties as between a landlord on the one hand and a tenant and his employees on the other. The point should not be considered. It should have been made in appellant’s opening brief. However, as it may arise on a retrial, we shall briefly indicate its fallacy. It would unduly lengthen this necessarily long opinion to allude to all of the ramifications of appellant’s fine spun argument. Appellant concedes that the city had power to pass the ordinance as a police regulation; that the cases hold that "absent some applicable excuse, the violation of a municipal ordinance is negligence"; that the city has power to " ‘make and enforce all laws and regulations in respect to municipal affairs’ (Constitution, Article XI, Sec. 8)"; and that the ordinance in question comes "within the words ‘municipal affairs’ as used in the Constitution." It argues "that any attempt to impose a penal duty on the owner or occupant of a building to do or refrain from doing any particular act for the preservation of the safety of a tenant or his employees, with the result that the act or omission will supply the element of civil duty inherent in an action ex delicto is not a municipal affair; and since, as to all matters other than municipal affairs, chartered municipalities ‘shall be subject to general laws’ (Constitution, Article XI, Sec. 8), it seems clear that the creation by ordinance of a civil liability which is repugnant to the general law of the State, is not permissible", and that a municipality cannot "by ordinance create a civil liability which does not exist under the general law. ***" The argument is delusive in assuming that the liability of the owner created by the ordinance providing that "Doors serving as exits shall open only in the direction of exit ***" is repugnant to the general law.
The Constitution expressly confers upon a municipal corporation power to "make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." (Article XI, sec. 11.) In People v. Fages, 32 Cal.App. 37, at pages 39-40, 162 P. 137, 139, the court stated: "It has been held that the legislative authority so delegated to local and municipal bodies within the limits specified is as broad as the power possessed by the Legislature itself. *** When the Constitution grants to local authorities the right to make and enforce police regulations ‘not in conflict with general laws,’ it is intended that local regulations of every kind may be made and enforced, except where the particular act described by the ordinance is the same act already included within the category of crimes as covered by the general Codes or statutes, or the punishment affixed by ordinance for acts of a lessor degree than similar acts described by the statute is in excess of or not in harmony with the punishment designated by the latter. All of the cases that we have examined go this far and no farther." It does not follow that because under general law a landlord is not liable for injuries to the person of the tenant or his invitees or employees, caused by defects in the leased premises, unless there is some hidden defect known to the lessor but not apparent to the lessee and the lessor fails to inform the lessee thereof, a municipality is thereby prohibited from enacting additional or supplementary local regulations. Different regulations may exist without a conflict. Pulcifer v. County of Alameda, 29 Cal.2d 258, 261, 175 P.2d 1; Natural Milk etc. Ass’n v. City etc. of San Francisco, 20 Cal.2d 101, 109, 124 P.2d 25; In re Iverson, 199 Cal. 582, 586, 250 P. 681; In re Hoffman, 155 Cal. 114, 117, 99 P. 517, 132 Am.St.Rep. 75; cf. Irwin v. Torbert, Ga.Sup., 49 S.E.2d 70; Williams v. Chicago, 266 Ill. 267, 107 N.E. 599, Ann.Cas.1916B, 514.
"A municipality, under the power delegated to it by the state, may enact ordinances creating duties for the protection of persons and property, and it is very generally held that those who violate such ordinances are liable for resulting injury to others." 45 C.J. 717, sec. 100; see, also, 45 C.J. 723, sec. 105; 1 C.J.S., Actions § 12, page 996; I Thompson on Negligence, 12, sec. 10. The argument has no merit.
As we have stated, the Neuber case held that the provisions of the ordinance that [86 Cal.App.2d 596, 195 P.2d 520] "Doors serving as exits shall open only in the direction of exit and shall be openable from the inside without the use of a key," applied to existing buildings and imposed a duty on the owner of the building to comply therewith. The ordinance imposed a duty on appellant. A breach of that duty is a violation of the ordinance and is negligence per se. The ordinance declares the duty and the breach constitutes the negligence. An owner incurs independent liability for injuries suffered by persons lawfully on the premises, including employees of a tenant, proximately caused by such negligence in the absence of some established defense. The ordinance imposes the duty irrespective of the use for which the premises are let or used. The ground of liability here is not the use made of the demised premises by Noll, nor that appellant failed to supervise Noll’s activities, nor that appellant failed to inspect the premises to ascertain what Noll was doing, but is appellant’s own breach of the provisions of the ordinance providing that the exit door shall open outward. The duty is imposed irrespective of appellant’s knowledge or lack of knowledge of Noll’s illegal operations. The ordinance imposes a positive, mandatory and continuing duty on the owner for the protection of persons lawfully in the building. The owner in such case is held liable for his own illegal act or omission and not for the act or omission of the tenant. The owner cannot avoid liability by making a lease imposing observance of the ordinance on the lessee. There is no immunity from the duty imposed on the owner by the fact that he is not an occupant. The liability of the owner— lessor— does not depend upon the concealment of latent defects, the leasing for public use, the breach of a covenant to repair, or the breach of any common law duty. Common law standards of duty applicable to the ordinary relationship of a landlord on the one hand and a tenant and his invitees and employees on the other hand are not relevant to the determination of negligence. The doctrine of imputed negligence— negligence of the tenant imputed to his employee and his invitee, epitomized by the catch phrase, the invitee stands in the shoes of the tenant,— does not apply to a case of injury to the tenant’s employee or invitee which has resulted from the landlord’s breach of a statutory duty. Roxas v. Gogna, 41 Cal.App.2d 234, 241, 106 P.2d 227; Harmon v. M.H. Sherman Co., 29 Cal.App.2d 580, 586-587, 85 P.2d 205; Goetz v. Duffy, 215 N.Y. 53, 109 N.E. 113, 114; Pollard v. Trivia Bldg. Corporation, 291 N.Y. 19, 50 N.E.2d 287, 290; Tralle v. Hartman Furniture & Carpet Co., 116 Neb. 418, 217 N.W. 952, 955; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681, 684, L.R.A.1917E, 250; Moore v. Dresden Inv. Co., 162 Wash. 289, 298 P. 465, 467-473, 77 A.L.R. 1258; Landgraf v. Kuh, 188 Ill. 484, 59 N.E. 501, 503; Annis v. Britton, 232 Mich. 291, 205 N.W. 128, 129; Klein v. Young, 163 La. 59, 111 So. 493, 499; 4 R.C.L. 405, sec. 11; annotation 77 A.L.R. 1273. Cf. Bevan v. Century Realty Co., 64 Ohio App. 58, 27 N.E.2d 777; Singer v. Eastern Columbia, Inc., 72 Cal.App.2d 402, 410-412, 164 P.2d 531; Scholey v. Steele, 59 Cal.App.2d 402, 405, 138 P.2d 733.
