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District Court of Appeal, Third District, California.

Walter WEBB and Irma Webb, Plaintiffs and Respondents, v. STANDARD OIL COMPANY OF CALIFORNIA, a corporation; Floyd Wimberly; Hartford Fire Insurance Company; and Home Fire and Marine Insurance Company, Defendants,

Standard Oil Company of California, a corporation, and Floyd Wimberly, Appellants. HARTFORD INSURANCE COMPANY and Home Fire and Marine Insurance Company, Cross-Complainants and Respondents, v. STANDARD OIL COMPANY OF CALIFORNIA, a corporation, and Floyd Wimberly, Cross-Defendants and Appellants.

Civ. 8892.

Decided: March 21, 1957

Devlin, Diepenbrock & Wulff, Sacramento, for appellant Standard Oil co. Cooney & Littlejohn, Colusa, for appellant Wimberly. Stanley J. Gale, Sacramento, and Richard E. Patton, Colusa, for respondents Webb. Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, for respondent Ins. Companies.

Walter and Irma Webb brought this action against appellants to recover their uninsured loss and damages sustained by them when fire destroyed their residence in Colusa County. They charged that the fire was caused by the negligence of Standard Oil Company's agent, Floyd Wimberly, in the installation of certain Flamo gas tanks whereby Flamo gas (bottled propane gas) was fed into the burner of a certain Servel refrigerator. Respondents Hartford Insurance Company and Home Fire and Marine Insurance Company, who had insured the Webbs against loss and damage by fire in the total sum of $10,000 had each paid the Webbs $5,000 and were brought into the case as parties defendant under the right of subrogation. Each insurance company filed a cross-complaint against the appellants to recover the $5,000 it had paid. The case was tried by the court without a jury and judgment was in favor of the plaintiffs and cross-complainants. Appellants appeal from the judgment.

The Webbs owned a ranch and gun club on which was located the club house and residence building destroyed by the fire. They resided in this building. At the time of the fire Mrs. Webb was alone on the premises. Located in the building on the westerly side was a Servel refrigerator which was operated by bottled propane gas. This refrigerator had not been in use for about a year. The Servel refrigerator was cut into the wall between the washroom and the kitchen with the door almost flush with the kitchen wall and the bulk of it protruding back into the washroom. The washroom was 9 feet wide, 10 feet long and had a ceiling height of 8 1/2 feet. It contained two windows which were nailed shut. Located in this room was an electric motor and compressor unit for an electric refrigerator which was located on an outside porch, an electric washing machine, a disconnected old gas heater, and the Flamo apparatus consisting of a cabinet containing two tanks, a pressure reducing device called a regulator, a gauge indicating which of the two cylinders or tanks was in use and some tubing running along the floor to connect the refrigerator. When the Webbs purchased the property a portion of the Flamo equipment, including the cabinet, tubing and regulator, was contained in the building. Defendant Standard Oil Company claimed to be the owner of this equipment. At various times during the years defendant Wimberly repaired the equipment, furnished some new parts for it and claimed rental on said equipment for the Standard Oil Company. The metal tanks in which the Flamo gas was stored and delivered, at all times, were the property of the Standard Oil Company.

Mrs. Webb had trouble with the electric refrigerator and disconnected the cord and shut off the electric switch. She then phoned the Standard Oil Company and ordered Flamo gas for the purpose of putting the Servel refrigerator in operation. Between 6 and 8 p. m. on the night of June 12, 1952, appellant Wimberly delivered two tanks of Flamo gas to the Webbs' residence. He placed the two filled tanks in the cabinet in the washroom and connected one or both with the Servel refrigerator. He also brought a third tank partially filled, that had been on the porch, and placed it in the washroom for use in an emergency. After Wimberly turned on the gas Mrs. Webb asked him to check the unit for leakage. She told him that she could smell escaping gas when the tanks were last in use the year before. She suggested that he use soap to test the installation for leaks. He said he did not consider that necessary and proceeded to test the connections with burning matches and by smelling for the noxious odor of the gas. The test did not disclose any leaks. He then cleaned the burner of the refrigerator, tested the ‘lock up’ pressure of the refrigerator and then lit the burner. Before retiring for the evening Mrs. Webb checked the refrigerator and found it operating but not cold enough to use, so she shut the refrigerator door. She did not touch or disturb the installation of the Flamo unit. She did not notice anything wrong nor did she small anything. Next she closed the washroom door and retired. This was about 9 p. m.

