*1 May 12, In Bank. A. No. 21048. 1950.] [L. Respondent, v. ROYAL REALTY FINNEGAN, DOROTHY Appellant. (a Corporation), COMPANY 1950,] May 12, In Bank. A. No. 21049. [L. Respondent, v. ROYAL REALTY MERCHUT, SOPHIE Corporation), Appellant. (a COMPANY Gibson, Crutcher, Dunn & Gallagher, B. Norman S. Lasher Sturdy Appel- Dunn and Frederick H. for Sterry, C. Gerold lant. Ingram &
Walker, Meyers, Moser, Parker, Stanbury & Reese Stanbury Respondents. for Raymond G. appeals taken CARTER, J. are defendant, These Bealty corporation, judgments Boyal Company, a plaintiffs verdicts of in two actions for entered injuries. complaints The damages named personal Helbush, Herman its president. appellant defendants the plaintiffs against appellant The verdicts were favor of the defendant Helbush. corporation, favor The together. and tried for trial The actions were consolidated appeals have been submitted on two one set briefs and questions. involve identical January 20, cases arose out of fire which occurred on in a workroom in located at the corner Angeles.
Wilshire Boulevard and Alvarado Street in Los Appellant corporation was the lessor of the second floor of *2 building. Noll, doing Company, Norman business as Noll & The 22, 1937, was lessee. lease was executed on June for 1942, July expire a term which was to provided and premises were to be used for “the of business manufactur- of ers and equipment, dealers club furniture and for and purpose” no other and “That use, permit the lessee will not or used, premises, part any to be the said thereof, or purpose purposes or purpose purposes other than the which leased, the said are demised and let unto lessee, specified.” as hereinbefore expiration After the lease, Noll held over tenant from month to month under possession the terms of the day lease and was in on the of the fire. At time fire, employees of the seven Noll’s were building. in the seven, death, Of these three met their and respondents horribly these two were Respondent burned. Merchut, pretty girl, who was once a is now a hideous carica- surgeons ture her former self. Plastic have been unable replace eyelids, her possibility and there is the that her eyesight permanently Respondent will be impaired. Finne- gan’s badly hands and they arms were so burned that are now useless and she permanently is thus disabled.
Noll, lessee, principally engaged was in the manufacture dice celluloid. Cellulose tetranitrate blended with camphor produce highly celluloid which is a inflammable material. When burns, rapidly celluloid it does so as it and burns gases it emits the of nitrogen, hydrogen, carbon and and various combinations of gases, these all which are hot and toxic in that burn the mucuous membrane. Cellu- shavings loid and burn dust faster and with more violence than celluloid in ignite form solid and will instantly contact with flame. explosive ignition Celluloid is its degrees temperature, Fahrenheit, without contact with flame. premises occupied by floor of the Noll was upper rooms, and “work- two “showroom”
divided into two rooms were double doors which room.” Between these than outward from it. into the workroom rather opened had Against side, these doors on the workroom Noll one of register cash placed a heavy on which was table placed a on the of this exit effectively blocking one-half thus the room. only way out of day fire was celluloid were particles of dice, small In the manufacture had col- particles and these from the cubes drilled or shaved shavings Dust and the floor. the machines and on lected on and had with electric blowers off the machines were blown clothing, hair curtains, walls, floor and the shelves, settled on equipment was no suction persons of the workers. There and At dust in the room. any kind which to remove the shavings dust, day, refuse, the close of each which were up employees and into sacks swept put against found it convenient the wall until Noll then stacked four away. them At the of the fire there were to take time shavings against north wall and dust stacked such sacks immediately doors, a half full sack east of the double Finnegan’s Beside the sacks there under Mrs. machine. addition, In shavings full open trash box dust. pounds stored in there were over of cellulose nitrate only offered the ventilation room. The doors windows Noll conducted parties conceded the room. It is *3 grossly negligent his in a manner. business in afternoon when The fire about o’clock started day. Finnegan preparing Mrs. workers were to leave for leading standing was about 6 feet from the double doors or 7 just Merchut, who into the showroom and had asked Miss help her. room, was in the southwest corner of she could Reuter, employee, standing Mr. another was close to where Finne- stacked, the sacks were and made some remark to Mrs. gan. object, As turned him saw some which she toward she through identify, fly she could not the air and land in the immediately hit cardboard trash box. Flames shot forth and causing explosion. spread A the sacks sheet of then fire entire The over the room. smoke was intense. following points appeal:
The are raised on this Appellant (1) The Ordinance: contends that certain sec improperly No. in tions of Ordinance 87000 were received duty they part evidence created as no on its to these re spondents proof that there is violation no that the sec any way injuries; tion in respondents’ thereof contributed giving refusing court in in trial erred and certain structions with reference thereto. Negligence:
(2) Appellant that it no contends owed respondents to these under the common law.
(3) Contributory Negligence Ap- and Assumed Risk: pellant law, respondents a matter of contends that as these contributory guilty negligence and assumed employment. their risks involved in Damages:
(4) Appellant contends that there was no evi- jury find, indulging dence which the could without conjecture what, part speculation, respondents’ and in- juries solely to are attributable its acts or omissions.
(5) Special Damages: Appellant trial contends admitting proof respondents’ special court erred in dam- ages instructing and in thereon.
(6) precedent: (Neuber Royal Neuber case The Realty Co., Cal.App.2d 596 501]). Appellant (an arising contends that the Neuber decision action out fire) holding provisions same was correct in that the various (with exception of the ordinance section) of the “door” application “building building” had no as a but were occupancy buildings concerned with the use and of such and placed the corporation legal duty defendant under no prevent Noll, the violations of tenant, ordinances either the employee. Appellant or his does not the “door” concede that applicable. section is
(7) The Instructions.
The Ordinance city Angeles Ordinance No. of Los ef- became January 1, building 1943 and constituted fective a new code amended “old” “in expressly code its en- tirety” everything repealed in the old ordinance and not contained the new one. 91.0101(b) Purpose. purpose : this article
Section safeguard limb, health, property public life or wel- by regulating controlling design, construction, fare quality materials, occupancy, location and mainte- use buildings and nance of all structures erected or to be erected city. within the provides part person con- 91.0102 that: No shall
Section *4 occupy struct, alter, repair, demolish, remove, move, use, or any building structure, maintain, city, within the or or thereof, except provided by this code. Also that portion as provisions “All Code shall be limitations of this safeguarding health, property wel- limb, public life or ’’ fare. Sub-Group Occupancies: 91.0502(e): Croup E.
Section Every explosive E-l: room in which materials in lots of more eight pounds weight liquids or flammable than are manufac- any process kept tured or used in in containers; or unsealed cutting film film laboratories, rooms, also and cellulose-nitrate processing rooms. 91.0505(b) Groups Every : A Group and E:
Section A every Occupancy Group Occupancy E shall be housed Type building. I (Special Requirements 91.0642: Section E-l Sub-Group Occupancies) : Every
(b) part every building Exits. shall have two separate seventy-five exits and shall be within feet (75') of a doorway opening into an exit.
(c) Explosive Storage. Every Film and Material room appropriated storage explosive to the film materials, or pounds cellulose nitrate in of 100 excess shall conform to the requirements (Film of division 42 of Explosive this code Vaults), specified unless stored in film as cabinets article 7 chapter Angeles Municipal of the Los Code.