Appellant says that the square footage of the workroom was less than 1,000 square feet as a matter of law; that therefore the ordinance did not apply and should not have been received in evidence. It was stipulated that the floor area of the workroom exceeded 1,000 square feet if (1) the area of the stairwell and (2) either the portion of the floor covered by the balustrade or the ledge along the inner surface of the exterior wall are included, but if the stairwell opening and either the portion occupied by the balustrade or the square footage of the ledge is excluded, the floor area was less than 1,000 square feet. Section 91.0403(f) of Ordinance No. 87,000 defines: "Floor— Any structure which divides a building horizontally and shall include the horizontal members, floor coverings, and ceiling. Floor Area— The area in square feet within the exterior walls of a building but not including the area of inner courts, shaft enclosures, or exterior walls." Neither the area of the stairwell nor the portion of the floor covered by the balustrade nor the ledge along the inner surface of the exterior wall is excluded from the "floor area." It appears obvious that the square footage of the workroom exceeded 1,000 square feet.
Appellant’s contention that the record did not disclose that the violation of section 91.3303 of Ordinance No. 87,000 contributed in any manner to respondents’ injuries cannot be sustained. It is argued that the fact that the door to the only exit from the workroom opened inward and not outward did not impede or retard either respondent in leaving the room and consequently was not a proximate cause of the injuries.
Noll’s principal activity was the manufacture of dice using celluloid for the purpose. Cellulose tetra nitrate is blended with camphor producing celluloid. Celluloid is a highly inflammable material. It burns rapidly. As it burns, it instantly emits the gasses of nitrogen, carbon and hydrogen and various combinations of these gases, all of which are hot and toxic, i.e., they burn the mucous membrane. Celluloid in the form of shavings or dust burns much faster and more violently than celluloid in its solid form. It is explosive at its ignition temperature, which is about 350 degrees Fahrenheit, without contact with flame. In shavings or particles it will ignite instantly on contact with flame and burns rapidly and fiercely.
The upper floor of the premises occupied by Noll was divided into two rooms, the "showroom" and the "workroom." Between these rooms there were double doors so constructed as to open into the workroom and not outward from it. The westerly door of these double doors was blocked by means of a table in the workroom which was pushed against it. A cash register was kept on the table. The easterly door of these double doors was the only exit from the workroom on the day of the fire.
On that day there was a quantity of celculose nitrate in the form of cut dice in the workroom. About 150 pounds were consumed by the fire. About 10 pounds were not touched. In the fabrication of dice small particles of celluloid were drilled or milled from the cubes and collected on the machines and on the floor. There were shelves in the rooms with curtains hanging from them. Dust and shavings from the fabrication were blown off from the machines with electric blowers causing the particles to fly around the room and settle on the floor, the walls and curtains, and upon the clothing, hair and persons of the employees. There was no suction equipment or contrivance of any kind installed in the workroom or elsewhere to remove this material at its source or at all, nor was any mechanical ventilation provided. The only ventilation of any kind in the workroom was afforded by the doors and windows. At the end of each day’s work, the refuse and the celluloid dust and shavings on the floor were swept up by the employees and put into gunny sacks which were stacked along the wall until Noll found it convenient to take them away. At the time of the fire there were four gunny sacks full of celluloid shavings and sweepings stacked lengthwise one on the other along the north wall immediately east of the double doors, and there was a half full sack under Mrs. Finnegan’s machine. Alongside the four sacks and east of them there was an open cardboard trash box containing celluloid shavings and other refuse.
The fire occurred close to 5:00 o’clock and quitting time. Respondent, Mrs. Finnegan, was standing about 6 or 7 feet southwest of the double doors leading into the showroom. Respondent, Miss Merchut, was near the southwest corner of the same room. A Mr. Reuter, another employee, was standing near the northeast corner of the room close to the four gunny sacks. Mrs. Finnegan was facing toward Miss Merchut and had just asked if she could help her. Mr. Reuter then made some remark to Mrs. Finnegan and as she turned around toward him, she saw an object fly through the air and land inside the cardboard trash box. She could not say what it was. Flames immediately came up from the cardboard box. The flames hit the gunny sacks. An explosion occurred and a sheet of fire instantly shot out and spread over the entire room. The smoke was intense.
In the Neuber case it was held that the exit door was open when Mrs. Neuber reached it; that her escape from the workroom was not impeded or retarded by the fact that the exit door did not open outward— the ordinance violation— and that therefore the fact that the door did not open outward, as a matter of law, was not a proximate cause of her injuries. In the cases at bar we have an entirely different factual situation.
Mrs. Finnegan testified with respect to the knob on the exit door: "Q. Mrs. Finnegan, the knob on this door, is it the kind of knob that— turn around here, will you? Can you see the knob on that door, which is an orthodox door knob of about two inches in diameter probably? A. Yes.
"Q. Is that the sort of knob that was on that door? A. No.
"Q. What kind of knob was on that door? A. It was one of those door knobs you would find on a cupboard door. It wasn’t the kind that would turn. It was the kind you would just have to grab onto and turn on any object that it was attached.
"Q. Was it a knob that was attached at all to any catch or lock on the door? A. No.
"Q. It was simply as a handle to push or pull on? A. That is right, sir. ***"
She further testified:
"Q. And was the door leading from the workroom to the showroom and the one we have been talking about here, open or closed at the time the fire occurred? A. It was closed, sir.
