Opinion
Page __
__ Cal.App.2d __ 234 P.2d 1025 KNELL et al. v. MORRIS et al. Civ. 18157. California Court of Appeals, Second District, Third Division Aug. 20, 1951.Hearing Granted Oct. 18, 1951.
Subsequent opinion 247 P.2d 352.
Rehearing Denied Sept. 6, 1951.
[234 P.2d 1026] Victor Ford Collins and Arnold M. Cannan, Los Angeles, for appellants.
Desser, Rau, Christensen & Hoffman and Wm. Christensen, all of Los Angeles, for respondent Mac Mar, Inc.
DeForrest Home, Los Angeles, for respondent Morris.
VALLEE, Justice.
Appeal by plaintiffs from a minute order granting the motion of defendants for a nonsuit in an action for damages to property caused by water from a leaking heater.
Stated in the light most favorable to plaintiffs, indulging in all reasonable inferences in their favor, and disregarding all conflicting and contradictory evidence, the evidence is summarized as follows:
Plaintiffs owned and operated a retail luggage business on the mezzanine, ground floor, and basement at 756 South Broadway in Los Angeles. Defendant Mac Mar, Inc., owned and operated the Marinello Salon and Beauty Culture establishment on the floor immediately above. Defendant Morris, a master plumber, was engaged in the plumbing business in Los Angeles.
Mac Mar maintained a cast-iron water heater on the second floor. The heater was an old one which had been installed by Morris for Mac Mar on February 22, 1948. On April 28, 1948, about 5:00 p. m., Spellman, an officer of Mac Mar, heard a slight hissing noise coming from the heater, saw that it was leaking, turned the water off, and telephoned Morris to come and repair it. Spellman then left the place. Morris sent Rule, one of his employees, to repair the heater. Rule told Morris the next day that he had repaired it by using a preparation to seal holes and cracks, and that when he finished, he turned the water on.
The next morning, about 7:00 o'clock, an employee of Mac Mar who opened the establishment, found the heater leaking and called the fire department. The ceilings of the mezzanine and ground floor were coming down due to the weight of water. The rugs on the ground floor were soaking wet and considerable luggage had been damaged. About 9:30 a. m. Morris examined the heater; several sections were cracked; the cracks were from one to four inches long; he took the heater out and installed a new one. It may be inferred reasonably that the heater was worn out.
Plaintiffs invoke the doctrine of res ipsa loquitur against defendants Morris and Mac Mar, and say that the inference of negligence which arises on application of the doctrine required a denial of the motions for nonsuit. They also maintain that aside from the application of the doctrine the [234 P.2d 1027] evidence was sufficient to warrant an inference that Morris was negligent. Morris says there was no evidence that he was negligent and that the doctrine is not applicable to him. Mac Mar says the doctrine is not applicable to it because plaintiffs 'proved that it [the heater] was under the joint control of defendant Macmar, Inc. and defendant Morris.'
We are of the opinion that the court erred in granting the motions for nonsuit. On such motion the law compels that negligence be inferred if it is reasonably possible to do so. Williamson v. Pacific Greyhound Lines, 78 Cal.App.2d 482, 485, 177 P.2d 977.
The latest decision of the Supreme Court stating the conditions of the doctrine of res ipsa loquitur is Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574, 577. In that opinion, penned by Mr. Justice Schauer, the following was quoted from Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258, with approval: "The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' (Prosser, Torts, p. 295.)" Ordinarily where injuries are caused by water escaping from an upper floor and the necessary conditions of the doctrine are present, an inference of negligence arises. The flooding of a lower floor by water escaping from an upper floor through the ceiling is an accident that does not ordinarily occur in the absence of someone's negligence, and if it is shown to have been caused by an agency or an instrumentality within the exclusive control of the defendant and was not due to any voluntary action or contribution on the part of the plaintiff, an inference that the defendant was negligent arises. Schon v. James, La.App., 28 So.2d 531, 533; Washington v. Ravel, Tex.Civ.App., 14 S.W.2d 367, 368; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 171, 79 A.L.R. 40; Ornstein & Rice Neckwear Co. v. Hirshfield Skirt Co., 198 Mo.App. 140, 199 S.W. 453, 455-457; Kahn v. Triest-Rosenberg Cap. Co., 139 Cal. 340, 342, 73 P. 164; cf. Trouser Corporation v. Goodman & Theise, 3 Cir., 153 F.2d 284. It is manifest that the condition that the accident be of a kind which ordinarily does not occur in the absence of someone's negligence was met by plaintiffs' evidence; as was the condition that the accident was not due to any voluntary action or contribution on the part of plaintiff.
