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District Court of Appeal, Third District, California.


Civ. 7290.

Decided: May 29, 1947

Butler & Reckers, of Sacramento, for appellant Luthringer. Busick & Busick, of Sacramento, for appellant Moore. Van Dyke & Harris, Gerald M. Desmond, and Henry & Bedeau, all of Sacramento, for respondents.

The plaintiff commenced this action to recover damages for injuries sustained as a result of breathing hydro-cyanic acid gas which had escaped from adjoining premises into the drug store where he was employed.

The drug store is located on the ground floor of an office building owned by the defendant Medico-Dental Building Company in the City of Sacramento. Immediately to the north of said building and contiguous thereto is a one story building also owned by said Building Company and leased to the defendant Bedell for use as a restaurant. The Building Company's superintendent occupied an office in the basement of the office building from which a doorway leads into one of the basement rooms in the restaurant building. The south wall of the superintendent's office projects upward, forming the north wall of the pharmacy in which plaintiff was employed.

For some time prior to November 1943, cockroaches from the restaurant basement had invaded the superintendent's office. After discussions between Mr. Bedell and Mr. Oser of the Building Company, Bedell engaged defendant R. L. Moore, doing business under the name of ‘Orchard Supply Company,’ to eradicate the pests. Moore began fumigation on the evening of November 16, 1943, after the premises had been prepared by sealing cracks, etc. by introducing hydro-cyanic acid gas into the restaurant building basement and the superintendent's office.

Coming to work the following morning plaintiff entered the pharmacy by means of a back door which opened into a hallway off the building lobby. Shortly thereafter he became nauseated and lost consciousness, allegedly as a result of contact with gas which had escaped from the basement rooms. He was discovered lying on the floor by the bookkeeper who entered the premises between 9:15 and 9:30 A. M.

The complaint sets forth two causes of action. The first is based upon the theory of absolute liability for the miscarriage of an ultra-hazardous activity within the rule announced in Restatement of Torts, sections 519 et seq. The second alleges negligence on the part of the defendants in the manner of introducing the gas into the premises and allowing it to escape.

At the conclusion of plaintiff's case each of the defendants moved for a non-suit as to both causes of action. The trial court denied the motions as to the first cause of action, but granted the nonsuit on the second. From statements of the trial judge made at the time of granting the motion it appears that he believed the question of negligence had become immaterial and that it would be confusing to submit the case to the jury on both theories.

The jury returned a verdict for plaintiff and against defendant Moore in the sum of $20,000, and a verdict in favor of defendants and respondents Bedell and the Building Company. The judgment against Moore was later reduced to $10,000 by the trial court with the consent of plaintiff upon defendant's motion for a new trial.

The plaintiff has appealed from the judgments of nonsuit on the second cause of action and from the judgment in favor of defendants Bedell and the Building Company entered on the verdict of the jury on the first cause of action. The defendant Moore has appealed from the judgment against him.

Appeal of Defendant Moore.

The defendant and appellant Moore in his assignment of errors raises as his first point the objection that the evidence is not sufficient to sustain the verdict, in that there is no evidence that plaintiff breathed any hydro-cyanic acid gas, or that the gas could have or did escape from the basement into the drug store.

It is of course too well settled to warrant citation that the appellate court's power on such question begins and ends with the inquiry whether there is substantial evidence, contradicted or uncontradicted, which in and of itself will support the conclusion reached by the trial court. That the evidence on this point is clearly conflicting is quite obvious, and while certain evidence cited by appellant Moore would tend to show that there was no gas present in the pharmacy, and would itself have supported a verdict the other way, there also is considerable evidence which he does not cite from which the jury could have concluded that the plaintiff was injured by the breathing of such gas. Numerous witnesses, including the bookkeeper, a fireman who worked on plaintiff while unconscious, persons employed about the building, and doctors who examined the plaintiff on his entering the hospital, testified variously to having observed the peculiar odor of the gas in and about the drug store both before and after the plaintiff was found unconscious, and having detected the odor on plaintiff's breath and clothes. Dr. Schofield testified that from observing such odor on plaintiff's breath and other physical finding at the time Luthringer was examined by him immediately after entering the hospital, he made a definite diagnosis of prostration from cyanide poisoning. Defendants' contention that such evidence is insufficient to sustain the verdict is therefore wholly without merit.