"Q. Where abouts in these premises did you get these burns to your hands? A. I got the worst part of my burns right directly at the door." "He [Reuter] was hollering for me to help him from the flames on him, and thereafter the girls and all started running in a panic and hollering, and I crawled over to the door. It was all a mass of flames there, and I got— when I got to the door, I felt this pressure of these people up on top of me, and I reached up and grabbed the knob in my hand, and it slid right on down as I pulled it again; but I grabbed around and pulled up again, and reached down, and when I finally got the door open Miss Merchut had her arms around my waist. I tried to throw her arms off me when I felt the dead weight, but could not. I finally got the door open. The first time I tried to open it outward. In the excitement and panic I forgot which way the door would open, but finally I got it open and got out and pulled Miss Merchut after me.
"Q. All right. Let me ask you, which way did that door open. A. It opened toward me. I had to pull it inward to get out.
"Q. That is, it swung inward into the workroom? A. That is correct, sir.
"Q. Was it a two-way door? Did it also open out? A. No, sir.
"Q. I assume it goes without saying you were highly excited while you were there at the door? A. Yes, sir, I was.
"Q. And did you recall, when you got there, which way the door did open? A. No, sir.
"Q. You attempted to open it first which way? A. I tried to push it from me, you know, to get out. *** There was quite a bit of panic there at the door. I felt these people shove me from every which direction and pull me down, *** I was concerned in trying to find the little knob there so I could get out myself. I knew— I was aware of Miss Merchut because she kept hollering, ‘I am burning,’ and she had her hands around my waist, and I tried to tear them loose, and of course when I got out she still had her hands around my waist. ***
"Q. By Mr. Stanbury [Counsel for plaintiffs]: Were you, yourself, doing anything at the door except trying to get out? A. No, sir; that is all I was trying to do.
"Q. And in attempting to get out, were you using your hands? A. Yes, sir.
"Q. What were you doing with your hands? A. Part of the time I was using this one to try to protect my eyes, and the other one groping around for the little small knob.
"Q. All right. Did you use your hand when you got hold of the knob? A. Yes, sir, I pulled it in and got out.
"Q. Now, was it hot around that door? A. Yes, sir, it was all in flames.
"Q. Were there flames around you at the time you were there? A. Yes, sir.
"Q. Did you get your hands burned? A. Yes, sir. I got my hands all burned, and at the time I got out, why, my hands were bleeding, they were all cut, and the flesh was falling off them. My face was swollen, and I could feel a bursting and cracking sensation to my skin.
"Q. Was there anything wrong with your hands before the fire? A. No, sir.
"Q. Have you anyway of telling us how long you were at that door before you got out? A. It seemed like an eternity to me when I was there at the door. ***
"Q. Before the fire what substance was in that central panel of those doors? A. Wood. ***
"Q. And at the time this fire started, was there any obstacle or obstruction of any kind between you and this doorway? A. No, sir. ***
"Q. By Mr. Gallagher [Counsel for defendant]: Now, it was just a matter of a second after the explosion occurred before you caught on fire, wasn’t it? A. That is correct. I was right close to the door and in line with the fire, and I threw myself out.
"Q. In other words, you were on fire before you could hardly move at all? A. Yes, I was right in line with the explosion.
"Q. Now, the smoke was so thick and dense over in the vicinity of the door as you were crawling toward it, that you could not see the door, isn’t that true? *** A. That is right.
"Q. By Mr. Gallagher: And in your progress while crawling along the floor, you bumped against the table on which the cash register sat? A. Yes, because it was right next to the door.
"Q. You could not see the table or the cash register there on account of the smoke, isn’t that right? A. That is right.
"Q. Now, when you got to the door, you stood up, isn’t that right? A. That is correct.
"Q. And you could not see the door or the door knob on account of the flames and smoke there, isn’t that right? A. The flames and smoke, yes.
"Q. You got over to a point where you thought you were close to the door, and did you start feeling for the knob? A. Well
"Q. Or. did you first try to push the door open? A. When I first got there, you see, it was just a matter of seconds from the time I threw myself to the floor until I hit the door, because I was very near it, and then I got up and tried to push my way out.
"Q. Then after you tried to push the door open, you remembered, or at least it came into your mind that the door opened inward, and you would have to get hold of the knob, isn’t that right? A. At the moment of panic, like that, I was concerned in trying to push, and it would not work, so I felt around and had hold of the knob several times, but my hands slipped off from it, and the only time I really grabbed the knob I got the door opened."
Mrs. Finnegan also testified at the Neuber trial, which testimony was read into the record here as follows:
" ‘Q. All right, Mrs. Finnegan. Did you ever get hold of the knob at all up until the time you actually opened the door? A. No, sir.
" ‘Q. The first time you actually got hold of the knob of the door did you open the door? A. Yes, sir.
" ‘Q. And prior to the time you got hold of the knob of the door, did you personally move any other person? A. No, I just felt somebody on me. I didn’t know it was. I just heard Miss Merchut’s voice, that is all.
" ‘Q. What I mean is, you didn’t take hold of any person’s body with either hand and move it? A. No, I was only concerned in getting out of that room, Mr. Gallagher. ***
" ‘Q. You told me that at the time you got hold of the door knob the first time you pulled the door open? A. Yes, sir.
" ‘Q. Isn’t it a fact? A. Yes, sir.
" ‘Q. Is that the fact? A. Yes, I got it open. ***’ "
"Q. Now, you recall so testifying? A. Yes, sir. Like I said, there, I touched the knob but the only time I actually got hold of it, I got the door open."
Miss Merchut testified as follows:
"Q. [By Mr. Stanbury] What did you do when the fire broke out? A. I ran to the door.
"Q. When you say you ran to the door, you mean to the door to what? A. The exit door right near the elevator there. ***
"Q. Now, whereabouts did you get into the flames? A. When I was on my way to the door.
"Q. How close to the door were you? A. Oh, just a matter of a few steps, about six or seven feet away from the door.
"Q. And when you got to the door were you conscious of anyone else being there? A. Mrs. Finnegan was there.
"Q. And could you see what Mrs. Finnegan was doing? A. Trying to get out, struggling there trying to get out.
"Q. What did you do, if anything? A. I tried to open the door.
"Q. What did you do? A. I was pushing it.
"Q. Which way did that door open? A. It opened inward.
"Q. During the time you had been working there hadn’t you found out which way the door opened? A. I knew it opened inward.