(i) Fire-Extinguishing Apparatus. Every housing room Sub-group Occupancy sprinklered. E-l shall be (a) Scope. Every
Section serving 91.3303. door as an aggregate exit from an floor area of more than one thousand square (1,000 sq. ft.) feet shall be constructed and installed conformity requirements with the of this . . section. . (c) Every open landing Location. door shall on a at least equal length in width and to the width of the door. Doors any position when in shall not reduce the width of an exit- way thirty (30")- (d) Every to less than inches Details. self-closing. door to an exit serving enclosure shall be Doors open only shall eodts in the direction exit and shall be openable key. Sliding from the inside without the use of rolling doors and shall not be used doors. shutters on exit [Emphasis applies This section to all build- added.] [Note: ings requisite regardless having space amount of floor the use made thereof.] Application Existing (entitled 91.0103
Section Build- ings) provides (a) Any portion any build- Maintenance. ing which, any cause, or structure has become a menace limb, health, property, public to life or welfare shall be or original safety, restored to its or stability condition of regulations Code, or shall made to of conform por- A [Emphasis shall be demolished. added.] limb, tion life or presumed thereof shall be to be a menace to *5 following if of health, public or welfare either property any fire-protective con- exit, ... 2. When conditions exists: provide degree safety required not struction or device does health, or wel- limb, property public life or security of to (c) Change Occupancy. occupancy . The use or fare . . of any changed occu- any existing of be to use or building building Type for a of pancy permitted Code the same this area, occupancy requirements. Construction, of location require- any to portion building If does not conform the of portion proposed occupancy, ments of Code this shall be made to conform. (a) In order Section 91.0315 Required. Certificate welfare, health, property public
safeguard life, limb, every building or structure shall conform to construction Occupancy housed requirements Sub-Group for the to be . . . therein, put or use which the structure is to be for the or portion thereof shall be used building No or structure or occupied Occupancy of has been issued until a Certificate therefor.
Exceptions existing building portion : No thereof 1. occupancy require Occupancy unless the shall a Certificate of original for which housed is different from that therein Change Occupancy. Each permit ...(b) was issued. of sub-group change occupancy of classified in a different one require Occupancy whether or shall new Certificate required code. are alterations Occupancy, application for such Certificate When made (of Department Building and Superintendent inspector The Safety) inspection to be made. shall cause necessary, or applicant of those alterations shall advise the Report Compliance necessary, make a none is shall (c) When re- Superintendent, Certificates. Issuance receipt section, and after the quired (a) of this subsection Superintendent Reports Compliance, approval Occupancy, without Building issue shall a Certificate of building. Upon payment of charge, to the owner of by the may be secured duplicates of the Certificate each, $1.00 architect, engineer, contractor, permittee or tenant. owner, respondents claim were the ordinance which sections of convenience, called the by appellant will, violated “sprinkler” section, exit” section, “door” the “double occupancy” section, “change section. appli- generally are not
Appellant claims these sections only buildings to be applied cable the ordinance because apply erected in future and was not intended to to exist- ing buildings. It is also contended that the “door” section apply space in question did not because floor did not total 1,000 square feet, and that, assuming it did no apply, there is showing fact door opened that the inward contributed ’ ‘‘ ’’ respondents injuries. It is contended that sprinkler only applicable particular section is awhen use is made of premises and it, lessor, as owner and is not liable for the premises. use a tenant makes of
It appellant’s would seem that contention that the Build- ing apply only buildings Code was to to be erected after its effective date cannot By express be sustained. the terms of the in question, ordinance the old is code amended entirety everything its and therein contained which is not contained in repealed. the new is ap- code To sustain pellant’s contention have removing would effect of the from operation the every building the ordinance erected in city the Angeles Los before 1943 without reference to clearly its condition. appears very from the terms of ordinance that this could not have been the intention of its framers who its purpose declared safeguarding to be life, property public and by welfare regulating and control- ling design, occupancy construction, use and of all build- ings and structures erected or to be erected city. within the (Section 91.0101.) We find also that section 91.0103 is en- “Application Existing titled Buildings.” (f) 91.0403 Section the ordinance defines floor area in square feet within the area the exterior walls of a build- including ing courts, but area of inner shaft enclosures, It was stipulated or exterior walls. that the floor area of the 1,000 square (1) exceeds feet if workroom the area of the stair- (2) portion either the of the by well floor covered ledge along balustrade or the the inner surface of the exterior included, but opening wall are the stairwell and either the by portion occupied square footage balustrade ledge excluded, 1,000 is the floor area square was less than By feet. the terms of the section neither the area of the portion nor by stairwell the floor covered the balustrade ledge along nor the inner surface of the exterior wall is appears excluded, and thus square footage it obvious that the 1,000 square of the workroom exceeds feet. As the floor area 1,000 square feet, serving exceeded door re- as exit was quired open outward without reference to the use to which premises put. were power delegated municipality,
A
under the
creating
state, may
pro
duties for
enact ordinances
very generally
persons
property,
tection of
and it is
held
resulting
liable
who violate such ordinances are
those
injury
conduct of
reasonable
to others.
standard of
may
man
a statute or ordinance. The
be established
legislative
negligence
violation of such a
enactment
plaintiff
persons
itself if the
one of a class of
whom the
is
the harm
oc
protect
statute was intended to
which has
(Har
type
prevent.
was intended to
curred
of the
which it
Orange
Joffe,
ris v.
Appellant’s injuries respondents’ and the in between connection causal upheld light following- cannot be ward-opening door (whose and hands and arms Finnegan face testimony Mrs. “ leading from the Q. was the door work burned) : And talking we been the one have about to the showroom room *7 time the fire ? A. was occurred open closed at here, you get in these did Q. abouts closed, sir. Where my got part A. I worst your to hands these burns (Reuter) . . . “He was directly at the door.” right burns him, help him from the flames on and hollering for me to running panic in a and girls and all started thereafter all a mass I to the door. It was crawled over hollering, and got I got—when door, I felt this there, I of flames and up top me, and I reached pressure people upon of these my hand, right and on knob in it slid down grabbed the and pulled up grabbed I around and again; it but pulled Ias finally got open I door down, and when reached again, and I to my waist. tried had her arms around Merchut Miss weight, I felt the dead but off me when could throw her arms open. time I tried to got the first finally I door not. forgot I panic and which In excitement open it outward. got I finally got open it and open, would but way the door right. Q. me. All Let Merchut after pulled Miss out opened way open. A. It which did that.door you, ask me pull get Q. is, it to out. That I had to inward me. toward A. That is swung correct, it the workroom ? sir. inward into two-way open door 1 Did out? A. Q. No, it a it also sir. Was you Q. goes saying highly it were I assume without excited Q. ? you Yes, sir, A. I And while were there at the door was. you way you recall, got there, which door did when did Q. open? No, attempted open You it first A. sir. to way? me, you know, get I tried it from push A. out quite panic . There a bit of there at the I . . was door. felt every people pnll me from these which direction and me shove in trying down ... I was concerned to find the little knob get myself. out there so I could I knew—I was aware kept ‘I hollering, Miss Merehut because she am burning’, my had her hands waist, she around and I tried to tear loose, got them and of course I when out she still her had my Q. By Stanbury (Counsel hands around waist . . . Mr. you, plaintiffs) : yourself, doing anything Were at the trying get except No, door out? A. all sir; that is I was trying Q. to do. And in attempting get out, you were your using Q. hands? A. Yes, sir. you doing What were your ? with