150 Cal. App. 2d 540 | Cal. Ct. App. | 1957
Appeal by defendant Ideal Heating Corporation from an order granting plaintiffs’ motion for a new trial. The action is to recover damages which resulted from a fire that destroyed part of a building and personal property. The fire was caused by the alleged negligence of defendant Lupella, an employee of defendant Ideal. In a jury trial, judgment was for defendant Ideal. (Lupella did not appear in the action—apparently he was not served with summons and complaint.) The motion for a new trial was granted on the grounds of insufficiency of the evidence, and errors of law.
There have been three trials of the action. The first trial was in 1951, before Judge Nourse without a jury, and judgment was for plaintiffs. That judgment was reversed on the ground that the findings did not support the judgment. (DeMirjian v. Ideal Healing Corp., 112 Cal.App.2d 251 [246 P.2d 51].) The second trial was in 1953, before Judge Willis with a jury, and judgment on a directed verdict was for Ideal. That judgment was reversed on the ground that there was sufficient evidence to support a verdict for plaintiffs and that the court erred in directing a verdict for Ideal. (DeMirjian v. Ideal Heating Corp., 129 Cal.App.2d 758 [278 P.2d 114].)
On April 12, 1946, plaintiffs owned a one-story double building in Los Angeles. One-half of the building was leased to and occupied by Ideal, which was engaged in manufacturing floor and wall furnaces and heaters. The other half of the building was occupied by plaintiffs, who were engaged in manufacturing lamps. About 2:30 p. m. on that date a fire, which originated in the part of the building occupied by Ideal, resulted in total damages to plaintiffs in the stipulated sum of $122,081.
The facts as to the cause of the fire are stated in detail in DeMirjian v. Ideal Heating Corp., 129 Cal.App.2d 758 [278 P.2d 114], It may be stated generally that the fire was caused under the following circumstances: Lupella, an employee of Ideal, was on his way to the washroom to use its
Ideal’s vice-president testified that the drum, from which Impelía was attempting to fill his cigarette lighter, had been maintained by Ideal as a container for spatter thinner about three years prior to the fire.
Donald J. Lavenbarg, called as a witness by plaintiffs, testified that he is chief of the Fire Department of South Pasadena, and had been a battalion chief of the Fire Department of Los Angeles; that spatter thinner is a ‘1 Class 1 flammable liquid”; that at the time of the fire it would have been a violation of Los Angeles City laws to use, on a 50-gallon drum of inflammables inside a building, a spigot of the type used by Ideal; that if a spigot of the type used by Ideal on the drum of thinner were partially opened it would not close automatically when the pressure is taken off but would remain open.
Appellant (Ideal) contends that the court abused its discretion in granting plaintiffs’ motion for a new trial.
One argument in behalf of appellant is that the evidence was insufficient to support a judgment for plaintiffs. On the second appeal the court said that the evidence at the second trial (before Judge Willis) was of sufficient substantiality to support a verdict in favor of plaintiffs. The evidence at the third trial (involved here) was substantially the same as the evidence at the second trial, except there was testimony by Fire Chief Lavenbarg at the third trial. (He did not testify at the second trial.) His testimony related to the dangerous quality of the liquid, the nonsafety of the spigot, and city laws regarding the use of a spigot on a drum of inflammables. The evidence herein was sufficient to support a judgment for plaintiffs.
Appellant also argues that since this court held, on the second appeal, that the questions as to whether Lupella’s act was done in the course of his employment and whether Ideal exercised ordinary care in maintaining the thinner were questions for the jury, the trial court on the third trial was bound to follow “the law of the ease” as announced in that decision and to respect the verdict (in favor of Ideal) upon those questions. On the second appeal the court said, at pages 772-773: “[A]n inference can reasonably be drawn from the evidence that Lupella’s act was done in the course of his employment. Whether such an inference should be drawn was a question for the jury,” and “whether defendant [Ideal] exercised ordinary care in maintaining the highly volatile, inflammable, and dangerous thinner in the manner in which it did was a question for the jury.” The second appeal was by plaintiffs from a judgment for defendant upon a directed verdict, and the question on appeal was whether there was evidence of sufficient substantiality to support a verdict for plaintiffs. The decision on that appeal was that there was sufficient evidence to support a verdict for plaintiffs, and that a motion for a directed verdict (upon the evidence at the second trial) should not have been granted. The expressions in the opinion therein that certain questions were questions “for the jury” did not mean that any verdict rendered thereon by a jury would be determinative of those questions, and that on a motion for a new trial the trial judge would not be permitted to consider the sufficiency of the evidence. The decision on the second appeal, with reference to the sufficiency of the evidence upon the motion
Appellant argues further that on the second appeal the court held that there was sufficient evidence to support a judgment for either party; and that the trial court in determining the motion for a new trial was bound by “the law of the case” as announced in that decision with respect to the sufficiency of the evidence. This argument is similar, in legal effect, to the argument just discussed, and the statements made with reference to that argument are applicable here.
“Upon an appeal from an order granting a new trial, all presumptions favor the order as against the verdict.” (Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169 [153 P.2d 338].) As above stated, the trial judge was authorized to judge the credibility of the witnesses, weigh the evidence, and draw inferences opposed to those drawn by the jury. “The granting of a motion for a new trial based upon insufficiency of the evidence ‘rests within the discretion of the trial judge to such an extent that an appellate court will not interfere unless an abuse of discretion clearly appears.’ ” (Thompson v. Blum’s, Inc., 139 Cal.App.2d 140, 144 [293 P.2d 82].)
The trial judge did not abuse his discretion in granting the motion for a new trial on the ground of insufficiency of the evidence.
Appellant contends further that the issue of negligence as set forth in the first five causes of action of the second amended complaint were adjudicated in the first trial (before Judge Nourse); that the decision on the first appeal is the law of the ease and estops plaintiffs from further prosecuting
Appellant contends further that the issue as to its alleged negligence was adjudicated in DeMirjian v. Ideal Heating Corporation which was filed May 16, 1946. The complaint in that case was entitled “Unlawful Detainer.” The action was to recover possession of the property on the ground that the lease under which Ideal held possession was terminated by the fire. Judgment in that case was for Ideal. (See DeMirjian v. Ideal Heating Corp., 83 Cal.App.2d 400 [188 P.2d 834].) This contention of appellant was pleaded in its answer herein as a sixth special defense. It might well be
The order granting the motion for a new trial is affirmed.
Shinn, P. J., and Vallée, J., concurred.
A petition for a rehearing was denied May 29, 1957, and appellant’s petition for a hearing by the Supreme Court was denied June 26, 1957. McComb, J., was of the opinion that the petition should be granted.