"Q. Why were you trying to open it outward? A. When I came to the door and Mrs. Finnegan was there struggling with it, suddenly I became panicky realizing I was trapped, and I started pushing, I guess, at the door, and trying to shield my face from the flames, and Mrs. Finnegan opened the door and got out. ***
"Q. By Mr. Stanbury: Now, why didn’t you try to pull the door inward, yourself? *** The witness: Well, sir, when I did get to the door, Mrs. Finnegan was struggling with it, and then, you know, I forgot, I became panicky and realized I was trapped and started pushing against it.
"Q. By Mr. Stanbury: You just forgot what you were doing? A. Yes, sir.
"Q. You were excited? A. Yes, I was.
"Q. When you were there at the door, what was it like so far as whether it was in a flame or not around there? A. Well, there was flame and I felt hot, and my face was burning, my arms.
"Q. How long were you there? A. It seemed like hours to me.
"Q. It seemed like hours to you? A. Yes, sir. ***
"Q. Mr. Gallagher: Miss Merchut, so far as you know, you and Mrs. Finnegan were the first two people who actually got out of that workroom, isn’t that right? A. Yes, sir.
"Q. And did you, according to your best recollection, and I realize it might not be possible for you to remember exactly, go out first, or did Mrs. Finnegan go out first? A. That is hard to say, sir.
"Q. You cannot tell that? A. I know Mrs. Finnegan opened the door and I went out."
Whether there was a causal connection between the violation of the ordinance requiring that the exit door open outward and respondents’ injuries was a question of fact for the jury. In order that it may be said that there was no causal connection, appellant must show that no inference can reasonably be drawn from the evidence that respondents’ egress from the workroom was impeded or retarded because the door did not open outward. Where different inferences may reasonably be drawn from the same evidence, the decision must be left to the triers of fact. The conclusion of the jury will not be disturbed on appeal if some substantial evidence or reasonable inference lends support thereto. Nichols v. Mitchell, 32 Cal.2d 598, 606, 197 P.2d 550. Want of proximate cause does not exist as a matter of law unless the only reasonable hypothesis is that such want exists; reasonable or sensible men could have drawn that conclusion and none other. Where there are differences that may be drawn, one for and one against, the one against will be followed. Before it can be held as a matter of law that want of proximate cause exists, the evidence must point unerringly to that conclusion. Smith v. Schwartz, 14 Cal.App.2d 160, 164, 57 P.2d 1386; Traylen v. Citraro, 112 Cal.App. 172, 175, 297 P. 649; Rovegno v. San Jose Knights of Columbus Hall Ass’n, 108 Cal.App. 591, 595, 596, 291 P. 848. The rule as to conflict of evidence applies to cases of contradictions in the testimony of a witness. The conflict is all the more for the jury for being intestine. Weintraub v. Soronow, 115 Cal.App. 145, 149, 150, 1 P.2d 28; Farmers’ Bank of Camarillo v. Goodrich, 90 Cal.App. 717, 721, 266 P. 550; Dowd v. Joyce, 85 Cal.App. 377, 380, 259 P. 368. That there were inconsistencies is readily understandable when we consider the emotional instability and physical condition respondents were in when testifying, as disclosed by the exhibits and other evidence, and the stress and strain they obviously were laboring under, together with the normal difficulty of correctly recalling all that occurred while they were in the holocaust. It is not our function to resolve the contradictions.
The fact that appellant was not responsible for starting the fire does not exclude, as being a proximate cause of the injuries sustained by respondents, the fact that the exit door did not open outward. The question is still for the jury. Gerberich v. Southern Cal. Edison Co., 5 Cal.2d 46, 51, 53 P.2d 948; Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 602, 110 P.2d 1044; Fagan v. Union Pacific R. Co., 85 Cal.App.2d 583, 586, 193 P.2d 776; Satterberg v. Pacific Gas & Elec. Co., 58 Cal.App.2d 296, 301, 136 P.2d 43; Lindsey v. De Vaux, 50 Cal.App.2d 445, 454, 123 P.2d 144; Harmon v. M.H. Sherman Co., 29 Cal.App.2d 580, 587, 85 P.2d 205. It is sufficient if a defendant’s negligence be a proximate cause of the injury. Sawdey v. Producers’ Milk Co., 107 Cal.App. 467, 480, 290 P. 684; Goehring v. Rogers, 67 Cal.App. 253, 259, 227 P. 687, opinion of Supreme Court on denial of hearing. Appellant’s negligent act or omission need not be the sole cause of the injury; it is enough that it be a legal cause. McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783. Liability may be imposed upon appellant where its negligence is one of several contributing factors, each of which is a proximate cause of the injury. Westover v. City of Los Angeles, 20 Cal.2d 635, 639, 128 P.2d 350.
The jury reasonably could infer from the evidence that when Mrs. Finnegan reached the door, with Miss Merchut immediately behind her, she reached up and grabbed hold of the knob; that she "tried to open it outward" and could not; that as a result of trying to open the door outward her hand slid down; that her hand slipped off several times; that thereafter, when she finally got hold of the knob, she pulled the door open. It could reasonably infer from her testimony that when she said she got hold of the door knob the first time she pulled the door open, she meant the first time after her hand had slid off from the knob and after it had slid off several times. The jury was warranted in concluding that the violation of the ordinance by appellant was a proximate cause of injuries suffered by respondents.
Appellant’s contentions that respondents, as a matter of law, assumed the risk of their injuries and were guilty of contributory negligence, cannot be upheld. Appellant argues that each respondent had knowledge of the condition of the doors and exists and of the lack of sprinklers, of the dangerous substance with which she worked and that it was inflammable; that some of the other employees smoked in the workroom; and that each participated in the handling, storing, manufacturing and processing of cellulose nitrate, and therefore assumed the risk of their injuries.
