Opinion
6-26-1956
Ada D. RIPPEE and Paul Marvin Rippee, Plaintiffs and Respondents, v. Edward H. LAKIN, doing business as E. Lakin Finance Co., Lane W. Crossley, Yvonne Constance Crossley, G. C. Bliss, Frances Geraldine Bliss, William B. Pettis, Mrs. William B. Pettis, Carl W. Holland, and Edgar Davis, Defendants, Edward H. Lakin, Appellant.* Civ. 21416.
Ball, Hunt & Hart, Long Beach, by Clark Heggeness, Long Beach, for appellant. N. E. Youngblood, Marvin Gross, Beverly Hills, for respondents.
Ada D. RIPPEE and Paul Marvin Rippee, Plaintiffs and Respondents,
v.
Edward H. LAKIN, doing business as E. Lakin Finance Co., Lane W. Crossley, Yvonne Constance Crossley, G. C. Bliss, Frances Geraldine Bliss, William B. Pettis, Mrs. William B. Pettis, Carl W. Holland, and Edgar Davis, Defendants,
Edward H. Lakin, Appellant.*
June 26, 1956.
Hearing Granted Aug. 21, 1956.
N. E. Youngblood, Marvin Gross, Beverly Hills, for respondents.
FOURT, Justice.
This is an appeal by defendant Edward H. Lakin from an order granting a new trial.
Ada D. Rippee and Paul Marvin Rippee brought an action for damages for the wrongful death of Paul Martin Rippee, husband and father respectively of the plaintiffs, who died as a result of an explosion apparently centered around a butane heater in a rented trailer. Named as defendants were Edward H. Lakin, doing business as Ed Lakin Finance Company, Lane W. Crossley, Yvonne Constance Crossley, G. C. Bliss, Frances Geraldine Bliss, William B. Pettis, Mrs. William B. Pettis, Carl W. Holland, and Edgar Davis. A jury trial was had and a verdict rendered in favor of all defendants, after which plaintiffs moved for a judgment notwithstanding the verdict, and in the event such motion was denied, that plaintiffs be granted a new trial. The motion for a judgment notwithstanding the verdict was denied. The motion for a new trial was granted as to the defendants G. C. Bliss and Edward H. Lakin on the ground of insufficiency of the evidence.
Lakin has appealed upon the ground that the court abused its discretion in that there was no substantial evidence which would support a judgment for the plaintiffs, and further that the plaintiffs' evidence established the contributory negligence of the deceased as a matter of law.
A fair resume of the facts of the case is as follows: On April 9, 1953, decedent Paul Martin Rippee, an oil well driller from Santa Barbara, left for Los Angeles county to work for the Santa Fe Drilling Company, and that was the last time Ada Rippee saw her husband before the explosion. At about 5:00 o'clock p. m. on the same date, Mr. Rippee requested motel space at the Pettis Motel and Trailer Court which was owned by Lane W. Crossley and Yvonne Constance Crossley and managed by Frances G. Bliss, with the occasional assistance of her husband, G. C. Bliss, who also supervised Edgar D. Davis, an employee of Pettis Motel and Trailer Court. The decedent was informed by Mrs. Bliss that there were no cabins available and thereupon Mr. Bliss offered to rent to him the trailer in question. The trailer was looked at by the decedent and accepted and rented by him at the rate of $10 per week plus $1.40 for a tank of butane.
Mr. Bliss instructed and helped Davis in connecting the butane tank which supplied fuel for a heater and a cook stove in the trailer. Bliss told Davis to check the lines leading from the tank, and to check the stoves. Davis tested the stove but not the heater, since he was unaware that it was a 'conversion job' and believed it was what it appeared to be, namely, a coal oil heater. Davis tested the main line that went to the stove and the burners with a match.
Shortly thereafter, decedent moved into the trailer. No information or instructions regarding the operation of the stove or heater were given him. At about 5:00 o'clock a. m., April 10, 1953, there was an explosion. Timothy Cavanaugh, a tenant of the establishment, saw the decedent with his clothes on fire and helped put the flames out, and thereafter Cavanaugh went to the trailer and turned the valve on the outside butane tank to an 'off' position. Cavanaugh testified that the deceased was 'incoherent and not understandable' at that time. Davis testified that he summoned Mr. and Mrs. Bliss, returned to the trailer and heard decedent say, 'there was a gas leak'.