hands A. Part I using time was this one my protect eyes, and other one groping around for Q. right. the little small you knob. All your Did use hand you got Yes, when hold of the knob ? I sir, pulled A. it in and got Q. Now, out. was it hot around that Yes, door? A. sir, Q. it was all flames. Were there you flames around got you the time Yes, Q. there? A. you get your sir. Did Yes, got my hands burned? A. I sir. hands all burned, and got out, my at the time I why, hands were bleeding, cut, all falling the flesh was off them. My face was I swollen, and bursting could feel a and cracking sensation Q. my skin. Was there anything wrong your hands No, ? Q. before the fire A. you any sir. way Have telling you long us how were at you that door before got out? A. It eternity seemed like an to me I when was there at the door Q. . . . fire Before the what substance inwas that central panel of those ? A. Q. doors Wood . . . And at the time this started, any fire was there obstacle or obstruction kind you doorway? between A. No, Q. By sir . . . Mr. Gallagher (Counsel defendant): Now, just *8 matter a second after explosion the occurred you before caught fire, on wasn’t it? A. That is correct. right I was to the door close line fire, myself the and I threw Q. out. In other words, you were on fire you before could right I hardly Yes, in line with move at all? A. was the Q. Now, the smoke was so thick and dense over explosion. yon it, vicinity crawling were toward the door you door, not that ... A. That that could see isn’t true? right. Q. By Gallagher: your progress Mr. And while crawling along you bumped against floor, the table on register Yes, right which the cash sat? A. because it was Q. to table next the door. You could not see the or cash right? register smoke, there on isn’t account right. Q. you got you That Now, door, A. when to the stood you right? Q. A. That is up, isn’t that corerct. And could flames not see door or doorknob on account smoke, there, right? yes. smoke isn’t A. flames and Q. got point you thought you You over to a where were close you feeling door, to the and did start knob? A. Well -Q. you push try open? first A. When Or did to the door got just there, you see, I first it was a matter of seconds from myself door, time I threw I hit the be- to floor until very it, got push I up cause was near and then I and tried to Q. my way you open, Then after to door push out. tried you remembered, your it least came into mind opened right? isn’t inward, door A. At the moment that, panic, trying push like I was it would concerned in I work, felt so around and had hold of the knob several my times, only slipped it, but hands off time really grabbed got I open.” I the knob door Q. Stanbury) : (By Mr. as follows: testified
Miss Merchut to the fire out? A. I ran broke you when the did do What you say door, mean you ran to you Q. When door. right elevator near the A. The exit door what? the door to ? you get into the flames did Q. Now, whereabouts there . . . Q. How close my door. way to the I was on A. When steps, about of a few Oh, just a matter A. you? were door Q. you got And when away door. from the seven feet six or being there? anyone else you conscious of were to the door you what Q. see Finnegan And could was there. Mrs. A. struggling get out, Trying A. Finnegan doing ? was Mrs. anything? do, you Q. What did trying get out. there I you A. do? Q. What did open the door. I tried to A. open? A. way that door Q. Which did pushing it. working you had been Q. During the time opened inward. opened? IA. the door you out which way found there hadn’t open you trying Why Q. opened inward. knew it Finnegan I door and Mrs. A. came When outward?
419 struggling it, suddenly panicky with I was there became realizing trapped, I I I pushing, guess, was and started trying my door, flames, and face to shield from the and opened Finnegan got Q. (By Mrs. door and out . . . Mr. Stanbury) Now, why you try : didn’t pull inward, the door yourself? . . . The Well, sir, get Witness: when I did Finnegan door, struggling it, then, you Mrs. was and know, forgot, panicky I I became trapped and realized I was pushing against Q. (By and started it. Mr. : Stanbury) You just you forgot doing? Q. what A. sir. Yes, were You were Yes, Q. you A. I excited? was. When were at the there door, what was like so far as whether it was in flame or not Well, hot, around there ? A. there I was flame and felt my my Q. long you face burning, arms. How ? there ItA. Q. seemed like hours to me. It seemed like hours to Gallagher: you? Yes, A. . sir . . Mr. Merchut, Miss so you you know, Finnegan far as and Mrs. were the first two people actually got who workroom, out of that isn’t right? Q. your A. Yes, sir. according And did you, best recollection, might I possible you realize it not be go exactly, first, remember out did Finnegan go or Mrs. out Q. first? That is say, A. hard to sir. You cannot tell that? A. I Finnegan opened know Mrs. the door and I went out.” or not
Whether
there
awas
causal connection between
the violation of the “door” section of the ordinance and the
respondents’ injuries
question
jury
of fact for the
whose
determination will not be
on appeal
disturbed
when there is
support
substantial evidence in
thereof.
(McEvoy v. Ameri
Corp.,
can Pool
sole injuries, cause but it is suffi cient that it be contributing one (McEvoy causes thereof. Corp., supra; Sawdey v. American Pool v. Producers’ Co., Milk Cal.App. 467, 684].) 107 480 injury P. Where [290
420 negligence by and distinct acts of separate from two
results
simultaneously and
operating
concurrently,
persons
different
recovery may
against
be had
causes
proximate
both are
responsible persons.
(Sawdey v. Produc
either or both
Angeles Ry. Corp.,
Hunt v. Los
110 Cal.
Co., supra;
ers’ Milk
745];
McGrew,
Cal.App.
v.
P.
Holahan
App. 456 [294
Baumsteiger,
Cal.App.
v.
P.
Corvello
Corp,
; McEvoy
supra;
v.
Pool
West
P.2d
American
484]
City
Angeles,
The “double section: exit” made was time tenant was there At the the lease to the flight steps a led to a of second exit in room. This exit from down which went there down into the storeroom which flight basement steps another to a door of opened period alley. during onto At some time heavy planking over the lease, Noll, tenant, placed had basement, and leading stairwell from storeroom into leading he into heavy against had nailed the door prop alley—thus exit effectively blocking the second from room. provides purpose “The 91.3301(a) that Section provide and continuous safe Division is to limitations building.” The every every portion egress
means of nearly been shut door had nailed shows that the evidence years planked four had been over for stairwell longer only planking and than that. The time that the door prop present supplies brought through when were not Appellant alley door. contends these that obstructions changes merely temporary were not but structural ones created it Noll for is not liable. respect gave.an With in- obstructions, these the court struction on 660 of reads, based section the Civil Code which pertinent you part, letting, “I that if follows: instruct knowledge any, of the with an owner thereof that require- structurally foregoing same do not conform ments, if did not conform, so would constitute a violation (question) the said ‘Ordinance’.” and is re- “The second garding blocking temporary exits—‘If it is not exits is then change. “temporary” structural Please define and “struc- tural.” by nailing” permanent? Or, “to fix Would be “to prevent ordinary perma- use under circumstances” be ” (The Court) nent?’ suggest : “We can Section provides anything Civil Code to a is nailed building is permanent thereto, deemed to be a attachment words question to that effect. temporary what is you structural something say, regard in this case.” And No. 11: in- Instruction “You are facts structed that in proximate order to held liable for the results of unlawful building, structural features, any, of a not necessary that the owner should itself have created the *11 condition obligation which caused the of violation of law. The respect owner with leasing buildings to the are which structurally defective in arise violation of ordinances when to knowledge its changed the tenant has the structure of said building, or putting is to uses for same which same are in violation of ordinances ...” following (No. 38) given by The instruction was the court at request: appellant’s “If, you the evidence, believe that of the at the execution lease and time at all times there- equipped requisite after the workroom was with the number required city exits ordinances of the Angeles, Los or more of but that one such exits were blocked and rendered easy incapable use, or ready and that such blocking of the by Norman Noll or exits was done his employees, and that blocking any or obstruction of temporary exit was char- which did building any acter and one not affect the struc- charges you way, tural then court the defendants would them, either not, be responsible nor would therefor, and 422 blocking of such exit would not constitute a basis for a plaintiff against
verdict in favor of either
defendants,
or
(No. 46)
either of them.” The
was also instructed
any duty
“.