The only basis of liability in those cases is the violation of the provision of the ordinance that "Doors serving as exits shall open only in the direction of exit. ***" (Ord. #87,000, sec. 91.3303.) This is a police measure enacted to safeguard health, safety, life and limb. (Ord. 87,000, secs. 12.01, 91.0101.) The law is well established that the doctrine of assumption of risk is not applicable where the injury arises from a violation of an ordinance. The reason for the rule is stated in a concurring opinion by the late Mr. Justice Finlayson in his usual clear and persuasive way in Martello v. Beletich, 59 Cal.App. 533, 211 P. 20. In that case plaintiff sought recovery of damages as the result of a fire. Defendant was charged with keeping an automobile under the roof of a dwelling house in violation of an ordinance prohibiting such storage. Mr. Justice Finlayson said 59 Cal.App. at page 535, 211 P. at page 21: "Even if the trial court’s findings should be construed as meaning that defendants’ sole negligence lay in their violation of the city ordinance, nevertheless plaintiff’s knowledge that defendants were violating this police measure would not be a defense to the action. The duty imposed upon defendants by the ordinance to keep their automobile elsewhere than in a part of the rooming house was not a contractual obligation. It was an obligation imposed upon defendants by a salutary police regulation. The doctrine of the assumption of the risk does not apply. Public policy forbids that the duty which defendants owed to plaintiff to keep their automobile out of the rooming house should be waived by plaintiff’s mere passive quiescence, even though with knowledge of the infraction of the ordinance. In Adams v. Cumberland Inn Co., 117 Tenn. 470, 101 S.W. 428, it was held that one who continues to occupy a room in a hotel for six months with knowledge that there are no fire escapes on the building as required by ordinance does not thereby waive a compliance with the ordinance. The doctrine is there stated as follows: ‘The plaintiff did not waive the duty which the defendant owed to him under the ordinance as an occupant of the hotel, nor assume the risks incident to its occupation in its then condition. The duty of the defendant to place the fire escapes upon its hotel was not a contractual obligation, and the doctrine of assumed risks has no application to this case. The ordinance is a police regulation, made for the protection of human life, and in the interest of that portion of the public occupying hotels and lodging houses. Public policy requires that duties of this kind be discharged, and that all consequences of a failure to do so shall follow. The individuals who are affected cannot suspend the law by waiver or express contract.’ " The rule was followed in Rauch v. Southern California Gas Co., 96 Cal.App. 250, 258, 273 P. 1111, and Friedman v. Pacific Outdoor Adv. Co., 74 Cal.App.2d 946, 952, 170 P.2d 67. See, also, Moore v. Dresden Inv. Co., 162 Wash. 289, 298 P. 465, 473, 77 A.L.R. 1258; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681, L.R.A.1917E, 250; Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764, 767, 235 N.W. 437.
Appellant’s contention that respondents were guilty of contributory negligence as a matter of law (a) under common law principles and (b) by reason of violation of a statute and certain ordinances, is not supported by the record. Contributory negligence is "not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences that may be drawn, one for and one against, the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion." Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826, 829, and cases therein cited; cf. Lindsey v. Vaux, 50 Cal.App.2d 445, 123 P.2d 144; Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 148 P.2d 405.
It would unduly extend this opinion to set forth the provisions of the statute and the ordinances which appellant claims were violated by respondents and which it asserts proximately contributed to respondents’ injuries. Whether or not a violation of a statute or ordinance proximately contributed to an accident, and whether the violation was excusable or justifiable, are questions of fact for the jury except in a case where the court is impelled to say that from the facts reasonable men can draw but one inference and that an inference pointing unerringly to the negligence of the party contributing to his injury. Although a violation of a statute is not excusable under the particular circumstances of the case, liability is also dependent upon proof that a duty was owed to persons in the class of the plaintiff or defendant who is relying upon contributory negligence and that the violation was a proximately contributing cause of the injury. Satterlee v. Orange Glenn School District, 29 Cal.2d 581, 590, 177 P.2d 279.
At the request of appellant the jury was fully instructed with respect to the statute and ordinances claimed to have been violated by respondents and was told that a violation was negligence per se and that if a violation was a proximate cause of respondents’ injuries they could not recover. The evidence was sufficient to warrant the jury in concluding that a proximate cause of the injuries sustained by the respondents, for which damages were awarded, was the violation by appellant of the ordinance requiring that doors serving as exits should open outward and that the claimed negligence of the respondents in violating the ordinances, if any, did not contribute to the injuries for which damages were awarded.
We conclude that the court did not err in denying appellant’s motions for directed verdicts or in denying its motions for judgments notwithstanding the verdict.
The trial judge over objection admitted in evidence a number of ordinances not applicable to existing buildings and ordinances applying only to the use made of the premises. As stated supra, it was held in the Neuber case that none of these ordinances was admissible in evidence as against the owner. Error in the admission of these ordinances was not prejudicial. They were offered and received in evidence solely as the basis from which the court could determine what instructions to give to the jury. They were not read by or to the jury except in instructions. Prejudice, if any, came from reading some of them to the jury in instructions, a subject to be considered later.
Appellant’s next point is that the verdict is without support as, so it says, there is no evidence from which the jury could find, without indulging in speculation and conjecture, what portion of respondents’ injuries were attributable solely to the acts or omissions of appellant. The point is not good. Appellant argues that it is conceded, which it is, that appellant did not cause the fire. It argues that the evidence is without conflict that each of the respondents was on fire before she came near the exit door; and that there is no "clear-cut testimony *** segregating the burns suffered *** solely because of any acts or omissions" of appellant. No attempt was made below to hold appellant liable for all damage suffered by respondents and we cannot say that the jury so held. The jury, at the request of appellant, was instructed that appellant was not responsible for the fact that a fire occurred; that appellant was not legally responsible for any injuries sustained by either respondent as the proximate result of "The violation by Norman Noll of any statute or ordinance or any standard of conduct required to be observed by Norman Noll", and that "If you find from all of the evidence that either plaintiff sustained injuries as a proximate result of negligence, if any, on the part of such plaintiff, or on the part of any person other than the defendants, or either of them, but that such, if any, injuries were aggravated or made more severe by negligence, if any, on the part of the defendants then you cannot included in the amount of your verdict, in the event you find in favor of such plaintiff, any compensation for that part of the injuries which such plaintiff would have sustained in any event regardless of any act or omission of the defendants." In the absence of any showing to the contrary, and none is made, we assume that the jury followed these instructions. 2 Cal.Jur. 852, sec. 499. As respondents say, "The injuries sustained by the plaintiffs were of a ghastly nature and would have supported considerably higher awards."