James H. Collings, Jr., a deputy sheriff, arrived on the scene to find decedent in a severe state of shock. The officer wrapped him in blankets and placed him in his car. According to the officer, the decedent at that time was in a 'high state of shock' and too badly injured to answer any questions. The officer further testified that upon examining the heater on the inside of the trailer, he found 'that the butane line led directly into this kerosene stove with no burner on it', and that the tube was either bent or broken.
When Mrs. Bliss arrived at the scene she saw decedent in the car wrapped in blankets. The officer testified that she told him that 'the victim * * * had stated to her that he had thought he had smelled gas escaping from the heater, and upon attempting to light same, the explosion occurred.' Mrs. Bliss, in her deposition which was read into the record, stated that she had no conversation with decedent and heard none between the decedent and anyone else.
George Hodges, fire captain, Los Angeles county, arrived at the scene about 5:44 a. m. and found smoldering spots, but no fire. He found a heavy coating of ice or frost on the butane tank outside the trailer indicating that the butane had passed out of the tank rapidly within the last one and one-half hours. The valve on the tank had already been closed by someone. Inside the trailer he discovered the valve on the heater in an 'open position'; the valve on the cook stove was in a 'closed position'. He checked the appliances and the visible fuel lines from the tank to the appliances and they all appeared to be in good order. He further explained in his testimony that the heater was lit in the conventional manner. He was qualified as an expert and when asked his opinion as to the cause of the explosion, said, 'Now, what I think happened: The valve was in an open position on the heater. The gas passed from the tank to the line out the burner, which was not on. It poured gas into the trailer. And when a match was struck, presumably by the victim, a fire occurred and an explosion'.
The trailer was formerly owned by Ella Jean Adams who testified that she sold it to Lakin or Holland or both in July, 1952. Lakin apparently financed Holland's purchase of the trailer and purchased her sales contract. She testified, in substance, that the trailer was equipped with a cook stove and a heater both using butane gas from a tank located outside of the trailer. The heater was near the door and was vented. There were valves on the appliances to regulate the flow of gas into the appliances. There was a small door at the base of the heater which had to be opened to turn the valve on the heater. She described and demonstrated how the heater was lit. She stated that she had used both appliances for four years without any difficulty.
There was a conflict in the evidence as to whether Lakin was the true owner or simply the legal owner.
There was a prior butane gas explosion in the trailer, the origin of which was unknown. Lakin knew of the previous explosion and had sent the trailer to a company to have the explosion damage repaired. On April 8, 1953, the day before the trailer was rented to the decedent, Lakin instructed the repair company to release the trailer to Mr. Bliss. Bliss stated that he was directed by Lakin to place the trailer on the Pettis Motel and Trailer Court premises temporarily and to rent it or sell it. Lakin denied that he gave Bliss any authority to rent the trailer. Bliss was not told of the prior explosion and had no knowledge of it, nor of any possible defect in the appliances. Bliss did not inform the decedent that the apparent coal oil heater had been converted to a butane heater. There were no changes made on the heater, the stove or the lines from the time Bliss picked the trailer up until it was rented to the decedent. After the explosion Lakin directed Bliss and Davis to repair the trailer.