. . the
did not
plaintiffs,
defendants
owe
to the
them,
inspect
or either of
Noll to
leased to
being
legally
carefully
ascertain
either
or
used
any
employees and, therefore,
the said Noll or
of his
before
charged
knowledge
the defendants can be
with
unlawful
’’
Noll,
knowledge
act of
have had
they must
and notice thereof.
given
requested by appellant
This instruction was
the omission of the word “actual” before the word “know-
ledge.”
gave
The court then
an
defining
instruction
actual
knowledge.
constructive notice or
and/or
jury impliedly
The
found that the tenant had made struc
changes
tural
in the
which violated the ordinance
room,
when he blocked
other exit from the
and that this
change
duty
was known to the defendant and raised a
on its
part
tenancy or force
to terminate the
the tenant
to remove
comply
safety
the obstructions to
with the
mandate
city.
(Roxas Gogna, Cal.App.2d
enacted
41
measure
227];
Co.,
Harmon v.
H.
29
M.
Sherman
Cal.
[106
205];
Duffy,
App.2d
Goetz v.
N.Y.
[109
Wheeler,
Tvetd
423
regulations prescribed by the
safety
ordinance,
liable
for the violation thereof.
them
buildings
requires certain
to be
An
which
ordinance
sprinklers
proper
fire
is a
of
equipped with automatic
exercise
regula
police
municipality
provide
of the
power
state
protection
property.
(City Chicago
life and
tions for the
Washingtonian
Chicago,
416,
v.
Some
and that the knowledge property owner, of a where by Noll’s staff. Actual necessary may be from liability, as a of inferred his basis placing inquiry. (Turner him knowledge of facts on v. other 273, Lischner, Cal.App.2d 156].) 52 P.2d The record 277 [126 appellant corporation’s president called at the shows during every six approximately establishment weeks tenancy. by appellant that, assuming is it was under
It contended duty comply requiring with the an automatic a section respondents causal con sprinkler system, have shown no duty and their in between the violation of that nection proximate juries. question jury, The of cause is for the one upon judgment will appellate and before an court reverse a ground insufficiency finding to support of of evidence of it from appear that, causal connection must the record adduced, together accepting the full force of the evidence every prevailing party inference favorable which excluding con therefrom, be drawn all evidence in therewith, appears precludes it the law such flict still party recovering judgment. prevailing The evidence strongly against losing party. must be construed most Every may fairly presumption inference and which favorable be in favor be deduced from the evidence should resolved 'of prevailing (Lindsey DeVaux, Cal.App.2d party. v. 50 hearing denied.) 144], 448 P.2d Just what would have sprinkler system been in happened present had a case operation capable proof must, necessity, is not direct largely And, speculation be a matter of or of inference. even so, jury, it been one question has held that the is (Revegno Assn., not for the K. C. Hall court. San Jose Cal.App. hearing denied; 848], Lindsey 108 591-595 P. 1056; DeVaux, supra; 732; Stock Cal.Jur. Am.Jur. 204, 205 Trustees, Cal.App.2d 197, well v. Board 405], hearing denied; Gonzales, Dennis v. 55].) Respondents’ expert testified witness sprinklers gone operation that the into automatic have would degrees temperature ceiling when the reached 165 Fahrenheit, three seconds which would have been within two or after the outbreak of the fire. “Change Occupancy” section: corporation was appellant issued to original permit build- in the “stores and offices” house allowing it to
one apply section does not ing. Appellant maintains existing it, duty, if one so far as build there was Change ing concerned, to obtain Certificate of Oc upon It cupancy tenant, Noll. contends that rested might unlawful, leasing was not the it which be said occupancy premises. further but the contended that, certificate, even if the it to secure such a plaintiffs have shown no causal connection between failure injuries. procure the certificate Respondents, and their on hand, the other maintain that these sections the ordinance only appellant were admitted evidence knew show that occupancy that it had leased for an un original permit required appli lawful under the and that the would, by cation section, terms have necessitated *14 inspection report any necessary and a of and alterations appellant that charged knowledge should be with of what inspection the would clearly have revealed. It appears from the record that appellant knowledge had that lessee was the engaged manufacturing in dice. The lease provided itself that were to be used for the business of “manufactur ” of and in equipment ers dealers club and furniture . . . original would seem permit that since the applied had been for and to building issued responsibility owner of the of procuring Change Occupancy Certificate it. was expiration After the original lease, month to there was a tenancy month appellant-lessor right had the effect expiration of reentry. At the requiring of the lease the section change occupancy appellant certificate in effect was corporation charged require must be knowledge with of that ment. following From the testimony appellant’s president, Helbush, Mr. it would appear company that the considered that it was its to apply necessary permits, for the character, whatever city. Helbush’s statement Mr. making that at the time the lease he did know the not extent tenant’s manufacturing operations not would subsequently. excuse him Prior fire, he to the time of knew Noll was manufacturing must- dice, and he charged knowledge with of the sections of the ordinance pro viding safety necessary devices in a building where such being a business was (Cragg carried on. v. Los Angeles Trust Co., 1063, Cal. 663 P. Ann.Cas. Andreen v. Union, Escondido Citrus Cal.App. P. 556].) The testimony of Mr. Helbush (president) Q. : (Exhibits Those 56, 35) 55, 34, applications are the Royal Realty Com- requested Noll, are they Mr. not? make alterations pany to purpose Q. I notice recite that the And A. Yes. moving is offices the alteration or stores and ? after signed you Q. Now, the lease that at the correct. A. That is already gives purpose as its what we have with Noll same time again. you did I read it You stated that here, and won’t read going I am purpose, was his actual to understand that so not testimony page your January, 1946, to sir, look you, ask 9, page line where I have marked it red 62, 61, line Yes, I witness) A. testified that the same (handing ... now, Q. Now, you signed when this I testified too. as have sign yourself, you ? I lease—you lease did not A. did. did this you you my it, did not? A. It that time read was Q. Well, at say now, my understanding I understanding just it was like going place to be used for was the manufactur- all the was furniture, in club manufacture dealers. or dealers ers you city, with you filed this document said the Q. When you signed you lease, offices. When use was stores equipment. Q. this . . Then or dealers in . manufacturers said you signed is not: when lease situation, it already provided I have read as manu- what Noll, your you application repairs made facturing, but when only city, you recited with the same lease in connection all offices, correct? A. purposes are is that That Q. thought right, in the it was at time. All but docu- I you offices, you city, stated the leases filed with ment already statement, read. That is fair you I have said what way know, the understand- A. I but that is is it not ? Helbush, question Q. that is a of fact. A. O.K. ing was. Mr. confining myself written, and not what Q. I am what is So *15 Q. I question, answer the if have you or I think . . . Please you were accurately you read what had written down when Gallagher: objected dealing That is to as asked Noll. Mr. with Stanbury: speaks Mr. The document for itself. and answered. question The Court: The asked, but not answered. It has been Yes, asked, he has not it. The Witness: but answered has been Stanbury: like this in the And down lease. Mr. it is written repre- accurately read what is written the down I have also Safety Yes, not ? A. City, Board the have I sentation reframed.) to, question Mr. Stan- you (Objected and did. by correctly bury : I have also read what was written down Building Department the company when it informed your City purpose for Safety what the of the alterations and (Mr. these have I not ? Helbush then admitted that was, Noll by Livingston, Mr. city signed secre- applications to the the architect of tary Royal Realty Company, and the of the Schmolle.) Mr. L. company, a W.
