SEELEY v. COMBS (1965)

This is an appeal from a judgment for damages for the destruction of a barn, hay, fencing, machinery and livestock, by a fire which the court, sitting without a jury, found was caused by the negligence of defendant Combs in hauling hay into the barn by truck.

Plaintiff Bolinger, manager of a ranch owned by plaintiff Seeley, made arrangements with Combs to haul hay from the field and stack it in the Seeley barn according to Bolinger's instructions. The barn was 60 by 60 feet, with a high central portion in which hay was stored, and a lower covered section at each side for livestock, used at the time as pigpens. Defendant and his helper stacked the baled dry oat and vetch hay in the barn after the truck was backed through a central door 20 feet high and 10 feet wide. On the morning of the fire hay was stacked flush with the door on both sides and in the passageway from the back to within 15 feet of the door, leaving a space approximately 10 by 15 feet surrounded on three sides by hay stacked to the rafters. The truck was being backed into this space when the fire started.

Defendant brought in the third load of the morning, swung the truck about in order to back into the barn, shut off the motor and released the ropes holding the load. He then started the motor, backed the truck into the barn which was strewn with loose hay, and when the loaded truckbed was completely inside the barn, heard his helper shout that the barn was on fire. Stepping out onto the running board, defendant saw smoke coming from the right rear side of the truck. He got back into the cab, drove the truck clear of the barn, stepped out, looked back and observed flames leaping up the hay on the passenger side of the truck. At the time of trial the whereabouts of defendant's helper was unknown, so we do not have the benefit of his testimony.

Pursuant to Code of Civil Procedure, section 634, defendant requested special findings of fact. After a hearing thereon and on objections to proposed findings, the trial court found:

‘V. That on the 6th day of June, 1962, the defendant JOHNNY COMBS negligently drove said motor vehicle into the said barn which contained inflammable material, to wit: loose hay and straw at which time hot gas and sparks emanated from the exhaust system of the truck, which caused the said hay to ignite, proximately causing the damage hereinafter set forth.’

Since no one saw the fire start, the finding, if it is to be sustained, must rest on circumstantial evidence. Defendant argues that it cannot because, first, fundamentally specific findings of causation are incompatible with the doctrine of res ipsa loquitur; second, even though res ipsa loquitur is applicable, the circumstantial evidence reflected by the record is not substantial.

As to the first point, neither side has cited us a case, and we find no authority construing the effect of a specific finding of causation upon the applicability of res ipsa loquitur. There are two analogies, however, which point toward an answer to the question. One is the line of cases pointed up by Di Mare v. Cresci, 58 Cal.2d 292, 299, 23 Cal.Rptr. 772, 373 P.2d 860, holding that the introduction of evidence of specific acts of negligence does not deprive a plaintiff of the benefit of the doctrine of res ipsa loquitur unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law so that justification for resort to the inference of negligence is eliminated. The other line of cases uphold jury verdicts by applying the doctrine of res ipsa loquitur even though the doctrine was not invoked in the trial court or on the appeal, and in the absence of instructions on the subject. The Supreme Court said, in Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414, at page 418, 289 P.2d 226, at page 228:

‘While it would appear that the doctrine of res ipsa loquitur is clearly applicable as between plaintiff and Feb and Transit Lines, plaintiff did not invoke the doctrine either in the trial court or on this appeal. It may be relied upon, however, to support a judgment even though plaintiff offers no jury instruction on the subject and none is given.’

With these principles in mind, we turn to the finding in question and note, first, the classic rule that findings must state ultimate facts; they should not relate the evidentiary facts relied upon by the court to reach the ultimate facts. We see no reason for holding that a court cannot derive a specific ultimate fact from circumstantial evidentiary facts. If the critical evidence as to an issue is largely circumstantial, as sometimes happens, it is the only way that a court can comply with Code of Civil Procedure, section 634 and make specific findings of ultimate facts. Had the case been tried to a jury rather than to the court and a plaintiff's verdict returned, there is no question that res ipsa loquitur would apply. (Wolfsmith v. Marsh, 51 Cal.2d 832, 835, 337 P.2d 70, 82 A.L.R.2d 1257; Keena v. Scales, 61 Cal.2d 779, 783, 40 Cal.Rptr. 65, 394 P.2d 809.) By parallel reasoning, the doctrine of res ipsa loquitur applies to circumstantial evidentiary facts from which specific ultimate facts are inferred by a trial judge. We find support for this reasoning in Bruce v. Ullery, 58 Cal.2d 702, at page 711, 25 Cal.Rptr. 841, at page 846, 375 P.2d 833, at page 838, wherein the Supreme Court said:

‘Furthermore, negligence may be proved circumstantially like any other issue of fact, and indirect evidence may outweigh direct evidence on the contested point. [Citation.] As we said in Gray v. Southern Pacific Company (1944) 23 Cal.2d 632, at page 641, 145 P.2d 561, at page 566: The jury ‘could reject positive testimony and accept circumstantial evidence as proof of the facts, as it is elementary that direct evidence may be disbelieved and contrary circumstantial evidence relied upon to support a verdict or finding.’'

Nor does the fact that this case involves a fire make the doctrine of res ipsa loquitur inapplicable. In Greening v. General Air Conditioning Corp., 233 A.C.A. 657, at page 664, 43 Cal.Rptr. 662, at page 667, the court observed:

‘Fire damage cases have no peculiar characteristics isolating them from res ipsa loquitur.’

