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District Court of Appeal, Fourth District, California.

Hugh H. DANNER and Maxine Danner, Husband and Wife, Plaintiffs and Appellants, v. William ATKINS, Alex Bischel, Chester Bischel, Insured Transport, Inc., et al., Defendants and Respondents.*

Civ. 4975.

Decided: March 22, 1956

Deadrich, Bates & Stewart and Kenneth H. Bates, Bakersfield, for appellants. Baker, Palmer, Wall & Raymond, Bakersfield, for respondents William Atkins, Alex Bischel and Chester Bischel. Conron, Heard & James, Bakersfield, for respondents Insured Transport, Inc.

This is an action for property damage and personal injuries sustained by plaintiffs when a truck and trailer, owned by defendant Insured Transport, Inc., rolled into a cafe operated by plaintiffs on the east side of highway 99 at Wheeler Ridge in Kern county.

On October 14, 1952, William Atkins, an employee of defendants Alex and Chester Bischel, was driving the truck and trailer involved northerly on highway 99 at about 8:30 p. m., when, because of motor trouble, he stopped and parked his equipment 12–15 feet east of the pavement on the highway and at a point approximately 250 feet south of the cafe and near a garage. He called to a mechanic who was standing by the door of the garage and asked him to check the motor so that he could ‘call Fresno and tell them what the trouble was'. Atkins testified that after he had parked the truck, the mechanic asked him to start the motor again; that he got back into the cab and started it and let it run for a while; that he then shut the motor off, left the truck in double low gear with the vacuum brakes on and the mechanical brakes set and walked down to the restaurant, where he had a cup of coffee and placed a call to Fresno; that the mechanic, who had been left with the truck, then came into the restaurant and was about to order a cup of coffee when the truck struck the side of the building; that the accident occurred seven or eight minutes after he had left the truck; that when he left it, the mechanic was standing on the front part of the truck looking the motor over.

Ettry McElyea, the mechanic, testified that the truck was parked 10 or 12 feet off the pavement; headed north, when the driver, Atkins, asked him to see what the noise was in the motor; that he checked it out; that Atkins remained with him until he went to the cafe to call ahead to stop another driver; that Atkins stated that he would come back after making the telephone call and they would ‘check it out more’; that after Atkins left, he, McElyea, took his flashlight and looked into the motor to ascertain if he could see anything from the outside that would be wrong; that he went around to the back of the equipment to inspect it; that after Atkins had gone, he walked back to the garage for two or three minutes and then down to the cafe; that while he was ordering a cup of coffee, the truck hit the building; that before he left the truck, he looked inside the cab and checked the transmission and saw that it was in gear; that there was no one else around the equipment when he came from the garage and looked at it, and it was not moving.

Evidence was presented showing that the slope of the ground from the point where the truck was parked to the cafe was about 2.7 per cent and that there was considerable damage to the cafe building as well as to its contents, but there was no evidence presented to explain how the truck had rolled approximately 250 feet to strike the cafe.

On October 16, 1952, T. J. La Gess, a claims adjuster employed by the Colonial Insurance Company, insurer of the truck, called at the cafe and discussed the question of damages with plaintiff Hugh H. Danner. Danner stated that he and his wife were the owners of the real property. Danner made a demand for settlement which was not satisfactory to La Gess. La Gess told Danner that he would immediately contact the Driver and Eddy Construction Company and ‘if he would authorize the repairs, he, La Gess, would guarantee payment.’ On the following day Danner told La Gess that what he wanted was ‘to get the building repaired and get back in business.’ La Gess testified that he contacted Mr. Eddy of the Driver and Eddy Construction Company, told him of his conversation with Danner, and asked him to contact Danner for authority in relation to it. Mr. Eddy testified that at the request of La Gess he called at the cafe on October 15, 1952, and made an estimate of the damages; that he reported to La Gess that the cost of repairs to the building would be between $4,000 and $4,500; that pursuant to this estimate, his firm repaired the building and the work was commenced in about a week after the estimate was made; that the total cost over the original replacement was $2,860 and the total amount was $6,907; that his firm received payment for the job from the Colonial Insurance Company. La Gess testified that when the work was almost completed he asked Danner whether or not the property was in the name of Myra B. Howe and Danner answered in the affirmative, stating that Mrs. Howe was his aunt and that he had power of attorney on the property so that any release executed by him was valid; that he would not have authorized the work except for the representations made by Danner in his original conversation with him; that he prepared a full release of all claims against the Bischels for the sum of $1,000 in additon to the cost of repairs of the building and presented it to Danner for his signature; that Danner said it was a good offer and he was going to take it; that he left the release with Danner. The record shows in this connection that the offered release was never signed by Danner and no money was paid to him by virtue of it.