In Reclamation Dist. No. 833 v. American Farms Co., 209 Cal. 74, at page 80, 285 P. 688, 690, the court stated: "It is well settled that one who contributes to a damage cannot escape liability because his proportional contribution to the result may not be accurately measured. Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 4 P. 1152, 56 Am.Rep. 80." See to the same effect: Switzer v. Yunt, 5 Cal.App.2d 71, 79, 41 P.2d 974; Stephani v. Abbott, 137 Cal.App. 510, 517, 30 P.2d 1033. In City of Oakland v. Pacific Gas & Electric Co., 47 Cal.App.2d 444, 118 P.2d 328, steam escaped damaging plaintiff’s books. No obligation arose on the part of the defendant until it was requested to turn off the steam. Thereafter it delayed and this delay was the basis of its liability but the books had already been damaged and the defendant made the same argument as is made by appellant here. The court rejected it saying, 47 Cal.App.2d at page 450, 118 P.2d at page 331: "One who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured. [Citations.] It is incumbent upon the party alleging injury to prove the amount of damages. Respondent sustained that burden in this case. If the damages proven could be reduced proportionately, that burden rested upon appellant. Vitagraph, Inc., v. Liberty Theatres Co., 197 Cal. 694, 242 P. 709; Andersen v. La Rinconada Country Club, 4 Cal.App.2d 197, 40 P.2d 571. *** As far as ascertainable from the record, there is evidence that appellant contributed substantially to the damage, or at least to the aggravation thereof, and that the amount of compensation awarded was ‘an approximation to accuracy.’ Slater v. Pacific American Oil Co., supra, [ 212 Cal. 648, 300 P. 31]." Appellant’s comment that the court was "misled" in the City of Oakland case is naive and ingenious. See, also, Burford v. Baker, 53 Cal.App.2d 301, 308, 127 P.2d 941. The late Professor Carpenter said: "Where several persons act in concert and damages result from their joint tort, each person is held for the entire damages unless segregation as to causation can be established. Even though persons are not acting in concert, if the result produced by their acts are indivisible, each person is held liable for the whole. Death, burning of a building or the sinking of a boat are such indivisible results. The reason for imposing liability on each for the entire consequence is that there exists no basis for dividing damages and the law is loath to permit an innocent plaintiff to suffer as against a wrong-doing defendant. This liability is imposed where each cause is sufficient in itself as well as where each cause is required to produce the result." 15 So.Cal.L.Rev. 439. See, also Cummings v. Kendall, 41 Cal.App.2d 549, 107 P.2d 282.
In the recent case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1, the same contention was made and some of the same cases cited as appellant makes and cites here. The court held, 33 Cal.2d at page __, 199 P.2d at page 5: "In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can— relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. See, Colonial Ins. Co. v. Industrial Acc. Comm., 29 Cal.2d 79, 172 P.2d 884. Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. California Orange Co. v. Riverside Portland Cement Co., supra, [[[[ 50 Cal.App. 522, 195 P. 694]."
The evidence shows that respondents were trapped by the door in a searing oven. The most severe ultimate damage in the workroom was in the immediate vicinity of the exit door. It reasonably may be inferred from the evidence that the most severe injuries suffered by each respondent were received at the exit door and that those injuries would not have been sustained had the door opened outward. Mrs. Finnegan’s hands were practically destroyed as she used them at the burning door. The evidence was sufficient to enable the jury to find the damages suffered by respondents as a proximate result of the negligence of appellant.
Appellant claims that the court erred in admitting proof of the respondents’ special damages and in instructing the jury thereon. This claim is based on two grounds: First, that there was no evidence from which the jury could determine the portion of medical expense in treating burns caused solely by appellant and the portion incurred in the treatment of burns otherwise caused. This claim is disposed of by what we have said on the previous point. Second, by the allowance of special damages Noll’s Workmen’s Compensation Insurance carrier is permitted to recover damages allegedly proximately contributed to by Noll’s negligence. The argument appears to be that Noll’s insurer stands in Noll’s shoes and that any negligence of Noll is imputed to it as the recipient of any special damages awarded and thus that the judgments should be reduced accordingly. The parties agree that Noll was guilty of the grossest negligence.
Appellant’s contention was squarely repudiated in Pacific Indemnity Co. v. California, etc., Ltd., 29 Cal.App.2d 260, at pages 268, 270, 276, 84 P.2d 313, 318, the court saying: "It therefore appears to us that the legislature never intended to make the lien thus given dependent upon the proof by the lien claimant that the employer was free from negligence or to relieve the third person wrongdoer of any of the responsibility resting upon him. In fact, nowhere does there appear any language in the act indicating that the third party wrongdoer can question the allocation of the judgment between the injured employee and his employer by the court. *** There is no provision anywhere that the lien thus created is subject to any rule that the employer, in order to be entitled to the allowance thereof, shall be free from any negligence or fault proximately causing or contributing to the injury. *** Contributory concurrent negligence of an employer is no defense against the allowance of a lien upon a judgment against a negligent third party." The decision was grounded on section 26 of the Workmen’s Compensation Act as it existed in 1931. The section remained in the Act in substantially the same form until 1937 when it was incorporated in sections 3854 and 3855 of the Labor Code without material change. The sections were in effect at the time of the accidents in question. Limited Mutual etc. Ins. Co. v. Billings, 74 Cal.App.2d 881, 169 P.2d 673, cited by appellant, is not analogous. The point urged here was not involved in that case.
If the law permitted appellant to avoid payment of part of the judgment because Noll did wrong, it would escape responsibility to the extent that Noll and his insurance carrier are compelled by law to assume liability for which appellant is responsible. See, General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 855, 55 S.W.2d 442, 445; Clark v. Chicago, M., St. P. & P.R. Co., 214 Wis. 295, 252 N.W. 685, 689; Otis Elevator Co. v. Miller & Paine, 8 Cir., 240 F. 376, 378. Cf. Dodds v. Stellar, 30 Cal.2d 496, 503, 504, 183 P.2d 658. The right of an injured employee to recover damages against a third party tort-feasor is not defeated or impaired by the fact that his employer may also have been negligent and that the employer’s insurance carrier has a right of indemnity for the amount of compensation payable by him. Appellant is liable for the full amount of damages proximately caused by its negligence, and what disposition is made of the amount recovered as between respondents and Noll’s insurance carrier is no concern of appellant.