Respondents did any not endeavor to show con- causal nection the failure to between obtain the certificate and injuries, their and it would seem that there If ap- is none. pellant corporation duty had to certificate, the obtain the contended respondents, requirement so, failed to do the together original applications with the city to at the time the lease was entered be into would sufficient to show that appellant knew it had for leased a purpose not in the contemplation city of the authorities at time original permit granted. was Appellant’s subsequent knowl- edge of manufacturing the extent of the operations being carried on part Noll seem would to raise a on its terminate expiration the tenancy at the in July, the lease any period during tenancy thereafter time the was continued on a month to month basis and particularly because from 1943 until appellant the date of the fire would charged be knowledge with of the various sections ordinance which had been enacted for the purpose avowed safeguarding life, limb property, knowledge that building leased it was structurally safe for purpose for which being it was used. (No. 28) as was instructed follows: “You are July hereby 15, 1942, that on original instructed when the year period expired, defendant, five of the lease Royal Realty required by Company, was not the terms of the lease to tenancy permit Company of Noll to continue. There- after, up including the time of the to and fire here involved, entitled, said defendant was on one notice, month’s tenancy. you terminate said I instruct if the owner of premises knowingly permits continually the same used purposes structually are in violation of you read ordinances these instructions, having power while occupancy to terminate such use and by giving by refusing of termination or permit notice thereof, he extension violates such ordinances. You are (No. determine the facts.” And 30) : “You are instructed knowledge agent imputed of an principal. to his you Therefore, should find officers Royal Realty Company knowledge you had a fact, must also Royal Realty find defendant, Company, possessed knowledge.” of the same *16 Liability Law
Common subject Subject is exceptions, to certain a lessor not lessee, liability common law for harm caused to the or to upon it, by the land or outside of the condition others (Prosser Torts, or on the activities the lessee. p. Harper Torts, 103, p. 234.) Respondents do 648; on § § appellant any claim them common law that owed of care.
Contributory Negligence corporation appellant plaintiffs claimed that is negligence in guilty contributory as a matter law that Angeles Municipal certain violated sections of the Los Safety Code, and section 13001 of the Health and Code. The just Safety pro- Health and Code mentioned section any any throwing placing or person hibits from or substance may any may thing place a fire in where di- cause rectly indirectly Angeles Municipal or a cause fire. Los 57.21, any person storing, from manu- Code, prohibits section handling any facturing, finishing, perforating or polishing, therein. except provided cellulose as One of products nitrate products in actual requirements is all when not such approved manila being kept use or worked shall be pro- 57.24 envelopes approved or containers. Section other safely any entirely or failing to remove person hibits from litter dispose of waste material close combustible or working day. material is be of each combustible Such receptacles or in rooms or approved stored incombustible approved building department.- 57.27 vaults Section any prohibits any person permitting accumulation from quantities or sufficient to create explosive inflammable dust in motors, walls, ledges, or fire or hazard on electric explosion Section dust settle. other interior surfaces on which manufacturing, prohibits any storing, pol- person 57.04 from transporting, handling of ishing, finishing, perforating, 11.01 any permit. nitrate Section products cellulose without provides person, a natural busi- shall mean “person” lessee, agent, manager, organization any type or the ness servant, of them. employee or officer or respond- appellant’s contention that answer complete A pro- these contemplated “persons” among ents were follow- provides that “The 11.01(a) section is visions this shall used in Code whenever phrases ing words the context unless Section defined construed meaning intended, or unless a meaning different a different particularly specifically defined and more directed to the *17 [Emphasis phrases.” of or Section use such words added.] 57.04(a) person shall, a written provides that “No without permit (of Commissioners) in effect from the Board Fire then (8) Store, do, (1) manufacture, print, so to Manufacture ... dry, polish, finish, assemble, fix, re- develop, wash, perforate, pair, transport any or handle products cellulose nitrate ...” clearly [Emphasis appears Thus, it from the context added.] that of intended the framers the section that someone authority persons permit—-not and control should obtain the position plaintiffs paid wage in of per $30 who were of week and or less in whose duties were more mechanical that only they part involved one small the manufacture or mak- ing dice, of the and whose duties involved no discretion and power change no doing to of the method the work. provides (a) making, using,
Section 57.24 “No person that storing having charge any or or control . other . . com- of litter, having bustible material or charge waste or or control any of building, structure or where the same fail, located, neglect entirely shall refuse or to remove or safely of dispose working day same at of each the close ...” [Emphasis provides Section 57.27 for the installation added.] specified machinery types equipment prevent any explosive accumulation of or quan- inflammable dust in explosion sufficient to tities create a Again, fire or hazard. appears context all of these sections were in- apply having tended someone the control of the business authority comply provisions. with the respect Safety With to section 13001 of the Health and Code there is no evidence record show that was there respondents causal connection between origin these and the of the fire. Contributory Negligence:
Common Law by appellant respondents It is contended guilty were contributory negligence they in that engaged were manufacture dice from cellulose nitrate. Whether respondents guilty contributory negligence were was question fact for jury. (Scholey Steele, 59 v. Cal. App.2d ; Anthony 402 P.2d Hobbie, v. 25 Cal.2d [138 733] 814 P.2d Stockwell v. Board Trustees, 64 826] Cal. [155 App.2d 405].) contributory P.2d 197 Where negligence [148 up defense, happens question set as a it seldom so doubt clear from that the court can say undertake as a jury matter of how the (Mc- law should find the issue. 430 Hetherton, P.2d Cal.App.2d 85];
Wane v. 508 Zehn- Spaulding, der v. Pewitt Riley, P.2d 873].) 27 Cal.2d jury repeatedly respondents could was instructed that they contributory guilty negligence not recover comprehensively defined in the instructions. The respondents guilty found were not impliedly negligence contributory said matter it cannot now be as a ordinary of law that did not care their exercise safety. own
Imputed Negligence:
Appellant respondents may contends that not recover since imputed Scholey employer’s negligence.is their to them. In Steele, Cal.App.2d 402, 733] judgment (wherein court affirmed a for an invitee of negligent tenant), argued, it was said: “It is further because language used in some of our that an invitee decisions *18 tenant, ‘stands in shoes of the there- City may (Runyon fore not recover if cannot’ the tenant v. Angeles, 837]), plaintiff Los 40 383 Cal.App. P. [180 ’ recovery negligence. by is barred from Mrs. Enos “It be doubted whether the statement that invitee sweeping stands in shoes of is to be so the tenant intended negligence Rather impute as to the tenant’s his invitee. to duty phrase it would to be a catch to indicate that the seem duty by to with the owed invitee the landlord is identical ’’ by him to the tenant. owed 412 Columbia, 402, In Eastern Singer Inc., v. 72 “We aware (hearing denied), it was said: are [164 531] authority applying doc- of neither nor sound reason injury to the tenant’s imputed negligence trine of to a case of duty breach of invitee which has resulted the landlord’s if a case is that repairs. applicable make The rule in such is agreed repair specific a condition has landlord duty repair rested dangerous, known he is liable to be In either knowledge of condition. upon him and he had knowledge chargeable with case the invitee of the tenant ordinary only actually or, knows in the exercise of what he dangerous condition.” care, should know of the Risk Assumed regulation, made for police Where an ordinance is imposed upon obligation life, human it is protection by salutary regulation and the doctrine police the defendant
431
apply.
policy
Public
risk does not
for
assumption of the
plaintiffs
owes to the
which the defendant
bids that
by
passive quiescence,
plaintiffs’ mere
even
be waived
should
knowledge
infraction of the ordinance.
though
of the
20]—Judge
P.
(Martello
Beletich,
Cal.App.
v.
[211
In Friedman v.
Finlayson’s concurring opinion.)
Pacific
67],
Cal.App.2d 946, 952-953
Co.,
Adv.
