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


Civ. 11606.

Decided: February 04, 1938

Murchison & Clopton and Mort L. Clopton, all of Los Angeles, for appellant. Pacht, Pelton, Warne & Black, Isaac Pacht, and Alfred P. Chamie, all of Los Angeles, for respondent.

From a judgment in favor of defendant after the trial court granted defendant's motion for a nonsuit in an action to recover damages for personal injuries, plaintiff appeals.

Viewing the evidence most favorable to plaintiff, as we must in reviewing a judgment predicated upon the granting of a motion for a nonsuit, the material facts are these:

Shortly prior to September 24, 1934, the date of the accident hereinafter described, defendant rented to Fox Film Corporation two electric hoists. The Fox Film Corporation by means of cables connected these machines to a cage which was lowered and raised in a shaft leading down to a tunnel. The equipment was thus placed for the purpose of being used in connection with the filming of certain motion pictures. Carl Davidson had been employed by Fox Film Corporation to operate the hoists. In order to lower the cage it was necessary to disengage the clutch on the hoists to permit the drums on them to run free. The speed at which the drums revolved was controlled by a foot brake attached to the drums.

On the date above mentioned, plaintiff and several other men stepped into the cage, while it was in such a position that Mr. Davidson could not see it. Upon receiving a signal to lower the cage, he did so by disengaging the clutch. The weight in the cage was too much for the brake pressure, which he applied, with the result that the cage fell to the bottom of the shaft and plaintiff received serious personal injuries.

This is the sole question presented for determination: Did any negligent act of defendant contribute to plaintiff's injury?

This question must be answered in the negative. At the time of the accident the following ordinances were in effect in the city of Los Angeles:

“Los Angeles City Ordinance No. 33,512 (N.S.) as Amended by Ordinances Nos. 63,023 and 69,810.

“Sec. 9. It shall be unlawful in the City of Los Angeles for * * * the owner * * * thereof to cause or permit to be used or operated: Any * * * hoist * * * unless such person shall have an unexpired and unrevoked license issued by the Board of Mechanical Engineers of the City of Los Angeles for the use or operation thereof, which said license shall clearly set forth the particular apparatus, machinery or equipment for which it shall have been issued;

“Sec. 26. Payment of Inspection Fees. It shall be unlawful for any person, firm or corporation to * * * cause or permit to be used or operated, any of the equipment or apparatus mentioned in this ordinance until after the same shall have been inspected * * *

“Sec. 27. It shall be unlawful for any person, firm or corporation * * * to cause or permit to be used * * * any equipment mentioned in this ordinance for the transportation of passengers or freight until the certificate of inspection of such equipment shall have been issued by the Board of Mechanical Engineers. * * *”

The requirements of the above ordinances had not been complied with either by defendant Fox Film Corporation or Mr. Davidson, and it may be conceded for the purposes of this case that the hoists did not comply with the requirements of other ordinances of the city of Los Angeles. However, the mere legal ownership of the hoists did not impose a liability on defendant to comply with the city ordinances. In our view, the word “owner” used in the above–mentioned ordinances is to be construed in its ordinary acceptation; that is, one who, owning property, uses it himself or by or through his servant or agent, and is inapplicable to one who holds merely the naked legal title to personal property after having relinquished to another the exclusive management, possession, and control of the chattel.

The correct rule is stated in Gulzoni v. Tyler, 64 Cal. 334, at page 336, 30 P. 981, 982, by Mr. Justice Sharpstein: “The rule, as stated in Shearman and Redfield on Negligence (section 501), is that if the owner of property lets or lends it, and transfers the entire possession and control of it to another, the owner is not responsible for the wrongful use or mismanagement of it by the transferee. Whoever had the exclusive possession, management, and control of the boat, its officers and men, was alone responsible for its mismanagement; and whether rightfully or wrongfully in such possession the liability would rest on them alone.”

The foregoing rule of law is entirely reasonable. Otherwise, a vendor of hoists under a conditional sales contract would be liable to a party injured through the failure of the conditional vendee to comply with city ordinances. This obviously would be an unreasonable requirement, since the vendor would be entirely without the power to require his vendee to comply with the law.

It is conceded that neither defendant, its servants, or agents were operating the hoists at the time of the injury to plaintiff, and thus any failure to comply with the law did not constitute negligent acts for which it was responsible.

Therefore, the trial court's order in granting defendant's motion for a nonsuit was correct.

The order is affirmed.

I dissent. In my opinion evidence was introduced which would support findings that defendant leased to Fox Film Corporation an electric hoist which was not constructed or equipped as required by law, and which was unsafe for the purposes for which it was leased, that the lessor did not use reasonable care to make it safe, and did not inform the lessee of its unsafe condition. Such findings would support a verdict in favor of the plaintiff. Restatement of the Law of Torts, § 408. The motion for a nonsuit should have been denied.

McCOMB, Justice.

I concur: CRAIL, P. J.