Dean Prosser comments that the statement that the plaintiff must prove the agency or instrumentality which caused the accident was under the defendant's exclusive control is misleading. He says: 'There are a great many situations in which the defendant's responsibility is apparent even though the 'instrumentality' is in the control of another. This is, for course, obvious where the other is the defendant's agent, or the defendant is otherwise responsible for his conduct, or where the two are engaged in a joint enterprise so that each is responsible for what is done by the other. It is equally clear where the defendant is under a duty which he cannot delegate, as in the case of the obligation of the owner of premises to the public, or that of a contractor to the employees of a subcontractor, [234 P.2d 1028] or the responsibility of a surgeon for the nurse who counts the sponges, or the obligation of one who supplies a chattel to inspect it even where he acquires it from someone else. There are other cases, however, in which it is clear that 'control' is simply the wrong word. The plaintiff who is riding a horse is in exclusive control of it; but when the saddle slips off, the inference is still that it was the fault of the defendant who put it on. The man operating a handcar is in control of it; but when the handle breaks, the conclusion is that only the defendant who supplied the handcar was negligent. The plaintiff's possession and exclusive control of a loaf of bread does not prevent the inference that the glass inside of it came from the defendant's bakery; and when a bottle explodes in the purchaser's hands, we may still infer, when all other probable causes are eliminated, that it was due to the negligence of the bottling company. ' (Prosser, Res Ipsa Loquitur in California; 37 Cal.L.Rev. 183, 199-200.)
'Weddle v. Loges (1942) 52 Cal.App.2d 115, 125 P.2d 914 (towed automobile hit a tree).'
'Price v. McDonald (1935) 7 Cal.App.2d 77, 45 P.2d 425 (car owner and driver).'
'Koskela v. Albion Lumber Co. (1914) 25 Cal.App. 12, 142 P. 851 (stevedore injured when wire cable on loading apparatus gave way. 'It was also necessary that both parties should assist in the operation of the appliances, and they were jointly operated by and for the joint benefit of both defendants).''
'Du Val v. Boos Bros. Cafeteria Co. (1919) 45 Cal.App. 377, 187 P. 767. Cf. Windas v. Galston & Sutton Theatres (1939) 35 Cal.App.2d 533, 96 P.2d 170 (fall of plaster from theatre ceiling; contract of owner to repair does not relieve lessee of duty to public invited to enter); Pandjiris v. Oliver Cadillac Co. (1936) 339 Mo. 711, 98 S.W.2d 969 (fall of brick from window during 'open house' held by defendant, responsible to public for conduct of its guests); Smith v. Claude Neon Lights (1933) 110 N.J.L. 326, 164 A. 423 (fall of sign from building).'
'Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 185 P.2d 94. Cf. Van Horn v. Pacific Refining & Roofing Co. (1915) 27 Cal.App 105, 148 P. 951 (possibility that cap of steam pipe on defendant's premises might have been loosened by stranger).'
'Ales v. Ryan (1936) 8 Cal.2d 82, 64 P.2d 409; Armstrong v. Wallace (1935) 8 Cal.App.2d 429, 47 P.2d 470. Cf. * * * Ybarra v. Spangard, supra, * * * [25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258].
'Gross v. Fox Ritz Theatre Corp. (1936) 12 Cal.App.2d 255, 55 P.2d 227; Hebert v. Byron Jackson Iron Works (1918) 39 Cal.App. 209, 178 P. 850.'
'Rafter v. Dubrock's Riding Academy (1946) 75 Cal.App.2d 621, 171 P.2d 459.'
'Metz v. Southern Pacific Co. (1942) 51 Cal.App.2d 260, 124 P.2d 670; Ronconi v. Northwestern Pacific R. Co. (1917) 35 Cal.App. 560, 170 P. 635.'
'Dryden v. Continental Baking Co. (1938) 11 Cal.2d 33, 77 P.2d 333. Cf. Liggett & Myers Tobacco Co. v. De Lape (9 Cir.1940) 109 F.2d 598 (cigarette flared up).'
'Gordon v. Aztec Brewing Co., [33 Cal.2d 514, 203 P.2d 522]; Escola v. Coca-Cola Bottling Co., [24 Cal.2d 453, 150 P.2d 436]; Hoffing v. Coca-Cola Bottling Co., [87 Cal.App.2d 371, 197 P.2d 56].'