Danner testified that Myra B. Howe was the owner of the property and that he was operating the cafe under a lease from her; that he did not direct the Driver and Eddy Construction Company to do the repair work and that the construction work was completed about the middle of January, 1953; that about three days after the accident, La Gess came to the cafe but that he did not have a discussion with him as to the ownership of the building; that he refused to sign an agreement of settlement prepared by La Gess. He testified in detail as to loss of personal property in the building and to some personal injuries sustained by his wife.

It was alleged in the complaint that Atkins negligently stopped and parked the truck and caused it to run into and against plaintiffs' cafe, proximately causing damage to the personal property therein; that as a further result thereof, plaintiffs were deprived of the use of the cafe for a period of three months, and that as a further result of the negligence of the defendants, plaintiff Maxine Danner sustained personal injuries. The trial court found these allegations were untrue and that it was not true that plaintiffs suffered property damage or damage for personal injuries in the amounts alleged, or in any other sums. It was further found that plaintiffs represented to defendants Alex Bischel, Chester Bischel and William Atkins that they were the owners of said premises and induced said defendants to cause ‘certain physical damage inflicted upon the building to be repaired in such a manner as the value of said building was enhanced in excess of $2,800; that but for such representation said defendants would not have caused said repairs to have been made; that such conduct constituted fraud upon defendants.’

Plaintiffs appeal from the judgment entered against them and contend that the findings are contradictory and result in a decision upon matters not raised by the pleadings nor supported by the evidence; that negligence of defendants was shown as a matter of law and that the defense was not sufficient; that negligence being present, plaintiffs are entitled to compensation as a matter of right.

The evidence shows conclusively that personal property belonging to plaintiffs was damaged and destroyed by the collision; that plaintiff Maxine Danner suffered personal injuries therefrom; and that plaintiffs were deprived of the use of the building during the time that it was being repaired. It is therefore apparent that the finding that plaintiffs suffered no damage is contrary to the evidence and unsupported by it.

We are of the opinion that the doctrine of res ipsa loquitur is applicable to the facts of the instant case. In Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446–447, 247 P.2d 344, 349, it is said:

‘* * * as a general rule, res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses, and they have considered the circumstances relating to the accident in each particular case, such as the extent of control exercised by the defendant, the plaintiff's own conduct, the likelihood of negligence by some third person, and in some situations, evidence that the defendant is better able than the plaintiff to explain what happened. All of these matters have been treated as aids to help the courts in determining whether the accident was of such a nature that the injury was more probably than not the result of the defendant's negligence.’

In Price v. McDonald, 7 Cal.App.2d 77, 45 P.2d 425, plaintiff recovered judgment for injuries received when an automobile coasted out of a driveway in the nighttime, crossed a public street and crashed through the wall of a dwelling house where plaintiff was sleeping. The complaint alleged that the defendants negligently parked the automobile and so negligently controlled it that it caused plaintiff's injuries. The court said, 7 Cal.App.2d at page 81, 45 P.2d at page 427:

‘We are of the opinion that under such allegations a presumption of negligence arises when an unattended automobile coasts down a hill and that, upon proof of these facts, it becomes incumbent upon the person having control to explain the cause of the car's movement. Defendants in the case at bar did not relieve themselves from liability by mere proof that they safety parked the car. Their testimony to that effect enables them to argue with plausibility that someone else must have interfered with the car, but that argument was one for the jury, and does not constitute a sufficient defense, in the absence of all evidence that such was the fact. We are of the opinion that the case made by plaintiff satisfactorily establishes all the elements necessary to bring into operation the doctrine of res ipsa loquitur. If the doctrine is applied, then admittedly the plaintiff must prevail, because the cause of the accident remains unexplained.’