Outdoor
[170
injuria
of volenti non
said that the doctrine
it was
fit
an ordi
injury
from a violation of
applicable where the
arises
a nuisance
the maintenance of
apply
nance. Neither does
such maintenance.
aggrieved party contributed to
unless the
a law enacted
though
person may waive the benefit of
Even
public
an ordinance enacted for
for his own benefit
agreement. Public
good
contravened
private
cannot be
discharged
requires
imposed
that duties
statute be
policy
suspend
operation
cannot
and that those who are affected
(Adams
by express contract.
of the law either
waiver or
Co.,
v. Cumberland Inv.
There are statutes which inability protect plaintiff against protect himself. his acts, safety child labor Such are the and various statutes employees recognized, benefit of as which the courts have respect least, inequality bargaining the economic legislation. power passage which has induced the Since purpose the fundamental of such statutes would be defeated plaintiff permitted risk, gener if the it is to assume ally so, expressly by implica he held that cannot do either tion. The workman has no alternative but the loss of his live *19 “poverty consents, will” which and lihood, it is his and not his economically employment his than he no more free to leave (Prosser, 51, p. 392; Arrow a soldier or a Suess v. sailor. § 21 Osb Co., head Products 180 Minn. N.W. Steel [230 Waterbury 929; 107 F.2d Welch v. Army, orne v. Salvation Depre 522 Coast Co., ; 206 N.Y. N.E. 426] [100 Pacific Forge Co., 89].) 151 430 P. Wash. [276 of the Lease Provisions regard perti- Appellant complains, general, with fol- provided nent the lease sections of the ordinance that 432 will, at the sole cost That the lessee
lows: “Seventh:
requirements pertaining
all the
lessee, comply with
expense of
on
to be carried
the business
premises,
to the said
County
Municipal, State,
all
premises, of
the lessee in the said
’’
authorities.
and Federal
escapes
be maintained
frequently require fire
Statutes
guarded,
and their shafts to be
buildings, elevators
on certain
In
made safe.
connection
openings to be
other floor
question
preliminary
as to
is a
with these statutes there
improvements
making
required
rests
duty
whether the
The better view is
upon
or
the tenant.
upon the landlord
making
improvements
rests
duty
these
of a
nature and sub
permanent
are
landlord because
reversionary
stantially
interest. The courts
benefit his
damages
landlord is liable for
view hold that the
adhere to this
premises
anyone rightfully upon
about the
caused
or
required by
improvements
failure to make the
the landlord’s
Liability
Landlord, 26
(Harkrider, Tort
these statutes.
Story
Co.,
391;
& Piano
383,
Cowen v.
C.
Mich.L.Rev.
Coulter,
Ind.App.
N.E.
92;
Ill.App.
Steiert
[102
Packing
Enzenperger, 77
;
103 N.E.
Fowler
Co. v.
113,
117]
;
v. White
995,
P.
L.R.A.N.S.
Kan.
784]
[94
Barfoot
437]; Pauley v.
Mich. 349
N.W.
Steam-
Line, 170
Star
999, 15 L.R.A.
Co.,
The authorities
furnishes for com
premises
he
portions
safe
those
tenants,
is one that
premises leased to various
use,
mon
on
stated, where
delegated.
principle
In
with the
be
line
cannot
by municipal
provide
ordinance to
required
a hotel owner was
use,
leased for that
escape equipment
premises
on
adequate fire
obligation thereto
relieved of his
was not
owner
had
that the tenant
premises
fact that he had leased
equip
obligation
provide the
assumed as between them
man
imposed
the landlord is
duty
on
In
case the
ment.
such
tenant, nor to
delegated to the
datory and cannot be
Tenant,
&
(Bennett, Landlord
entity
person.
§
other
P.
Co., 162 Wash.
Invest.
p. 496; Moore v. Dresden
Carpet
v. Hartman Furniture &
Tralle
465, 77 A.L.R. 1258]
would
952].)
N.W.
seem
433
salutary legislation
nullity.
would soon become a
sible, all
analogous
somewhat
to that of
The situation is
one who
employs
independent contractor. Where
an
the law im
duty
definite,
upon
affirmative
one
reason of his
poses
others,
proprietor
whether as an owner or
relationship with
capacity,
person
such
of land or chattels or
some other
escape liability
perform
duty
failure
for a
thus
cannot
independent
by entrusting
(Re
it
imposed
contractor.
Torts, 286.) And
statement of the Law of
it is immaterial
“nondelegable”
regarded as
be im
whether the
thus
(79
posed by statute, charter
common law.
Pa.L.
or
U.of
Thayer County
90, citing cases;
Agricultural
Rev.
Wilson v.
Soc.,
966,
Damages Appellant contends that there was no evidence from which find, jury indulging conjecture specu- could without portion respondents’ injuries lation, what was attribut- solely appellant. able to the acts or omissions of City Co., In Cal.App.2d Oakland v. & E. Gas Pacific 328], (p. 450): the court said “One who con- damage escape liability pro- tributes to cannot because the accurately portionate contribution measured. party alleging It is incumbent in- [Cases cited.] prove damages. Respondents the amount of sustained damages burden If proven in this case. could be proportionately, upon appellant. reduced that burden rested appellant The record not show does sus- cited.] [Cases ’’ In Cummings Kendall, tained that burden. 282], imposed the court of differ- burden proof upon ential In Ameri- defendant. Slater v. Pacific Co., 212 31], can Oil Cal. held that P. as far as from record, ascertainable there was evidence that appellant substantially damage, contributed to the or at least aggravation thereof, compensa- and that the amount of approximation accuracy.” tion awarded was “an persons damages several Where act in concert and result joint tort, person from their held for the entire each is damages segregation unless causation can be established. though persons acting concert, Even are not if the result produced indivisible, person are held liable their acts each is Death, burning sinking for the whole. of a imposing a boat are such indivisible The reason for results. liability consequence each for entire is that there exists on dividing damages permit no basis for the law loath to plaintiff against wrongdoing an innocent to suffer as de- liability imposed fendant. where each cause is suffi- This required produce cient in itself as well as where cause is each *21 (15 439.) the result. So.Cal.L.Rev. 1, P.2d 5 A.L.R.2d Tice, 33 Cal.2d
In Summers that, however, it should “In addition said: 91], this court justice policy of shift reason that the same out pointed if he to absolve himself can defendants of burden to each the apportioning wronged person —relieving the defendant, apply here where we particular a injury to the supply required is evi plaintiff with whether are concerned damages. If defendants are apportionment the dence for damage liable for the and thus each tort feasors independent ap where the alone, and, least, matter by him caused wronged party the innocent incapable proof, is portionment wrong right to redress. The deprived of his not be should out between themselves an be left to work doers should Co., Ins. v. Industrial Acc. (See, Colonial apportionment. 884].) cited cases Some the Com., 29 Cal.2d damages difficulty apportioning the burden of refer to the feasors, say that where independent tort between the factually made, cannot be the trier of fact a correct division can, which would be more or less may make it the best it wrongdoers stressing factor that the not guess, are uncertainty. (California O. position complain of Co. Cal.App. 694]).” P. Co., supra, 50 Riverside P. C. (Nos. 42) that clearly 64, instructed jury was starting fire, and from not liable for the appellant was clearly appears appellant’s authorities it the above cited merit. is without contention Damages
Special employer an or appellant’s contention that where It employee compensation pays to an his insurance carrier Compensation statutes, required under Workmen’s independent right to recover employer then has an carrier or party negligence injured from a third whose for such items argued insurance carrier employee. It that Noll’s gross negligence is im- stands in Noll’s shoes and that Noll’s any special damages puted recipient it Precisely accordingly. judgment should be reduced was made in the case of I. Co. v. Cali- same contention Pacific 313], Cal.App.2d 260 Wks., Ltd., etc. fornia there held that when appellant. adversely to answered negligent against party third brings an action employee negligence contributory personal injuries, the damages for for or its insurance employer bar the does not employer of his judgment for employee’s asserting a lien on carrier from expenses compensation and medical of workmen’s the amount employee of the in as a result paid to on behalf of the or on 26 of the juries. Although was based section this decision Compensation Act as read sections Workmen’s substantially the 3855 of the Labor Code contain 3854 and language. same “The court (Lab. Code) reads as follows:
Section any judgment apply, shall out of the entire amount first any damage employee, a sufficient amount recovered expendi- employer for the amount of his to reimburse joined employer has compensation. tures for not If brought his not action, the action or has action has allow, consolidated, application been his shall court, on against any judgment as a first lien amount of entire *22 any damages employee, the of the recovered amount employer’s expenditures compensation.” [Emphasis added.] portion appear section would to answer
The italicized right employer’s separate that the contention appellant’s right and not a derived virtue one independent against rights employees may his have subrogation to such (Section 3850(b)), He, his carrier party. insurance a third action, joined in the or has he not to a lien has is entitled if his, not been action, or action has consolidated. brought allow, applica- that court his provides shall on The section expenditures against any tion, a lien the entire amount first chapter foregoing compensation. The wherein the made for “Subrogation Employer,” entitled sections are found is any part made in thereof con- and no mention is right negligence employer tributory defeat his shall such a lien. admitting proof special court did not err in trial
damages instructing in thereon.