The further contention is made that the judgment of $10,000.00 is excessive for the reason that the evidence is insufficient to show that plaintiff suffered any injuries of a permanent nature, or that the cyanide poisoning, if any, contributed to the symptoms of which he now complains. Main reliance is placed upon the testimony of defendants' expert witness that persons overcome by hydro-cyanic acid gas either die or recover completely within a short period of time. Opposed to this is much testimony from several medical experts that the chronic inflammatory condition of plaintiff's respiratory tract is possibly due to the deteriorating action of the gas upon the cellular structure of the tissues. This is coupled with the testimony of plaintiff and others who were in a position to observe his physical condition before and after the accident that the conditions complained of appeared after the experience while they did not exist prior thereto. There being sufficient evidence, which taken alone will support the conclusion of the jury that the plaintiff suffered injuries of a more or less permanent, chronic and disabling nature, this court will not weigh such evidence to determine the direction of the preponderance.

The question of the amount of damages is one for the jury, and secondly, for the trial court on a motion for a new trial, who may in the proper exercise of his function reduce the amount of the judgment if in his sound discretion it appears to be excessive. An appellate court will not interfere unless the amount allowed is so ‘outrageously excessive as to suggest, at the first blush, passion or prejudice.’ Lahti v. McMenamin, 204 Cal. 415, 420, 268 P. 644, 645. See also Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773, 117 P.2d 850; Reilly v. California Street Cable R. Co., 76 Cal.App.2d 620, 173 P.2d 872.

Moore further assigns as error the trial court's ruling sustaining plaintiff's objection to the admission in evidence of certain hospital records relating to plaintiff. The court admitted the day by day records and charts of the nurses but excluded those documents offered which consisted of reports, notes etc. which were signed by the doctors.

Hospital records have been held to be admissible in evidence under the Uniform Business Records as Evidence Act. C.C.P. sections 1953e–1953h; Loper v. Morrison, 23 Cal.2d 600, 145 P.2d 1; McDowd v. Pig'n Whistle Corp., 26 Cal.2d 696, 160 P.2d 797; Gunter v. Claggett, 65 Cal.App.2d 636, 151 P.2d 271. The admission of business records is an exception to the hearsay rule, the object being to eliminate the necessity of calling each witness to a transaction. In the present case the doctors who signed these reports were sworn as witnesses at the trial and were competent to testify as to the matters comprising the reports, and which they had made relative to plaintiff's physical condition. The documents were not offered for the purpose of impeaching contradictory testimony but as affirmative proof of the matters recited. Under such circumstances their exclusion could not have been prejudicial to said defendant. The facts are similar in this respect to those in Loper v. Morrison, supra, wherein the Supreme Court in refusing to reverse a judgment on the ground of error in excluding certain hospital records stated: ‘Before this court can reverse a judgment for improper exclusion of evidence, an examination of the entire cause must show that the error complained of resulted in a miscarriage of justice. Cal.Const. art. VI, sec. 4 1/212.’ (23 Cal.2d 609, 145 P.2d 51). Whether or not the exclusion of the hospital records was a proper application of the hearsay rule is immaterial, for it is apparent that said defendant's case was not prejudiced by the action of the trial judge.

The most important question we are called upon to decide, and which is one of first impression in this state, concerns the application by the trial court of the doctrine of absolute liability without negligence to the facts of this case. Specifically, objection is made to the following given instructions:

‘I instruct you that any person engaging in an ultra-hazardous activity, who knew, or in the exercise of reasonable care, should have known its ultra-hazardous character, and thereby proximately causes injury to another by a miscarriage of such activity, is liable to the person harmed, unless the latter knew or in the exercise of reasonable care should have known its ultra-hazardous nature and failed to exercise reasonable care for his own safety, or unless he knowingly and voluntarily invited the injury, and brought it upon himself.

‘Likewise, any person, firm or corporation who brings, or permits to be brought upon its premises that which is of an ultra-hazardous nature, and who knew, or in the exercise of reasonable care should have known its ultra-hazardous nature, is liable for any injury proximately caused another, by its miscarriage, unless the person so harmed knew, or in the exercise of reasonable care should have known of its ultra-hazardous nature and failed to exercise reasonable care for his own safety or unless he knowingly and voluntarily invited the injury, and brought it upon himself.

‘This principal of the law does not require a findings of negligence upon those so engaging in such activity, or upon those bringing or permitting it to be brought upon the premises.

‘I instruct you as a matter of law that under all the facts and circumstances of this case, the use and release of hydro-yanic acid gas by the defendant Moore, in the premises of defendants Bedell and Sacramento Medico-Dental Building, a corporation, all as appears in the evidence, constituted an ultra-hazardous activity.’