In Raber v. Tumin, supra, 36 Cal.2d 654, 226 P.2d 574, an invitee in a store showroom was struck on the head by a falling ladder. It was held that exclusive control of the ladder by Tumin and his employee was sufficiently shown to warrant application of the doctrine of res ipsa loquitur by evidence that Tumin entered into possession of the premises four hours before the accident and his employee had commenced work therein about three days before; and that from such evidence it could be inferred that both Tumin and his employee knew, or by the exercise of reasonable care could have discovered, the floor was slippery and that the ladder was standing upright thereon. The court declared, 36 Cal.2d at page 660, 226 P.2d at page 577: 'The fact that plaintiff is by the very circumstances under which he was injured unable to specifically indentify, as between master and servant, the actively negligent person does not deprive him of the aid of the doctrine of res ipsa loquitur. (See Ybarra v. Spangard (1944), supra, 25 Cal.2d 486, 490, 154 P.2d 687 [162 A.L.R. 1258]; Cavero v. Franklin, etc., Benevolent Soc. (1950) [ante], 36 Cal.2d pp. 301, 311, 223 P.2d 471.)'
In Biondini v. Amship Corp., 81 Cal.App.2d 751, 185 P.2d 94, Amship had a contract to repair a ship. Harbor Ship had a subcontract from Amship to remove the debris from the ship. Fletcher had a subcontract from Harbor Ship to carry the debris away. In removing debris from the ship the driver of Fletcher's truck fell through a scaffold constructed by Amship. In holding the doctrine of res ipsa loquitur applicable to both Amship and Harbor Ship, the court said, 81 Cal.App.2d at page 767, 185 P.2d at page 104: 'Harbor Ship argues that the doctrine is not applicable to it because the scaffold was not within its 'exclusive' management and control. [234 P.2d 1029] The law does not prohibit the application of the doctrine against two or more defendants where there is joint control. Price v. McDonald, 7 Cal.App.2d 77, 45 P.2d 425; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. It was for the jury to say whether either or both of these defendants had 'control' of the scaffold, and if it should find that either or both had such control it should be instructed that the doctrine under discussion is applicable to that defendant or defendants.'
The number or relationship of the defendants alone does not determine whether the doctrine of res ipsa loquitur applies. Ybarra v. Spangard, 25 Cal.2d 486, 491, 154 P.2d 687, 162 A.L.R. 1258.
The case against defendant Morris
Morris was an independent contractor. He was engaged to produce a certain result by means and in a manner of his choosing. He was left to produce the desired result in his own way. Mac Mar had no right of control as to the means or manner of performance of his work. Anderson v. Badger, 84 Cal.App.2d 736, 741, 191 P.2d 768. As a general rule, an independent contractor is liable for injuries caused by his own negligence in the performance of his work. In Johnston v. Long, 56 Cal.App.2d 834, at page 837, 133 P.2d 409, at page 410, this court stated: 'The general rule with respect to the liability of an independent contractor for damages to third persons caused by defective construction is that, after his work is completed and accepted by the owner, he is not liable to a third person for damages suffered by reason of the condition of the work even though he was negligent in carrying out the contract. 45 C. J., Negligence, § 320, p. 884; Kolburn v. P. J. Walker Co., 1940, 38 Cal.App.2d 545, 550, 101 P.2d 747. An exception to the general rule is that the contractor is liable if the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, provided the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know of the dangerous condition or defect and would not discover it by reasonable inspection. 45 C. J., Negligence, § 320, p. 884; Stultz v. Benson Lumber Co., 1936, 6 Cal.2d 688, 59 P.2d 100.' See, also, Hall v. Barber Door Co., 218 Cal. 412, 419, 23 P.2d 279.
The following inferences may reasonably be drawn from the evidence: that if Morris had exercised ordinary care the heater would not have leaked during the night immediately following his attempt to repair it; that the work had not been turned over to Mac Mar after it was done and that Mac Mar had not accepted it; that the work was so negligently done as to be imminently dangerous to third persons and that Morris knew, or should have known, that fact, and that Mac Mar did not know of the dangerous or defective condition, and would not have discovered it by reasonable inspection.