Appellant contends, and we believe properly so that there was no evidence presented to the effect that the trailer was knowingly rented with any latent defect. The plaintiffs alleged that the deceased rented the trailer and that its possession was surrendered to him. The relationship of the parties was therefore that of lessor and lessee. The plaintiffs, to recover, must show that the trailer was rented with a defect which was known and concealed by the lessor and not discoverable by a reasonable inspection of the tenant. It was appropriately said in the case of Nelson v. Myers, 94 Cal.App. 66, at pages 73-76, 270 P. 719, at page 722, in an action for wrongful death brought about by the death of a tenant as a result of asphyxiation caused by a defective automatic gas heater: '* * * the liability of the respondent has not been shown, and that the motion for nonsuit should have been granted. * * * * * * '* * * He was employed regularly as an oil well driller, and must be presumed to have been familiar with the danger of noxious fumes incident to the improper combustion of gas. Neither the gas heater nor the alleged disconnected vent pipe may be deemed to be latent or hidden dangers under the facts of this case. The condition of both was open and visible to any occupant of the bathroom. * * * * * * * * * '* * * It is the settled law of this state that, in the absence of fraud or deceit on the part of the landlord in concealing latent defects of which he has knowledge, and in the absence of a direct covenant to make repairs, the lessor is not liable to the tenant or others for injuries resulting from defects in the rented premises. * * * * * * * * * 'A landlord is not an insurer of his demised premises against damages or injuries. He becomes liable for injuries or damages only when his conduct amounts to fraud or deceit, such as a failure to disclose the existence of hidden defects of which he has knowledge, and which may not be discovered by the use of reasonable diligence on the part of the lessee. The doctrine of caveat emptor ordinarily applies to the leasing of premises. It is the duty of the renter to exercise reasonable care and diligence in inspecting the premises which he proposes to rent. Even when the landlord has covenanted to repair defects, or is guilty of constructive fraud in concealing hidden defects of which he has knowledge, the lessee may not recover damages when his own negligence proximately contributed to the injuries sustained.'
In the case of Neuber v. Royal Realty Co., 86 Cal.App.2d 596, at pages 616 and 630, 195 P.2d 501, at page 514, the court said: '* * * when a lessee rents 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. In this view the trial court is supported by a long, uniform and unbroken line of decisions in this state. * * * * * * * * * 'It is not only necessary to prove a defendant's negligence, but it is a basic element in every right of recovery that a defendant's negligence must contribute to the injury--must be the proximate cause of the injury. Unless in addition to proving defendant's negligence, such negligence is in some way fastened to the injury, then a case is not made out. And before a defendant can be held to answer in damages for the injuries suffered by a plaintiff it is incumbent upon the latter to assume the burden of proof and show by a preponderance of the defendant was the negligence of the defendant was the proximate cause of such injuries. Where the facts go no further than to establish a possibility that defendant's negligence was the proximate cause of the injury, a plaintiff can not recover. * * *'
And in Daulton v. Williams, 81 Cal.App.2d 70, at pages 73 and 75, 183 P.2d 325, at page 327, it was stated: 'Not having concealed any defective condition from his tenants or positively misrepresented the condition of his tenement, a landlord is not liable to his tenant for injuries due to a defective condition or faulty construction. * * * Also, before a landlord can be liable for the existence of such defect it must be proved that he actually knew of it. * * * The landlord is bound to disclose such concealed defects as are known to him at the date of the letting and then only if they are such as would not be discoverable by a reasonable inspection. * * * * * * 'A landlord is not an insurer of his premises against injuries to his tenant unless he fails to disclose the existence of hidden defects of which he had actual knowledge. Moreover, the tenant must himself use reasonable care and diligence to inspect the property in which he is to reside. His failure to exercise such care defeats his claims for injuries based upon the alleged negligence of the landlord. Nelson v. Myers, 94 Cal.App. 66, 75, 270 P. 719. The landlord is not liable because of the presence of the dangerous condition, but solely by reason of his concealment thereof. * * * 'There is no duty on the landlord to inspect his tenement with the object of locating latent defects or of repairing them. * * *'
The evidence in this case produced by the plaintiffs themselves demonstrates that the lines were in good order; that the valve to the heater was opened by the decedent and that sometime later he lit the match thereby bringing about the explosion.
The plaintiffs have suggested that the trailer was personal property and that therefore the appellant owed a duty to the decedent different from the duty owed by a landlord to a tenant. In Forrester v. Hoover Hotel & Inv. Co., 87 Cal.App.2d 226, 231-232, 196 P.2d 825, 828, the court said: 'We are persuaded that to hold the landlord liable upon warranty for any injury resulting from a latent defect in the equipment or furnishings leased with a furnished apartment would be to make the landlord virtually an insurer of the safety of the tenant. We are satisfied that the correct rule, supported in this state by a long line of decisions, is that a landlord is not liable to the tenant for injuries due to a defective condition or faulty construction of the demised premises, in the absence of fraud, concealment or covenant in the lease'.