‘Your are instructed that defendant R. L. Moore, doing business as ‘Orchard Supply Company’, was engaged under all the facts and circumstances of this case in what the law considers to be an ultra-hazardous activity when he used hydro-cyanic acid gas to fumigate the connected basement rooms which have been referred to as Bedell's storeroom and the Superintendent's office. A person who carries on an ultra-hazardous activity is liable to another whom the actor should recognize as likely to be harmed by the miscarriage of the activity for harm resulting to said person from that which makes the activity ultra-hazardous, although the utmost care is exercised to prevent the harm, unless the person injured knew or in the exercise of reasonable care should have known its ultra-hazardous nature and fails to exercise reasonable care to avoid the harm threatened thereby after it has miscarried or is about to miscarry. In the present case, if you find from a preponderance of the evidence that defendant R. L. Moore, doing business as ‘Orchard Supply Company’, should have recognized that persons in nearby parts of the Medico-Dental Office Building were likely to be harmed if hydro-cyanic acid gas escaped from the rooms being fumigated and that hydro-cyanic acid gas did in fact escape and find its way to the Medico-Dental Pharmacy premises thereby coming in contact with and causing harm to the plaintiff Albert L. Luthringer, unless you also find from a preponderance of the evidence that plaintiff Albert L. Luthringer knew or in the exercise of reasonable care should have known that fumigation with hydro-cyanic acid gas was being carried on and that the gas had escaped or was about to escape to the pharmacy premises and then failed to exercise reasonable care to avoid the harm threatened, or unless he knowingly and voluntarily invited the injury and brought it upon himself, your verdict must be for the plaintiff Albert L. Luthringer and against defendant R. L. Moore, doing business as ‘Orchard Supply Company’.'

It is the contention of appellant Moore that such instructions are against law for several reasons: First, that the principle of strict or absolute liability is not a part of the law of this state; secondly, if applicable as a general principle, the activity here carried on was not such as would come within the rule; and thirdly, that the instructions given invaded the province of the jury whose function it was to determine the ultra-hazardous nature of the acts.

The imposing of liability in the absence of international injury or negligence is not uncommon in Anglo-American jurisprudence, either as a development in the common law or by legislative enactment. Many examples might be cited. Unintentional trespass upon land, libel, and keeping of dangerous animals, are but a few. Implied warranty, especially in the sale of foods, and the objective theory of contracts fall within the same category. In the field of legislation, Workmen's Compensation Acts, and statutes making owners of automobiles liable for damage resulting from another's use thereof are classic illustrations.

The concept of liability without fault in tort actions is one of social and economic expediency and has its origin in the fundamental aim of shifting a loss from one upon whom it has fallen to another whose acts have been the proximate cause of a foreseeable risk. Obviously the application of the rule is to be confined within reasonable limits. Thus the injury for which a recovery is allowed must have been the proximate result of the activity in its ultra-hazardous nature, and the risk must have been one which was foreseeable. An activity carried on in one place reasonably may be considered as ultra-hazardous while the same acts done elsewhere may not be such. Thus in this state blasting operations or storage of explosives carried on in an isolated or properly selected district have been held not to impose liability upon the operator in the absence of negligence or nuisance. Houghton v. Loma Prieta Lumber Co., 142 Cal. 500, 93 P. 82, 14 L.R.A., N.S., 913, 14 Ann.Cas. 1159; Kleebauer v. Western Fuse etc. Co., 138 Cal. 497, 71 P. 617, 60 L.R.A. 377, 94 Am.St.Rep. 62. But when the same activity is carried on in a thickly populated area our courts have allowed recovery in the absence of any showing of negligence. Colton v. Onderdonk, 69 Cal. 155, 10 P. 395, 58 Am.Rep. 556; McKenna v. Pacific Electric Ry. Co., 104 Cal.App. 538, 286 P. 445. See also Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515, 24 P. 303, 18 Am.St.Rep. 248; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573, 46 P.2d 981. In similar cases liability has been imposed upon the application of the principle of res ipsa loquitur. Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718, 48 Am.St.Rep. 146. However, the true basis of the liability imposed in such cases is not that of negligence but more nearly approximates the elements of a willful tort in that a person is presumed to intend the natural and probable consequences of his acts. Negligence is defined as conduct which is unreasonable with respect to the utility derived from the particular way in which it is done. Restatement of Torts, sec. 282. Another method of doing the same thing might be equally useful but occasion less risk to others. Society demands that the act be done with a minimum amount of risk consonant with the result to be attained. In cases where liability without fault is imposed for resulting damage caused by the miscarriage of an ultra-hazardous activity, the performance of the act is sanctioned because of the great amount of utility either to the individual or to the public generally from the permitting of such acts. To the ordinary prudent man the act is justified and the risk is a reasonable one even though resulting damage may be said to almost certainly follow despite every precaution. However, the dangerous enterprise must ‘pay its way’ and the tendency of the courts is to impose liability for resulting injuries which are foreseeable within the risk created. See Prosser, Torts, pp. 426 et seq.