The doctrine of res ipsa loquitur was applicable against Morris. He undertook to repair the heater. He had control during the time the work was being performed. Whether he had exclusive control was a question of fact. He was in a position to have disturbed the heater, to have induced the cracks, and to have caused the accident. It is a reasonable and logical inference from the evidence that if Morris had used due care and taken proper precautions in repairing the heater, it would not have leaked with the result that followed. The heater was in control of Morris for the purpose for which he was on Mac Mar's premises. The accident was such as in the ordinary course of things does not happen if those who are doing the work use reasonable care. Unexplained, the facts warrant an inference of negligence.
The case against defendant Mac Mar
It was the duty of defendant Mac Mar to exericise ordinary care to keep the heater in a reasonably safe condition so that water should not be permitted to escape and cause injury to the property of the occupants of the floor below. This duty was not limited to conditions actually known to be dangerous, but extended also to conditions which might have been found [234 P.2d 1030] dangerous by the exercise of reasonable care. Raber v. Tumin, 36 Cal.2d 654, 658, 226 P.2d 574; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 171, 79 A.L.R. 40; 65 C.J.S., Negligence, § 84, page 592.
The fact that plaintiffs are unable, as between the owner and the independent contractor, to 'specifically identify' the 'actively negligent persons,' should not deprive them of the application of the doctrine of res ipsa loquitur. Raber v. Tumin, supra, 36 Cal.2d 654, 660, 226 P.2d 574; Biondini v. Amship Corp., supra, 81 Cal.App.2d 751, 767, 185 P.2d 94; Cavero v. Franklin etc. Benevolent Soc., 36 Cal.2d 301, 311, 223 P.2d 471; Ybarra v. Spangard, 25 Cal.2d 486, 490, 154 P.2d 687, 162 A.L.R. 1258; Price v. McDonald, 7 Cal.App.2d 77, 45 P.2d 425. Ordinarily, one who engages in independent contractor to make repairs is not liable for the negligence of the latter while engaged in making the repairs and while in control of the instrumentality causing the injuries. Bennett v. Truebody, 66 Cal. 509, 6 P. 329; Hedge v. Williams, 131 Cal. 455, 63 P. 721, 64 P. 106; Louthan v. Hewes, 138 Cal. 116, 118, 70 P. 1065; Johnson v. Helbing, 6 Cal.App. 424, 92 P. 360; Biddlecomb v. Haydon, 4 Cal.App.2d 361, 365, 40 P.2d 873; Barrabee v. Crescenta Mutual Water Co., 88 Cal.App.2d 192, 196, 198 P.2d 558. The fact that Mac Mar engaged and independent contractor to make repairs does not, under the facts here, relieve Mac Mar of responsibility for its negligence. Concededly, the heater was within the control of Mac Mar prior to the time the independent contractor was engaged to repair it. It may have been in such condition that it was beyond repair. Whether Mac Mar knew, or by the exercise of ordinary care should have known, of such condition, if it existed, and whether, under such circumstances, it exercised ordinary care in merely engaging an independent contractor to repair it, are questions of fact. It may reasonably be inferred from the evidence that the leakage which caused the injury occurred either during the time the repairs were being made or thereafter. If it occurred thereafter it may be inferred reasonably that it took place at a time when Mac Mar was in exclusive control. The accident occurred either while the heater was in the control of the independent contractor, or in the control of Mac Mar, or in the control of both of them. It was for the trier of fact to say whether either or both had control. It was error to determine the question on motion for nonsuit without explanation from the defendants.
The argument that the doctrine is inapplicable because, so it is said, plaintiffs know as much about the cause of the injury--the fact that the heater leaked--as defendants do, is fallacious. Plaintiffs know that their property was damaged because the heater leaked, but they have no way of knowing how or why the heater leaked. It is not the plaintiffs' equal knowledge of the fact of injury that bars the application of the doctrine of res ipsa loquitur, but equal knowledge with defendants of the cause of the injury.
The evidence and the reasonable inferences therefrom present issues of fact which must be resolved by findings and a judgment rather than by an order of nonsuit.
Biddlecomb v. Haydon, 4 Cal.App.2d 361, 40 P.2d 873, and Peters v. Pioneer Laundry Co., 32 Cal.App.2d 494, 90 P.2d 146, relied on by Mac Mar, are not in point on their facts. In those cases the accident happened at a time when the agency was within the exclusive control of an independent contractor, and the evidence of the plaintiff showed that it was brought about by his act and not by the act of the defendant owner.
Reversed.
SHINN, P. J., and PARKER WOOD, J., concur.