The Neuber Case respect in this appellant’s A sufficient answer to contention similarly nor presented, were not is that the two cases being plaintiffs cases, in two other than victims of the same tragedy, similarly factually. situated In Morris v. Fortier, 132, 136-138 368], it was held that the same results need not follow, even on the same evidence, when appeals two from decisions of trial courts reach ing opposite conclusions are upper not before an court at the same time. In Southern City Angeles, Co. Los Pacific 5 Cal.2d 847], this court stated [55. order that victims of the same misfortune share the same fate, their cases must be before an appellate court at the same time, that the facts be the same, and also that the cases similarly presented. That the two cases were not tried and presented under the same theories is by appellant admitted (in Op. Brief, page its 37.) : “That case was tried and presented under theories somewhat different from those present case, and the evidence there somewhat differed from the evidence present of the cases.” The Neuber case was apparently tried the main theory on Royal Realty Company owed a common law of care to the employees Noll, the tenant.
The Instructions Appellant contends that the trial preju- court committed instructing jury: dicial error in (1) respect With ordinances offered plaintiffs;
(2) respect “building With as a building”; respect (3) With to the “use and occupancy” of the build- ing;
(4) respect damages, general With special; (5) respect zoning With ordinance. expressed
Because of the views appellant’s herein, con- tention that the trial court prejudicial committed error in giving instructions on the first four subdivisions as set forth above cannot be sustained. erroneously
It is contended trial court admitted *23 section C-3 of in evidence section 12.01 of Ordinance No. jury and instructed the section, thereon. The in substance, provides that not than per more cent of may rentable floor area in a C-3 Zone light be used for manufacturing, provided articles, that where all are sold at up per retail then to 15 cent space may of the floor be so used. It is conceded that Noll used per more than 15 cent space of the floor rented to him, and the provisions that contended, however, the section were violated. It is that this only applied section to the nse made of the building, and not 1‘building building' ’; zoning to the as a and that the ordinance protection was intended for the of the values of properties right zone and not to within the afford a of action person to a designed protected. not within the class to be In respect, appellant’s is meritorious. contention The court instructed the zoning violation of the ordinance “Aid not afford recovering by plaintiff against a basis either defendants, them, by plaintiffs or either and it is not claimed they ’’ grounds. to Assuming are entitled recover on those pertaining zoning of the ordinance section was improperly evidence, portion admitted just quoted the instruction was sufficient to cure error. judgments are, and is, each of them affirmed. J.,
Gibson, Shenk, J., C. concurred. SCHAUER, J. judgments I concur in the of affirmance ground light upon the that in the of the entire ap- record it any pears, dispute either without or overwhelmingly, that the defendant owed and breached imposed by city or- (§§91.0102 91.3303(d)) provide dinance exit doors “in opening exit,” the direction of and that the failure provide proximate such doors was a contributing cause of plaintiffs’injuries. prove plaintiffs portion cannot' what
The fact that of their injuries burning they endured they while is due were illegal flaming door, distinguished held room portion have ensued from the which first flash of during elapsed few which flame and seconds while way making their to the door which have, should but swing immaterial. Under the not, out, is circumstances did upon plaintiffs are not called to trace this case and allocate (Summers responsibilities (1948), v. Tice 33 Cal.2d partial Peaslee, Multiple see 80, 87-88 A.L.R.2d 91] Damage (1934), 1127) and, 47 Harv.L.Rev. Causation and very case, nature evidence attempted apportionment responsibility would have to be unsatisfactory so uncertain and that end as to based is impossible say liable for all make it defendant is not injuries sustained. The defendant owner should have might (whether foreseen that there a fire of innocent'or wrongful and that his failure origin) legal exits supply
438 though apportionable, damage appreciable, not cause
would
from the fire alone.
have resulted
Under
which would not
giving
of the other instructions com-
these circumstances
blocking
(as
installing
sprinklers),
of doors and
plained prejudicial.
erroneous,
was not
EDMONDS, J.
judgment
affirmance of
in
The
this
plaintiffs
against
property
recover
owner
ease allows
by
which,
clearly
record
rendered
upon a verdict
confusing
by incorrect and
instructions.
shows, was misled
injuries
The
was liable
occasioned
the fail-
owner
jurors
outswinging door. But the
also
provide an
ure to
might
because
damages
be awarded
of conditions for
told that
responsible.
property owner was
which the
principle
fundamental
that the defendant is entitled
It is a
judgment
of prejudicial
because
error
to a reversal
irreconcilably conflicting
the record shows
instructions
when
upon
theory
what
and it cannot be ascertained
verdict
(People
Cornett,
A ordinance* duty of maintain occurred, the property where the fire dopr would ing opening in the direction of exit. The evidence Angeles: city 91.3303, 87,000, “Doors *Section No. Los Ordinance only serving open ...” in the direction exit. as exits shall city Angeles: [Giving 91.0642, 87,000, of Los Section Ordinance No. quantities explosive specified requirements in materials in for rooms which every “(b) Every part any process] are manufactured or used building “ housing (i) Every separate .. room shall have two exits [explosives] sprinklered." shall be breached, this support a determination proximately injuries plaintiffs. caused that the breach city Angeles placed any agree I of Los But cannot sprinklers. legal duty upon provide the lessor to two exits and requirements regard using the one are building rather than the owner. 91.0502(e) requires sprinklers of the ordinance
Section every certain materials are handled. It is entitled: room where *25 Occupancies:”, E-l a term which connotes the use “Group property. building nor type of The title does not describe a of building owners; rather, designates does it define a class of type occupant. The room in which “Every a section reads: explosive eight pounds weight in materials lots more than liquids in process or flammable or used are manufactured Group occupancy].” (Italics added.) . . . a E. The sec- [is being specifies having type use, tion a certain room a as the within terms of the ordinance. narrowly specified weights
The use is defined in terms of bring of materials. The factors the room within the requirements by city normally laid down the are within the cognizance alone; only of the user he can know whether the “occupancy” involving explosives is one to the extent which brings it within the class defined the law. ‘‘ provides Special Require- Section 91.0642 of the ordinance ments for E-l Sub-Group Occupancies.” Here also title the strongly of the duty upon section occupants indicates a cast the and not the owner of (b) them. Part of this sec- tion declares separate (i) that there must be two exits. Part requires “Every housing Sub-group room E-l a Occu- ’’ pancy sprinklered. (Italics shall be added.) However, under section 91.0642, supra, having the room is not one classified as sub-group a Occupancy E-l explosives eight unless the exceed pounds in weight, a condition which is within the direct knowledge and control of the rather than lessee the owner property. the quite different from that language of these sections concerning general plan the imposing in conditions
used “Every that, example, provides section 91.3303 building. For specified areas of floor serving an exit ... door area] [in conformity installed in constructed and . . shall be . open the . . . door requirements of this Section the [that the added.) The reference to (Italics direction of exit].” the owner of intent make shows an word “constructed” property responsible compliance with the standard safety city. In imposing set duty upon the owner of city property, prescribed any has not particular use premises. As majority stated opinion, “The section applies buildings having to all requisite amount of floor space regardless of the use made thereof.” Under these cir- Royal cumstances, Realty Co. damages is liable for all occa- provide sioned its failure to opening door in the direction of exit. On the other hand, it legal duty was under no provide two exits and sprinklers, and if the its based verdict provide the failure to them, judgment should be reversed. plaintiffs if the lessor
However, even
owed
exits, the record shows
uncontradicted
two
providing
made,
the lease to
tenant
at the time
room
that,
fact
subsequently
fire
had two doors. The
occurred
tenant
where the
placed planks
top
rear exit
over the
blocked
leading to it. These were acts of the tenant rather
stairwell
But
rear door
permanently
the lessor.