The leading California case and the one which has gone furthest in imposing liability without fault is that of Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60 A.L.R. 475. The basis of strict liability is therein clearly stated (205 Cal. at page 334, 270 P. at page 955, 60 A.L.R. 475) as a broad and fundamental rule that ‘where an injury arises out of, or is caused directly and proximately by the contemplated act or thing in question, without the interposition of any external or independent agency which was not or could not be foreseen, there is an absolute liability for the consequential damage, regardless of any element of negligence either in the doing of the act or in the construction, use, or maintenance of the object or instrumentality that may have caused the injury.’ See Carpenter, The Doctrine of Green v. General Petroleum, 5 So.Cal.Law Rev. 263.

The common law never has been so inflexible as to prohibit the application of basic rules and principles to new situations arising in a rapidly changing and developing society. Our failure to discover a case in which recovery has been allowed for injuries resulting from the use of this gas for fumigation on the theory of absolute liability does not prevent the application of the rule to the present situation.

Expert testimony was introduced at the trial of this case showing that hydro-cyanic acid gas is a highly volatile and penetrating gas, that it is extremely difficult or practically impossible to confine and that even with the utmost care the gas would escape to other portions of a building being fumigated. Also the gas is extremely lethal, a small amount inhaled being sufficient to produce death, and in this respect is unlike fuel gas. Appellant Moore maintains that the use of this gas for fumigation is an activity of common usage in the community and for that reason comes within the exception to the rule as embodied in Restatement of Torts, section 520. Such contention obviously is without merit. It would be equally as absurd to assert that dynamite is a common material used in blasting and therefore its use is not ultra-hazardous. We cannot say that fumigation with such a lethal gas is a matter of common usage in that it is carried on by the great mass of mankind or by many people in the community. On the contrary, as testified to by the defendant, because of the very nature of this gas only a few pest control operators are licensed to use it in fumigation.

Whether or not the activity comes within the rule is a question for the trial judge, and it is proper to instruct the jury that they may find for the plaintiff even though there is no showing of negligence on the part of the defendant. Munro v. Pacific Coast Dredging etc. Co., supra. This is the rule laid down in Restatement of Torts, section 520, Comment h.

The jury was repeatedly instructed that the use of hydro-cyanic acid gas creates a liability, independent of negligence, only when it appears that the gas was the proximate cause of the injuries complained of. The verdict against the defendant Moore necessarily implies a finding of the jury that the use of that agency under the circumstances of this case was the proximate cause of the injuries sustained by plaintiff. There is evidence to support that finding. The court merely instructed the jury in this regard that as a matter of law the use of hydro-cyanic acid gas under the circumstances ‘constituted an ultra-hazardous activity.’

The remaining assignments of error made by appellant Moore consist of the trial court's refusal to give certain instructions proposed by the defendants, some twenty-seven in number. It would serve no useful purpose to set forth all of these instructions here. They were either inconsistent with the evidence and the pleadings or the theory of the case as applied by the trial court, which we have here approved, or were covered by other instructions given. To have given these instructions would have served no purpose but to confuse the minds of the jurors. Under the well established law of this state not only is there no error in refusing to give instructions on issues outside the case but if given would have constituted reversible error in the event that judgment had been for the defendants. (Shepherd v. Jones, 71 Cal. 223, 16 P. 711; Davenport v. Stratton, 24 Cal.2d 232, 149 P.2d 4; Arundel v. Turk, 16 Cal.App.2d 293, 60 P.2d 486.) Where as here the given in-not reversible error to refuse instructions which are merely cumulative or repetitious structions as a whole properly inform the jury of the law applicable to the case it is and were covered by other instructions given. (Hicks v. Ocean Shore Railroad, Inc., supra; 24 Cal.Jur. 806, and cases there cited.)

Appeal of Plaintiff Luthringer

The plaintiff's appeal is from the judgments of non-suit and from the verdict in favor of the defendants Bedell and the Building Company.

