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District Court of Appeal, Fourth District, California.


Civ. 2031.

Decided: June 28, 1938

Meserve, Mumper, Hughes & Robertson, of Los Angeles, for appellants. Mathes & Sheppard, of Los Angeles, and Wright, Monroe, Thomas & Glenn, of San Diego, for respondent.

We have given due consideration to the petition for rehearing filed by appellants. It is therein claimed that the statement of facts contained in our opinion is in various particulars incomplete and inaccurate. As respects its comprehensiveness, while it would obviously be out of the question within any moderate space to recite at large the contents of 944 pages of typewritten transcript, we do not think that we have omitted anything essential to a statement of the evidence on which the conclusions to be reached necessarily depend. As respects asserted inaccuracies in the somewhat extended statement of facts there contained, we have carefully rechecked the opinion with the record and heretofore caused the correction of the only two inaccuracies which we are able to discover, neither of which in fact affected our reasoning. Most of the others asserted to exist amount merely to the omission in some particular connection of matter which is fully stated elsewhere in the opinion, or else to an apparent misapprehension of what we have said. An example of the latter is counsel's comment on our statement with respect to bottled gas, wherein, after noting that it was piped to the outside of each vat, we added (80 P.2d 195): “We are aware of no evidence that there was, on the day of the explosion, any device attached and thereby made available at vat 14 for conducting it into that vat.” Counsel seems to think that we were in that connection talking, not about bottled gas but about acetylene, to which we had shortly before referred, and call our attention to the testimony of Assistant Fire Chief Courser (disputed by other witnesses) that a hose connected vat 14 with the acetylene tank, all of which is, as a matter of fact, fully noted and taken account of elsewhere in the opinion. Many of the complaints made of our review of the facts have to do not so much with what is stated as to the stress which we have placed on some phase of the case as compared with some other phase of it. As to these matters counsels' objection is in reality related not so much to what we have said about the facts as to the view we take of the law.

When we come, then, to the legal questions involved, the gist of the discussion centers about what application is to be given to the doctrine of res ipsa loquitur. Appellant insists that the case is governed by the authority of Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718, 48 Am.St.Rep. 146, and the subsequent cases which have applied its principles, and objects that, though we have recognized that decision as stating the law, we have said that the instant case is a different one without pointing out the difference. The distinction seems to us entirely clear. Judson v. Giant Powder Co. involved no situation in which it could be claimed either that the plaintiff or anyone else, except the defendant, had any control over any of the instrumentalities to which the explosion could be reasonably attributed. In these circumstances it was held unnecessary to show to what one of the various agencies controlled by the defendant the accident was attributable. If all agencies, in other words, to which the explosion could reasonably be attributed, were under the defendant's control, the doctrine res ipsa loquitur would be equally applicable, whichever one actually caused the explosion. Contrariwise, in the instant case it might readily have been believed from the evidence that the inflammable substance involved was gasoline and that both it and the agency which ignited it were under the control of the decedents or one of them. The jury indeed rejected this hypothesis, as it was its right to do, but the circumstance that, as an hypothesis, it was available and tenable seems to us radically to distinguish the case from the line of authorities represented by Judson v. Giant Powder Company, supra, and to throw it into an entirely different category from them. It is further insisted, however, that our opinion rests “on a discredited application of the doctrine res ipsa loquitur”, namely, that the doctrine “is to be applied only when the nature of the accident itself, not only supports the inference of the defendant's negligence, but excludes all others”. (80 P.2d 197.) We are not aware that we have announced any such view, though we did quote from the comparatively recent case of Biddlecomb v. Haydon, 4 Cal.App.2d 361, 364, 40 P.2d 873, wherein Lucid v. E. I. Du Pont, etc., Powder Co., 9 Cir., 199 F. 377, L.R.A.1917E, 182, is cited to that effect. There is, however, a wide distinction between demanding as a requisite to the application of the doctrine res ipsa loquitur that the instrumentality which caused the accident shall have been under the exclusive control of the defendant, and demanding that the evidence exclude any other inference than that the defendant negligently handled it. It is of course true that though an agency be under a defendant's exclusive control and though the accident be one which in the usual course of things does not occur when ordinary care is used, there remains a possibility that the occurrence was not due to the defendant's fault. As against that possibility, however, the doctrine res ipsa loquitur permits the jury to infer negligence. When however, the instrumentality itself is not clearly within the exclusive control of the defendant the situation is different. Since the general rule is that the occurrence of an accident in itself raises no presumption of negligence, dependence must be had on some inference in addition to the fact that there was an accident, and manifestly it must be an inference additional to the further fact that the accident was one of a sort that does not usually occur where due care is used. That inference may be entertained though no specific act of negligence be proved if, in addition to the circumstances just noted, it appear that the instrumentality which caused the accident was under the exclusive control of the defendant. If it was not under his exclusive control manifestly the inference may not be entertained. Such cases as Judson v. Giant Powder Co., supra, are undoubtedly authority for the proposition that the particular instrumentality that caused the accident does not necessarily need to be pointed out but, as said in our opinion, if it be shown that every instrumentality to which the accident could with reasonable probability be attributed was under the defendant's control, that is for practical purposes the equivalent of a showing that he controlled the particular instrumentality that caused it. Our expressions in the recent case of Wills v. Price, Cal.App., 79 P.2d 406, referred to by counsel go no farther than that. The distinctions to which we have just adverted appear to us entirely sufficient to reconcile the quotations by counsel from such cases as Hilson v. Pacific Gas & Electric Co., 131 Cal.App. 427, 437, 21 P.2d 662; Mintzer v. Wilson, 21 Cal.App.2d 85, 68 P.2d 370, and Barham v. Widing, 210 Cal. 206, 291 P. 173; as well as the earlier case of Ley v. Bishopp, 88 Cal.App. 313, 263 P. 369, with what we have in the instant case said. It was, for that matter, laid down in Hilson v. Pacific Gas & Electric Co., 131 Cal.App. 427 (page 434, 21 P.2d 662, 665): “that the doctrine of res ipsa loquitur can only apply when the defendant has exclusive control of the instrumentality causing the injury, and can in no event apply when the accident may as well have been due to one or more causes over which defendant had no control”. This, the court says, “is a correct statement of the rule”.

Returning to the facts in the instant case, if, the situation being res integra, the jury were confronted with evidence requiring no resort to very doubtful inference to enable them to conclude that vat 14 and the adjacent corridor and all explosive materials as well as all instrumentalities capable of igniting them were at the time of the explosion under the exclusive control of respondent, then we would have no hesitation in saying that the inference res ipsa loquitur might be properly indulged.

We do not wish to be understood as holding that circumstantial evidence will never suffice to establish the control by the defendant of the instrumentality causing the accident so as to lay the foundation for the inference res ipsa loquitur. That would be going altogether too far and be contrary to the views expressed in such cases as Lejeune v. General Petroleum Corporation, 128 Cal.App. 404, 416, 18 P.2d 429, and Hilson v. Pacific Gas & Electric Co., supra, as well as to the reasoning of Barham v. Widing, supra, although that case did not strictly speaking, involve the doctrine res ipsa loquitur. When, however, as here, the establishment of such exclusive control must itself rest on inferences, which are so far from necessary ones that the contrary inferences are at least as tenable as the ones adopted, we do not think the doctrine applicable.

The petition for rehearing is denied.


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