Before considering the sufficiency of the evidence in detail, we note that the three conditions upon which the applicability of res ipsa loquitur rests were present. (See Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258.) First, fires do not ordinarily occur during the loading or unloading of bales of hay in a barn, in the absence of someone's negligence. (Keena v. Scales, supra, 61 Cal.2d at p. 782, 40 Cal.Rptr. 841, 375 P.2d 833.) Second, the barn, the hay, and the truck were within the exclusive control of defendant at the time the fire was discovered. (Shahinian v. McCormick, 59 Cal.2d 554, 559, 30 Cal.Rptr. 521, 381 P.2d 377; Exploration Drilling Co. v. Heavy Transport Inc., 220 Cal.App.2d 397, 33 Cal.Rptr. 747; Hansen v. Matich Corp., 234 A.C.A. 140, 44 Cal.Rptr. 149.) Third, there was no evidence that any act on the part of plaintiffs contributed to the cause of the fire.

The evidentiary facts upon which the trial court predicated the finding of ultimate fact to which defendant objects, disclose that defendant was hauling the third load of baled hay that morning with resultant hot exhaust when he backed the truck into a 10 by 15 foot area surrounded on three sides by readily combustible dry oat and vetch baled hay stacked from the floor to the rafters, cutting off any circulation of air. Further, the high roof in the center section of the barn sloped downward to cover the cattle sheds on each side, so that the sides of the roof were lower than the center, thus trapping the hot air. The truck was closing up the small area, backing over a floor littered with fragments of dry oat and vetch hay that was even more combustible than the baled hay because of its looseness and tendency to waft from the force of the exhaust.

Defendant introduced evidence that the truck muffler protected against sparks and an experiment indicating that hot gas from the exhaust would not ignite a gasoline-soaked rag. The evidence does not reflect that this experiment was conducted under conditions similar to those existing at the time the fire broke out. There is nothing to indicate that the truck had been driven the equivalent of three round trips, picking up and unloading hay, with the consequent heating from heavy-duty hauling. No dry oat or vetch hay was placed near the exhaust, nor was the test conducted in a 10 by 15 foot area surrounded on three sides by baled hay stacked to the rafters and covered by a sloping roof that prevented circulation of air and, further, with the truck gradually backing into and filling up the 10 by 15 foot area.

Defendant points out that the fire started on the right side of the truck, while the exhaust pipe and muffler were located near the left side, but that is not conclusive since gases being forced out the exhaust might blow the hay fragments in any direction. Defendant also argues that hay is frequently ignited by spontaneous combustion. We are not told, however, whether spontaneous combustion occurs in a cleared area such as that between the truck and the stacked hay, as well as in the interior of a stack of hay where gases are generated by compression and heat.

The possibilities put forward by defendant do not, as a matter of law, demonstrate that the fire could not have been caused as found by the court under the doctrine of res ipsa loquitur. (Rose v. Melody Lane, 39 Cal.2d 481, 487, 247 P.2d 335; Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 622, 155 P.2d 42, 158 A.L.R. 1008.)

On the other hand, the evidence that supports the findings is substantial, even though it is circumstantial. In Viera v. Atchison, Topeka & Santa Fe Ry. Co., 10 Cal.App. 267, at page 269, 101 P. 690, at page 691, the court in considering circumstantial evidence under circumstances quite similar to those before us said:

‘We apprehend that there are few cases of damage caused by a defendant's negligence in setting fire, or allowing it to escape, in which anyone actually saw the fire at the moment it escaped, or the place when it first started. It was the duty of the jurors to ascertain the truth as to every fact in issue, and from experience and common knowledge to make reasonable inferences from such fact or facts. The burden was upon plaintiff to prove that the fire was caused by defendant, that it was also due to defendant's negligence, but such proof need only be by a preponderance of evidence, and such as to satisfy and produce conviction in an unprejudiced mind. The law does not require demonstration or absolute certainty because such proof is rarely possible. Moral certainty only is required. We must call in aid of the verdict all deductions which the jury could make from the facts proved. Nearly all cases are determined on the reasonable probability of the fact being as found. Human laws and institutions are not perfect, and with the most careful vigilance of the judge, and the most conscientious discharge of their duty by 12 men duly sworn, the final result in most cases is but an approximation. In the present case it has not been demonstrated beyond doubt that the fire was caused by sparks escaping from defendant's engine, but a fire did occur, and originated on or near defendant's right of way, on which was a large quantity of dry grass. It was seen almost immediately after defendant's engine had passed. Plaintiff's property was destroyed. The reasonable probability that the fire was caused by sparks from defendant's passing engine has been determined by the agreement of 12 men. This is one of the methods the law has provided for the settlement of questions of fact, and we cannot set aside the verdict of the jury when supported by such evidence as herein indicated.’

(See also Dibble v. San Josquin Light & Power Corp., 47 Cal.App. 112, 190 P. 198; W. B. Camp & Sons v. Turner Steel, etc., Co., 141 Cal.App.2d 569, 571, 297 P.2d 125.)

Once it is determined there is substantial evidence to support the inference drawn by the court, the inference is itself evidence. (Ales v. Ryan, 8 Cal.2d 82, 99, 64 P.2d 409; Druzanich v. Criley, 19 Cal.2d 439, 445, 122 P.2d 53; Gerhardt v. Fresno Medical Group, 217 Cal.App.2d 353, 361, 31 Cal.Rptr. 633.) In these circumstances the rule governing appellate review is as stated in Smith v. Bull, 50 Cal.2d 294, at page 306, 325 P.2d 463, at page 471.

‘When there is substantial evidence or any inference to be drawn from the evidence to support the findings of the trial court, an appellate court will not make determinations of factual issues contrary to those made by the trier of fact.’

The judgment is affirmed.

I dissent. Res ipsa loquitur, in my opinion, cannot apply to the facts shown in the record; consequently, there is a lack of substantial evidence to prove negligence on the part of appellant, or a causal connection between such negligence and the fire. I would reverse the judgment.

STONE, Justice.

RALPH M. BROWN, J., concurs.