The case went to the jury with instructions that if defendants Bedell and the Building Company knew or in the exercise of reasonable care should have known of the ultra-hazardous nature of the operations, and if the injuries to plaintiff were proximately caused by the leakage of the gas from the basement rooms, they were to find for the plaintiff. Under such instructions the question of negligence was withdrawn from their determination, and by returning a verdict for these defendants, the jury necessarily must have found from the facts and circumstances as shown by the evidence that these defendants did not know of the nature of the work which Moore intended to perform in the extermination of the cockroaches. Considered in connection with such a finding there could have been no different result had the case been submitted also on the theory that the fumigation was done by defendant Moore in a negligent and careless manner. It follows that no reversible error was committed in this respect of which the plaintiff can complain.

It is next contended that the verdict in favor of these defendants is not supported by the evidence. There can be no argument but that the defendant Moore in the performance of his work acted as an independent contractor. Such fact is impliedly conceded by the plaintiff in his brief on appeal. The evidence further clearly shows that he was not hired by the Building Company but by Bedell, and, according to the testimony of the latter, was given complete independence as to the manner and method of exterminating the pests.

On this point defendant Bedell testified that he did not know what kind of gas was going to be used and denied having been told by Moore of its nature, that he had destroyed cockroaches before with chemicals in the form of powders which were irritating but produced no ill effects, and that he supposed the reason for making the premises air tight was to keep the fumigant in contact with the insects—as he put it—‘to smother them.’ This and other testimony of the Building Company's superintendent is not so incredible as to be unworthy of belief, and sufficiently supports the finding of the jury on the question of knowledge.

Plaintiff relies upon the case of Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929, to support his position that the possessor of land is liable for the miscarriage of an ultra-hazardous activity carried on by an independent contractor on the premises. The decision in that case holds that a landlord who is under a duty to keep the premises in repair cannot delegate that duty to an independent contractor and thus escape liability for negligence in making the repairs. The present case clearly does not come within the rule of the Brown case or section 422 of Restatement of Torts which is cited and relied upon in that opinion. Nor does this case come within the rule of Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, imposing liability upon one who hired an independent contractor to perform inherently dangerous work (spraying of crops with arsenic dust from an airplane) where the contractor was employed to do a specific job in a particular manner with an insecticide furnished by the employer. The distinction lies in the fact that defendant Moore was not hired to fumigate with hydro-cyanic acid gas but merely to exterminate the cockroaches.

Under circumstances similar to the present situation but in actions based on negligence, courts of other jurisdictions have charged the employer of an independent contractor who is hired to fumigate a house or dust crops with the duty of ascertaining at his peril the nature of the poison used, imposing liability on such employer for the negligent performance of the inherently dangerous act. Medley v. Trenton Inv. Co., 205 Wis. 30, 236 N.W. 713, 76 A.L.R. 1250; Ferguson v. Ashkenazy, 307 Mass. 197, 29 N.E.2d 828; Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W.2d 484. The law in California, however, has been stated to be that an employer is not liable for the negligent acts of an independent contractor where the work to be done is not by its very nature intrinsically dangerous. Boswell v. Laird, 8 Cal. 469, 68 Am.Dec. 345; Houghton v. Loma Prieta Lumber Co., supra; Schmidlin v. Alta Planing Mill Co., 170 Cal. 589, 150 P. 983. But the rule is otherwise where the plan to be executed by the contractor is known by him and the employer to be hazardous or injurious to third persons. Williams v. Fresno C. & I. Co., 96 Cal. 14, 30 P. 961, 31 Am.St.Rep. 172; Miles v. A. Arena & Co., supra. In the present case it was not the mere fact that fumigation was to be carried on but the use of cyanide gas which under the circumstances made the act hazardous. Obviously the determining factor is knowledge, actual or implied, on the part of the employer of the dangerous nature of the work. Here the record discloses testimony that defendant Moore was not employed by Bedell to execute a plan involving an ultra-hazardous activity but to achieve an end result namely, the extermination of the cockroaches in whatever manner Moore in his discretion deemed most efficient. The question of knowledge on the part of defendants Bedell and the Building Company was one of fact for the jury where the evidence on this point was in conflict.

It may be that the law would impose upon defendants Bedell and the Building Company the same liability as upon Moore in the event they had actual knowledge of the dangerous character of the chemical Moore chose to use. Rest. Torts, sec. 835f. However, we should not assume the task of deciding that question which has now become moot in view of the holding that the jury in resolving a conflict in the testimony found upon sufficient evidence that such knowledge was lacking.

The judgment in favor of plaintiff Luthringer and against defendant Moore, the judgment of non-suit and the judgment in favor of defendants Bedell and Medico-Dental Building Company are affirmed.

PEEK, Justice.

THOMPSON, Acting P. J., and SCHOTTKY, Justice pro tem., concur.