Mrs. Webb slept on a porch on the easterly side of the building some 40 or 50 feet from the washroom. About 1:30 or 2:00 o'clock that night she was awakened by a heavy noise. She arose and went to the kitchen. She discovered there was a fire in the washroom where Wimberly placed the cylinders. The wall between the kitchen and the washroom was ablaze. She attempted to telephone the fire department but the fire had cut off the service. She then went for help in her car. As she went to the car she noticed that the blaze was either in the washroom or on the porch adjacent thereto. The premises were completely destroyed. Mrs. Webb did not know the cause of the fire. The only source of ignition was the burner in the refrigerator which was about 9 inches above the floor level.

There was expert testimony that Flamo gas is heavier than air and as it escapes from a cylinder it settles to the floor and spreads out and that it was only necessary for the gas to pile up to a height equal to the burner on the Servel refrigerator for an explosion to occur. There was also testimony that the escape of one cubic foot of gas would be sufficient, and while there would be air currents in the room the gas would not circulate and diffuse.

The trial court, in addition to finding specific acts of negligence and finding that such negligence on the part of the appellants was the proximate cause of the fire, also relied upon the doctrine of res ipsa loquitur.

Appellants contend that the proof was insufficient to establish that any negligence of either defendant proximately caused the fire or to establish the cause of the fire.

In determining whether the evidence is sufficient we must view it in the light most favorable to the plaintiffs. Rudolph v. Tubbs, 46 Cal.2d 55, 291 P.2d 913.

After Wimberly had made the test for gas leakage above mentioned, Mrs. Webb asked him to again check everything before he left. He then went in the kitchen, opened the door of the refrigerator, looked at it and said everything was ‘O.K.’ Wimberly at no time tested the assembly line after he pressed the button to let gas through the line; nor did he test the Flamo regulator; nor make any test whatsoever of the soft plugs for leaks. Wimberly admitted that he brought into the washroom, in addition to the two cylinders of gas, a third tank which was partially filled that had been on the porch, and made no tests of it for gas leakage. There was evidence that the soft plugs may become loosened in the handling of the tank. The record shows also that Wimberly violated express instructions of appellant Standard Oil Company as to the proper method of inspection. Its manual provides that in testing for leaks soapsunds or a light lubricating oil should be used; that matches never should be used. The manual also provides that ‘Under no circumstances will Standard Flamo cylinders or regulators be installed in the interior of buildings * * *’. It was admitted that these regulations were good, sound safety practice. There was also testimony that the installation made by Wimberly violated the rules of the Petroleum Gas Safety Orders in this respect: That the tanks and pressure regulator were placed within the enclosed four walls of the building; that no soap tests were made for gas leakage; that the tanks were within ten feet of the source of ignition (the burner on the refrigerator) and also that a storage tank filled but not connected to the system was stored within the same room. Wimberly was uncertain in his testimony as to whether he had connected both tanks to the system. There was also testimony that the circulation of air caused by the operation of the refrigerator would have a tendency to draw the gas pockets formed on the floor over into the lower part of the refrigerator, thereby igniting it.

The above facts and circumstances taken as a whole constitute substantial evidence from which the trial court could reasonably infer that Wimberly failed to properly check the tanks, tubing and regulator and as a result the fire was caused by leaking gas coming in contact with the burner on the refrigerator, and that appellants' negligence was the direct and proximate cause of the fire which destroyed plaintiffs' building and their personal property contained therein.