In Harlow v. Standard Improvement Co., 145 Cal. 477, 78 P. 1045, it appeared that the injury occurred when a steamroller used in street work by the defendant ran into the building of plaintiffs. The court held that ‘The manner in which it appeared that the injury was caused sufficiently sustains the finding of the jury that it was through the negligence of the defendant. Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718. The case is one in which the maxim res ipsa loquitur is peculiarly applicable.’

In the instant case, Atkins parked his equipment in front of the garage and asked the mechanic McElyea if he would check it over and ‘if it would be all right if he worked on it there.’ There is no indication in the record that McElyea was instructed to or did move the truck from the place where it was parked. The evidence shows that neither Atkins nor McElyea observed any one else around the equipment when they walked down to the cafe. Under the circumstances shown by the record, the doctrine of res ipsa loquitur was applicable and it was incumbent upon the defendants to produce evidence sufficient to meet the inference of negligence.

In Talbert v. Ostergaard, 129 Cal.App.2d 222, 228, 276 P.2d 880, 883, the court said:

‘Procedurally, it is incumbent on defendant to rebut the inference by a showing “either (1) of satisfactory explanation of the accident, that is, an affirmative showing of a definite cause for the accident, in which cause no element of negligence on the part of the defendant inheres; or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown. In the latter case, inasmuch as the process of reasoning is one of exclusion, the care shown must be satisfactory, in the sense that it covers all causes which due care on the part of the defendant might have prevented.” Dierman v. Providence Hospital, 31 Cal.2d 290, 295, 188 P.2d 12, 15. In short, the ‘explanation which the defendant is required to make is an explanation of his conduct and, to be complete, it must be as broad as the inference.’ Hinds v. Wheadon, 67 Cal.App.2d 456, 464, 154 P.2d 720, 724. The question of the sufficiency of a defendant's explanation of the accident or the sufficiency of his evidence of due care is ordinarily one of fact for the jury. Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53; Ireland v. Marsden, 108 Cal.App. 632, 291 P. 912. But if, in explaining his conduct, the defendant fails to produce substantial evidence of the use of due care, as where he fails adequately to disclose the nature of an inspection he was required to make, his defense may be held insufficient as a matter of law. Chutuk v. Southern Calif. Gas Co., 218 Cal. 395, 399–400, 23 P.2d 285; O'Connor v. Mennie, 169 Cal. 217, 226, 146 P. 674. See Dierman v. Providence Hospital, supra.'

No explanation was offered in the instant case showing what caused the truck involved to roll down and into the building, and we conclude, therefore, as a matter of law, that the defense is insufficient.

Defendants argue that Atkins was not in control of the vehicle and that the last person shown to have control over it was the mechanic, McElyea. However, he did not exercise control over it and it is said in Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d at page 444, 247 P.2d at page 348:

‘* * * the fact that the accident occurs some time after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some third person, or its condition otherwise changed, after control was relinquished by the defendant. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517–518, 203 P.2d 522; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458–459, 150 P.2d 436; see Honea v. City Dairy, Inc., 22 Cal.2d 614, 617–618, 140 P.2d 369. Of course, 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.’ See also Burr v. Sherwin Williams Co., 42 Cal.2d 682, 687, 268 P.2d 1041.

Here, it appears that Atkins was more probably than not the person responsible for the accident.

The trial court found that the value of the building was enhanced in excess of $2,800 by reason of the representation of plaintiffs that they owned it and that such conduct constituted fraud upon the defendants. The record shows that Mrs. Howe was the owner of the building and the question of whether she would be entitled to have it repaired depends upon proof that its destruction was a proximate result of the negligence of defendants. Plaintiffs did not ask for damages to the real property in their complaint, and the matter of fraud was not alleged in the answer.

Since we have concluded that the doctrine of res ipsa loquitur is applicable in the instant case, and since the action should be retried, we do not deem it necessary to pass upon other questions raised.

The judgment is reversed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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