In the case of Wilson v. Ray 100 Cal.App.2d 299, 223 P.2d 313, a guest of a tenant in a furnished apartment was injured when an old gas stove exploded. An action was brought for damages against the landlord and the claim was made that the ordinary principles of liability did not apply because the defective equipment was personal property. Previous to the explosion the landlord had used the stove and had trouble with it, and she knew that the holes in the burner should be enlarged. The court said at pages 303-304 of 100 Cal.App.2d, at page 315 of 223 P.2d: 'Fourth: Were defendants liable to plaintiff for the defective condition of the stove because it was defective when the apartment was leased to Mr. and Mrs. Muti? 'This question must likewise be answered in the negative. It is the general rule that a landlord is not liable to a tenant or his invitees for defective condition or faulty construction in property leased, in the absence of fraud, concealment or a covenant in the lease. (Forrester v. Hoover Hotel & Inv. Co., 87 Cal.App.2d 226, 232, 196 P.2d 825; Shotwell v. Bloom, 60 Cal.App.2d 303, 309, 140 P.2d 728.) It is likewise settled that if a plaintiff is seeking to recover against a lessor on the theory that he has a cause of action falling within the exception to the general rule, such plaintiff must plead and prove the exception to the general rule under which he claims a right against the lessor. (See the cases cited in 21 Cal.Jur. (1925) p. 60, Pleading, sec. 36. Cf. Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 745, 107 P.2d 501.) In the present case there is no pleading or proof that defendants covenanted in their lease that the stove in question was not defective, that they perpetrated any fraud upon the lessee or concealed any material facts from the lessee.'
Although at the trial of the case the plaintiffs requested no instructions on res ipsa loquitur, and none were given, they now contend that they could establish the defect or negligence by means of that doctrine. We are of the opinion that the doctrine of res ipsa loquitur does not apply in the case at hand. The trailer was under the exclusive control of the decedent; the plaintiffs' own testimony showed that a cause of the explosion was the open valve on the heater; the explosion was not an event that ordinarily occurs only by reason of the negligence of the parties sought to be charged and the defendants had no greater knowledge of the events leading up to the explosion.
In Wilson v. Ray, supra, the court held that the doctrine did not apply, and among other things, said at page 304 of 100 Cal.App.2d, at page 316 of 223 P.2d: 'Sixth: Is the doctrine of res ipsa loquitur applicable to the facts of the instant case? 'This final question must too be answered in the negative. It is the general rule that the doctrine of res ipsa loquitur is inapplicable in the absence of a showing that the instrumentality causing the injury was within the exclusive control of the defendant. [Citing cases.] In the present case plaintiff failed to offer any evidence proving or tending to prove that the instrumentality which caused the accident was within the exclusive control of defendants or either of them. On the contrary the evidence disclosed that the gas range was within the control of the lessees of the apartment and not of defendants. Therefore the doctrine of res ipsa loquitur was inapplicable in the present case.'
In the case of Shaha v. Frey, 129 Cal.App.2d 509, 514, 277 P.2d 428, 431, where there was an explosion while the defendant was filling a butane tank, the court said as to res ispa loquitur the following: '* * * the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant; that it must appear that the defendant had sufficient control or connection with the accident that it can be said that he was more probably than not the person responsible for plaintiff's injury and that the plaintiff may property rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause.'
In the instant case the plaintiffs' proof showed that the decedent had the control of the trailer and that he opened the value on the heater. The explanation for the explosion was no more accessible to the appellant, who had never, so far as the record indicates, seen the trailer, than to anyone else.
For the reasons heretofore set forth we are of the opinion that the order granting the new trial as to the appellant must be reversed. It is unnecessary, therefore, to consider other points raised by counsel.
The order granting a new trial as to Edward H. Lakin is reversed.
WHITE, P. J., anc DORAN, J., concur. --------------- * Appeal Dismissed by Stipulation of the Parties Jan. 10, 1957.