Appellants also urge that the failure of the trial court to specifically make a finding that an explosion occurred preceding the fire precludes a finding that the fire was caused by negligence on their part. With this contention we do not agree. Mrs. Webb testified that she was awakened by a heavy sound which she described as a ‘thump’ and that thereafter she went into the kitchen and discovered fire coming from the washroom where the installation was located. It is a reasonable inference that the ‘thump’ was the repercussion from an explosion. We believe it is common knowledge that a person suddenly awakened by some kind of a noise rarely is able to definitely describe it. The trial court in his memorandum opinion stated that Mrs. Webb was awakened by some disturbance. Implied, under the facts and circumstances of the case, it was an explosion.

Appellants also contend that the court erred in applying the Liquefied Petroleum Gases Safety Orders (California Administrative Code, Title 8, Sections 4900–5041) to the case to establish negligence. That such orders apply only to employer-employee relationship. These safety orders were issued in conformity with the provisions of sections 6312 and 6500 of the Labor Code. Safety order 4950 in part provides that all piping shall be tested after assembly and proved free from leaks at 20 psi; that the test shall be made with soapy water; that no open flame shall be used, and that all outlets shall be closed during the test. Section 4935 provides that no cylinder shall be located within a building enclosed on four sides, nor within five feet of a source of ignition. Section 4950 (b) provides that initial pressure-reducing devices shall be installed outside of buildings, unless such building is used exclusively for the housing of such pressure-reducing devices, and section 5005 provides that fuse plugs shall not be used for the relief of pressure.

That these safety orders were intended to not only protect employees but are also safeguards for the public generally against injury is now established law in this state. Pierson v. Holly Sugar Corp., 107 Cal.App.2d 298, 237 P.2d 28; Armenta v. Churchill, 42 Cal.2d 448, 453, 267 P.2d 303; Nungaray v. Pleasant Valley etc. Ass'n., 142 Cal.App.2d 653, 300 P.2d 285; Bragg v. Mobilhome Co., 145 Cal.App.2d 326, 302 P.2d 424. The safety rules were properly admitted in evidence.

Appellants next contend that the evidence is insufficient to support the finding as to the personal property damages. Mr. Webb testified that in his opinion the personal property destroyed by the fire was worth $31,000. While the trial court stated that Webb's testimony as to values was somewhat speculative, it nevertheless awarded the Webbs $12,000. Mr. Webb, being on owner of the property, was competent to estimate its worth, whether generally familiar with values or not. (19 Cal.Jur.2d 101.) It was for the trial court to decide what weight should be given to the testimony. We conclude that there was sufficient substantial evidence to sustain the finding.

Lastly it is contended that the trial court committed prejudicial error in refusing to order Mr. Webb to produce copies of his state and federal income tax returns covering the year of the fire to determine whether he placed a different value upon the property in claiming an allowable casualty loss.

That this court might have before it a copy of the Webbs' California income tax return for the year 1952 for the sole purpose of assisting us in determining whether appellants suffered any prejudice by reason of the trial court's refusal to order Mr. Webb to produce it at the trial, an order was made for the production of said return, upon the application of appellants. It is now a part of the record in the case. We have carefully examined its contents and compared it with other evidence and exhibits in the case, and upon doing so we find that the claim of loss, the property lost in the fire and the values thereof are identical to those claimed in plaintiffs' Exhibit No. 15, that is, the statement of loss and damage furnished to the Philadelphia Fire and Marine Insurance Company. Since the appellants already had the information they were seeking it follows that they could not have been prejudiced in not having the income tax returns before them at the trial.

We do not consider it necessary to discuss the doctrine of res ipsa loquitur as applicable to this case in view of the trial court's finding of specific acts of negligence and proximate cause.

The judgment is affirmed.

WARNE, Justice pro tem.

VAN DYKE P. J., and PEEK, J., concur.