The suggestion of appellant that the legislation giving Noll’s insurance carrier rights in respondents’ recovery is special legislation is obviously untenable. Appellant is neither affected nor injured thereby. It is rudimentary that one may not urge the unconstitutionality of a statute unless his rights are adversely affected thereby. County of Ventura v. Southern California Edison Co., 85 Cal.App.2d 529, 539, 193 P.2d 512.
We have concluded that the court committed prejudicial error in its instructions to the jury compelling a reversal of the judgment. Appellant characterizes the instructions as confusing and conflicting. There is merit in the stricture. Eighty-one different instructions were given to the jury. All instructions to be referred to were given at the request of respondents. The court read to the jury sections of Ordinance No. 87,000 which did not apply to existing buildings and sections which applied only to the use which the lessee Noll made of the leased premises.
The jury was instructed that the ordinance provided that a Sub-Group E-1 Occupancy is every room in which explosive materials in lots of more than eight pounds weight are used and rooms used for processing cellulose-nitrate; that such an occupancy must be housed in a Type I building (a "Type I building" was not defined to the jury); that "Every room housing a Sub-group E-1 Occupancy shall be sprinklered"; that "every part of every building shall have two separate exits"; that this latter provision applied to existing buildings housing "Sub-Group E-1 Occupancies"; that "No building or structure or portion thereof shall be used or occupied until a Certificate of Occupancy has been issued therefor." The court said this was "read by way of preface" and that the part "applicable to buildings already existing on January 1, 1943" read: "No existing building or portion thereof shall require a Certificate of Occupancy unless the occupancy housed therein is different from that for which the original permit was issued"; that manufacturing to the extent carried on by Noll was not permitted in the zone in which the leased premises were located. The court told the jury with respect to each separate provision of the ordinance which it had read, that if appellant knowingly let the demised premises for any one of the prohibited purposes or knowingly let the premises while they were not sprinklered, or knowingly let with the intention of permitting the use for the manufacturing purposes carried on by Noll, that the same constituted a violation of the ordinance; and that if appellant knowingly let the premises to be used for a Sub-Group E-1 Occupancy, it was its duty to apply for a Certificate of Occupancy.
After reading these provisions of the ordinance, the court gave the following instructions: (#25) "In reading to you certain ordinances relating to buildings, I have told you what conduct would constitute a violation thereof. I instruct you that the violation, if any, of any of these ordinances by the defendant owner, if such violation proximately caused injury as a result thereof, would constitute negligence unless there is evidence to excuse what would otherwise be a violation." (#33) "The Court has stated to you the provisions of certain ordinances and in each instance has stated what would constitute a violation thereof insofar as such ordinances may, under the facts stated, have been applicable to the defendants. The Court has also stated certain ordinances, and will state others, which were applicable to the plaintiffs. Where a statute or an ordinance prescribes a certain conduct, that is to say, requires the doing of a certain act or forbids the doing of a certain act, the violation of such ordinance or statute amounts to negligence as a matter of law, and neither a Court nor jury could speculate as to whether an ordinarily prudent person would or would not have violated the ordinance or statute." In instruction #25 the jury was told that conduct in violation of the provisions of the ordinance would constitute negligence unless there was evidence showing an excuse for such conduct. In instruction #33 the jury was told that a violation of an ordinance is negligence per se and that they could not "speculate as to whether an ordinarily prudent person would or would not have violated the ordinance."
The following instruction was given: "You are instructed that in order to be held liable for the proximate results of unlawful structural features, if any, of a building, it is not necessary that the owner should itself have created the condition which caused the violation of law. The obligation of the owner with respect to the leasing of buildings which are structurally defective in violation of ordinances may arise when to its knowledge the tenant has changed the structure of said building, or is putting the same to uses for which the same are in violation of ordinances."
The Neuber case, Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 195 P.2d 501, held, as we have stated, that (a) the section of the ordinance requiring that the premises be sprinklered, (b) the provision of the ordinance requiring two separate exits, (c) the zoning ordinance, (d) the provisions of the ordinance requiring a Certificate of Occupancy, did not apply to the facts in the case, and the fact, if it was a fact, that appellant had full knowledge of Noll’s activities and had a right to re-enter and cancel the lease did not give rise to any legal duty on appellant to prevent violations by Noll. None of the provisions of Ordinance No. 87,000 except sections 91.0403(f) and 91.3303 should have been read to the jury.
After the instructions mentioned had been given, the court told the jury that "The Court charges you that neither the violation of the zoning ordinance, if any, as shown by the evidence nor the letting, if any, of a Type III building instead of a Type I building for housing a Sub-group E-1 Occupancy can afford a basis for recovering by either plaintiff against the defendants, or either of them, and it is not claimed by plaintiffs that they are entitled to recover on those grounds". Having charged the jury that a violation of the zoning ordinance was negligence, and that a letting of a Type III building for a Sub-Group E-1 Occupancy was negligence, to then instruct the jury that they could disregard such negligence could not do other than create confusion in a layman’s mind.
After the jury had deliberated about three hours they returned to the courtroom and indicated that they desired a number of instructions reread. The court allowed the jury to separate for the night and told them to write out what they wanted reread or state in writing what they were worried about. The next morning the members of the jury presented several written questions to the court. The questions indicate utmost confusion. Some of them were: (a) "Law regarding sprinkling system," (b) "Type 3 building, is sprinkling system required whether or not inflammable materials are used in manufacturing? Reread regarding floor space," (c) "If blocking of exits is temporary, then it is not a structural change," (d) "Does landlord have to know an exit has been blocked in order to be liable?," (e) "Whose responsibility is it to keep exits from being blocked, such as nailing a prop to a door? Is a landlord liable if he does not do it? Landlord-Tenant. We are confused about a landlord being responsible for results of acts of a tenant. Does it all revert back to: 1. Leasing for illegal purposes; 2. Applying for permit to alter and giving false information to escape detection of illegal occupancy; 3. Failure to apply for certificate of occupancy; 4. Continuing with lease of illegal occupancy when each month after expiration of lease offered opportunity to cancel; all four of which would be proximate cause? Would landlord’s failure to follow through and determine the cause of the first fire involving Mr. Reuter contributory negligence?" (f) "Please again given illustration hypothetical case of landlord and tenant." (No hypothetical case had been stated in the instructions), (g) "By law, does a person have to know what kind of business goes on in his building?"