was not
those of
than
stairway
The evidence shows that both it
were
closed.
supplies
brought
through
time to time when
used
alley.
witness stated that “We often used that stair-
One
up.
testimony
bringing lumber
...”
This
was uncon-
way in
presents
The record therefore
situation
the factual
tradicted.
*26
compliance
legal requirement
owner’s
with the
property
aof
city
by
by
the
with intermittent
down
restriction
laid
circumstances,
the use of one exit. Under
upon
these
tenant
property
basis for a
no
conclusion
owner
is
there
provide
any duty
exits,
to
the two
or breached
failed
either
for which
concerning them
he
be held liable.
'
that,
required
purposes
for the
or statute
If
ordinance
(cid:127)
every
given
there be
room of
ventilation,
light
room of the
windows,
number of
and a
specified
dimensions
clearly
be liable
the lessor would not
leased,
area were
stated
resulting from a
for suffocation
employees
the tenant’s
by
particularly
tenant. This is
true
closing
windows
of the
permanently
and were
closed
were
where
windows
premises
hen a lessee
“.
. .
rents
to time.
used from time
[W]
by
unsafe
his use
but are rendered
leased,
safe as
that are
employees
nor his
can recover
the lessee
them, neither
(Neuber
condition.”
resulting from that
injuries
for
the lessor
501],
596, 616
P.2d
Co., Cal.App.2d
86
Royal Realty
v.
[195
Moving Corp.,
441
Columbia,
Singer
Inc.,
72
;
Eastern
P.2d 733]
Runyon
City
Angeles,
Los
531]
837].)
Cal.App. 383 [180 P.
expired
lease had
suggested
that because the
holding
upon
basis,
a month to month
tenant was
over
having
position
premises
leased the
with
lessor is not in the
premises
that a new lease of the
two exits. The contention is
expiration
was created
the time of the
of the lease. The
argument
that,
first answer to this
for the reasons which
duty
stated,
provide
have been
lessor owed no
two exits.
existed,
Further,
assuming
even
that such a
where a
lease,
tenant holds over
the terms of a
his
in accordance with
possession
tenancy
is a
continuation of
under the lease
(Howell.v. City Hamburg Co.,
The evidence disfigurement to the burns and suf- by fully plaintiffs justifies fered the amounts awarded by jury. them However, injury seriousness of does not away necessity liability do clear basis of damages which have been sustained. And one cannot read the transcript proceedings and not come certain con- jurors by clusion that the were confused and misled the 81 given by judge. instructions which trial Indeed, certainty there can nobe as to whether the verdicts were based provide opening lessor’s failure to doors in the any direction of exit, separate reason of lack of two exits, or sprinklers. because of the lack of
All of municipal the sections of the ordinances which have been judge. mentioned were read to the trial He knowingly then told them that if the lessor let the sprinkler without equipment, the ordinance violated gave him. The following court also “In instruction: read- ing you relating certain buildings, ordinances I have told you conduct what would constitute a violation I thereof. you violation, any, instruct if of these ordi- by the defendant owner, proximately nances violation such injury caused as a thereof, negligence result would constitute ” unless there is evidence to excuse . . . [his conduct] (No. 25).
By judge jurors another instruction the trial told the he provisions had read to them “the of certain ordinances and in each instance . . . viola- stated what would constitute a may, tion thereof as under facts insofar such ordinances the been, to the defendants. . . . Where a applicable stated, have conduct, prescribes certain that is or an ordinance statute doing doing a certain act or forbids the say, requires the or statute act, the violation such ordinance a certain negligence (No. 33.) matter of law. ...” as a amounts jurors “. . that neither violation charged the . He also by the zoning ordinance, any, if as shown evidence nor housing Sub-group any, building if a . . . for letting, recovering by either Occupancy can afford a basis E-l Concisely (No. 35.) against ...” plaintiff the defendants. jurors that, under cir- having certain stated, declared to Sub-group E-l letting of a cumstances, the in lots of more Occupancy explosive “in materials liquids are manufac- eight pounds weight or flammable than negligence, any process” would constitute or used in tured could not be considered they negligence were told that such question liability of the lessor. determining as to the in certainly were in instructions most and other conflicts This certain basis for jurors no confusing presented ’ liability. determining the lessors govern law about the rules of jurors were doubt That questions clearly by the of some ing liability is indicated they during deliberations, returned to when, them their regard the “Law They for a clarification of asked courtroom. about system,” stated, “We are confused ing sprinkling ’’ of a being responsible for results of acts tenant. a landlord hypothetical again give They said, “Please illustration also although case had been no such of landlord and tenant” case more instructions were instructions. Several mentioned new instructions was jury. read The effect of the then found the lessor was tell finders of fact that negligent in not exits, or negligent providing in not two proxi breach of was a installing sprinklers, either injuries plaintiffs, their of the' suffered mate cause against property In Neuber owner. verdicts should Realty 501], Royal Co., 86 in the fire in which the damages same action for sustained essentially instruc injured, this case the same plaintiffs held to tions were be erroneous. guilty plaintiffs held to have been agree
I cannot be contributory negligence a matter of law under as 11.01 the ordi- true applicable ordinances. that section agent, servant, “. or . . . “person” . . nance defines ordinance, per- By section 57.27 of the employee. ...” *28 prohibited permitting the accumulation son is quantities explosive or inflammable material sufficient provisions If explosion create a fire or hazard. these narrowly plaintiffs’ compel failure their construed, explosive safely, or the event employer to store the refuse jobs, constitute so, do leave their would his refusal to contributory negligence implicit in as a matter of law. But employee such a statute is the condition that have some Any construc- real over the forbidden conduct. other control purpose of important tion of ordinance would defeat an lacking legislation, protect employee dis- him danger imposed upon cretion authority or some from the employer. his However, jnry may upon one have based its verdict grounds liability or both of the two asserted which would justify recovery by than plaintiffs, rather provide outswinging instruc exits, the errors clearly prejudiced rights tions of the lessor and well miscarriage justice (Wells Lloyd, have caused 21 Cal.2d 452, estberg Willde, 360, 14 Cal.2d W 369, 590]). circumstances, Under these judgment should be reversed.
Traynor, J., Spence, concurred. J., Appellant’s petition rehearing was denied June 1950. Edmonds, J., Traynor, Spence, J., voted for a J., rehearing.