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District Court of Appeal, Second District, Division 2, California.


Civ. 12945.

Decided: July 09, 1941

Syril S. Tipton and Marvin Wellins, both of Los Angeles, for appellants. Joseph A. Ball and Kenneth Sperry, both of Long Beach, for respondents.

Plaintiffs, the sole heirs at law of George T. Hinds, deceased, appeal from a judgment in favor of defendants after the trial court granted the defendants' motion for a nonsuit in an action to recover damages, pursuant to the provisions of section 377 of the Code of Civil Procedure, for the wrongful death of said decedent.

The evidence being viewed in the light most favorable to plaintiffs, as must be done in reviewing a motion for a nonsuit (Guyer v. Pacific Elec. Ry. Co., 24 Cal.App.2d 499, 500, 75 P.2d 550), the material facts are:

February 23, 1937, George T. Hinds was employed as a welder by E. H. Irwin, doing business as Irwin Welding Works. The latter was engaged by defendant Allied Petroleum Co., to render certain welding services on a dehydrator tank, which was owned by said defendant and located on their premises in the city of Signal Hill. Mr. Hinds was directed by his employer to do the welding on the tank. About 9:30 a. m., February 23, 1937, Mr. Hinds arrived at the premises where the dehydrator was located, and the following conversation took place between the defendant Chester Fisher and Mr. Hinds:

“Q. All right; then, was anything said before he started to weld, regarding the tank, by you or Mr. Haines to Mr. Hinds? A. Mr. Hinds wanted to know if it was already to go to welding on and I told him we had filled it with water and washed it out and he said, ‘If you have got it full of water, it is O. K.’ and I says, ‘You can look right there at that half–inch valve and I will start the pump there and you can see for yourself,’ and Mr. Haines and Mr. Hinds was there, both right there and I went over and started the pump and the water started to run––running out and he turned around and said, ‘O. K.’ and ‘shut her down’ and I shut it off and he––we went to work––went to welding. Mr. Haines went in the office and we went to work doing the welding.”

There was expert testimony to the effect that the proper and safe practice to follow before welding on a dehydrator tank such as the one used in the instant case was to fill it with water. Mr. Hinds proceeded to do the welding work upon the dehydrator tank that was required, and while performing said welding the tank exploded and decedent was killed. There was a discoloration on the inner side of the tank opposite the place where decedent had been spotwelding on the exterior of the tank, which discoloration, according to the testimony, was caused by excessive heat.

Plaintiffs rely for reversal of the judgment on these propositions:

First: Defendants were guilty of negligence in that:

(a) Defendants violated a duty imposed on them by section 3, Act 4916, volume 1, Deering's General Laws [1937] 2071 (now section 3219, Public Resources Code, St. 1939, p. 1067).

(b) There was a common law duty which defendants violated.

(c) Defendants breached an express warranty to decedent that the dehydrator tank was safe for welding purposes.

Second: The doctrine of sic utere tuo ut alienum non laedas (so use you own as not to injure another's property) is applicable to the instant case.

Third: The doctrine of res ipsa loquitur is applicable.

Points (a) and (b) of plaintiffs' first proposition are untenable, for the reason that it is the general rule that the burden of proving by a preponderance of the evidence that a negligent act or acts of defendant was the proximate cause of the damage for which plaintiff seeks recovery rests with the plaintiff. Creamer v. Cerrato, 1 Cal.App.2d 441, 445, 36 P.2d 1094. In the present case plaintiffs admit that they have not complied with this rule, for they say in their brief, “The actual cause of the explosion in the instant case is not definitely and scientifically known.” Therefore, no liability may be predicated on points (a) and (b), since to do so would base the judgment on mere conjecture.

Plaintiffs' point (c) of the first proposition is also untenable, for the law is established in California that in an action for wrongful death, section 377 of the Code of Civil Procedure is applicable to tort actions only, and no recovery may be had under this section for damages resulting from a breach of contract. Willey v. Alaska Packers' Ass'n, D.C., 9 F.2d 937, 938; see also Revel v. Butler, 322 Ill. 337, 153 N.E. 682, 683; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27, 29, 16 L.R.A.,N.S., 699.

Plaintiffs' second proposition is without merit. The mere statement of the doctrine, “So use your own as not to injure another's property,” shows its inapplicability to the facts of the instant case. Decedent, and not defendants, was using the property of defendant Allied Petroleum Company at the time of the unfortunate accident.

Plaintiffs' final proposition is likewise untenable. The doctrine of res ipsa loquitur applies only where the instrumentality causing the damage is in the possession and under the control of the defendant. Hernandez v. Southern California Gas Co., 213 Cal. 384, 388, 2 P.2d 360; 19 Cal.Jur. 709 (1925); 8 Cal.Jur. Ten Year Supp. 384, sec. 125 (1936). Hence in the instant case this doctrine is inapplicable, since the uncontradicted evidence discloses that the dehydrator tank at the time of the unfortunate accident and for some period prior thereto was in the exclusive possession and under the control of decedent.

Cases relied on by plaintiffs, such as Merino v. Pacific Coast Borax Co., 124 Cal.App. 336, 12 P.2d 458 and Sistrunk v. Texas Holding Co., 88 Cal.App. 698, 264 P. 259, are factually distinguishable from the instant case. The evidence in them disclosed that facts existed which brought them within the purview of the rules above stated.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., concurred.