The questions and the proper method of answering them were considered at great length by the court and counsel in the absence of the jury. The court then reread a number of instructions and gave a number of additional ones. It gave the previous instructions relative to a "Certificate of Occupancy." Among the new instructions given was the following given at the request of respondents over repeated objections: "The plaintiffs charge that the defendants negligently failed to act— that is permitted the premises to be used without adequate exits and without sprinklers and thereby permitted the fire to grow and thereby hampered escape from the fire. It follows, therefore, that if you find that both the plaintiffs and the defendant property owner were negligent in these respects, you must determine, so far as proximate cause is concerned, how far the negligence, if any, of each operated as a proximate cause of the injuries sustained. Without attempting to advise you concerning the facts, and merely as a hypothetical case, I will give you an example. Suppose a person burned in a fire were guilty of contributory negligence with regard to the starting of a fire. Suppose further that another, charged with a duty not to permit premises to be used without an adequate number of exits, proper exits and sprinklers, was negligent in the discharge of that duty. The original fire might be the cause of the whole injury, without participation in the result by the absence of proper exits and sprinklers. In that case the absence of sprinklers and exits would not be a proximate cause of the injury. On the other hand, had the fire occurred in premises provided with sprinklers the fire might be extinguished before reaching serious proportions and before any injury was inflicted. In such case the absence of sprinklers could be a proximate cause either of the entire injury, or of the ultimate extreme of the injuries. Similarly the original fire might be of such a nature that adequate and proper exits might not have prevented injury or the aggravation thereof. In such case an absence of adequate and proper exits would not be a proximate cause of injury. On the other hand a fire could be of such a nature that it could have been escaped altogether if a required number of exits had existed, or could have been escaped before the ultimate injury was inflicted as the case may be. In such case an absence of a required number of exits or of a required type of exit could be a proximate cause of the whole injury, or of the ultimate aggravation thereof, as the case may be. Thus you will see that one factor may be a proximate cause of the original occurrence of a fire or other mishap, and other factors the proximate cause of the injury resulting therefrom. It is your province to view all of the evidence and to determine what factors of action or omission operated as proximate cause or causes in this case and what each, if more than one, proximately caused." Upon its own motion, the court instructed as follows: " ‘Is sprinkling system required whether or not inflammable materials are used in manufacturing?’ Well, anything is an inflammable material that will burn— whether that means inflammable materials similar to or like nitrate cellulose, the answer is ‘no’, sprinklers are not required unless there are inflammable material, or material of that type."
The effect of these instructions was to tell the jury that if it found that appellant was negligent in not providing two exits or was negligent in not installing sprinklers and either was a proximate cause of injuries suffered by respondents they were entitled to recover from appellant. Appellant was not legally responsible for the fact that the premises did not have two exits or for the fact that the premises were not sprinklered. The premises had two exits when leased. Noll blocked one of them by nailing a timber against one door and placing planks over the stairway leading to it. The ordinance requiring that the room be sprinklered applied only to the use made of the building and not to the building as a building. These new instructions magnified and aggravated the previous ones with respect to providing two exits and installing sprinklers.
One may as well attempt to square a circle as to essay to harmonize these instructions. It is impossible to say whether the jury predicated liability upon the absence of two exits (for which appellant was not liable), or upon the fact that the workroom was not sprinklered (for which appellant was not liable), or upon the fact that the exit door did not open outward (for which appellant was liable). The rule is settled that where conflicting instructions are given, the verdict of the jury cannot be sustained and a reversal of the judgment is impelled unless the court can say that a miscarriage of justice has not occurred. Westberg v. Willde, 14 Cal.2d 360, 369, 371, 94 P.2d 590; Wells v. Lloyd, 21 Cal.2d 452, 458, 132 P.2d 471; Wright v. Sniffin, 80 Cal.App.2d 358, 363-366, 181 P.2d 675, and cases there cited. In Wright v. Sniffin, supra, the court observed, 80 Cal.App.2d at pages 363, 364, 181 P.2d at page 678: "The rule is well established that when the instructions are irreconcilably conflicting, and it ‘cannot be ascertained upon what theory the verdict was returned,’ they become erroneous and prejudicial, and therefore require a reversal of the judgment on that account. Starr v. Los Angeles Ry. Corp., 187 Cal. 270, 280, 201 P. 599, 603. In the case last cited a judgment for damages for injuries sustained by plaintiff was reversed for the giving of conflicting instructions which prevented the court from determining the theory upon which the verdict was returned. The court said: ‘*** The instructions are to be construed together, but where the instructions are flatly contradictory, as is the case where the jury is instructed upon a specific state of facts to bring in a verdict in favor of the plaintiff or defendant and is elsewhere instructed in general terms not to do so, the instructions must be held to be conflicting and prejudicial, because it cannot be ascertained upon what theory the verdict was returned. *** Under this condition it cannot be said that there is no miscarriage of justice when it cannot be ascertained from the record upon what theory the jury was authorized by the instructions of the court to render its verdict. *** Because of the foregoing erroneous instructions, it will be necessary to reverse the case.’ "
The effect of the erroneous instructions was such as to cut off substantial defenses on the merits, i.e., (a) that liability could not be predicated on ordinances not applicable to existing buildings; (b) that liability could not be predicated on ordinances applicable solely to the use which the lessee made of the leased premises; and (c) that liability could not be predicated on the failure to make application for and obtain a "Certificate of Occupancy." An erroneous instruction which cuts off a substantial defense is prejudicial. Wallis v. Southern P. Co., 184 Cal. 662, 672, 195 P. 408, 15 A.L.R. 117; Keller v. Pacific Tel. & Tel. Co., 2 Cal.App.2d 513, 522, 526, 527, 38 P.2d 182; Dotson v. International Life Ins. Co., 89 Cal.App. 653, 657, 265 P. 357. After an examination of the entire record, we are of the opinion that the errors in the giving of instructions have resulted in a miscarriage of justice.
Judgments reversed.
SHINN. P.J., and WOOD, J., concur.