Opinion
Rehearing Denied Feb. 24, 1961.
Hearing Granted March 29, 1961.
Opinion vacated 14 Cal.Rptr. 1.
E. Arnold Oppenheim, Harney, Drummond & Dorsey, R. E. Schlottman, Hahn, Ross & Saunders, Los Angeles, and Helm & Budinger, Studio City, for appellants.
Veatch, Thomas & Carlson, Henry F. Walker, Gibson, Dunn & Crutcher, Sherman Welpton, Jr., and F. Lee Coulter, Jr., Los Angeles, for respondents.
KINCAID, Justice pro tem.
The appeals herein involve four separate actions for personal injuries and wrongful death which were consolidated for purposes of trial. The actions arise out of an explosion The defendants against whom such verdicts were returned, made and filed motions for a judgment notwithstanding the verdict and in the alternative, for a new trial.
Thereafter the court made its order setting aside the said verdicts as against the defendant Union Oil Company of California and ordered judgments entered in each case in favor of said defendant; and, in the alternative granted the motion of said defendant for a new trial in each case on the ground of insufficiency of the evidence to sustain the verdicts. The court further denied the motions made by defendants Derrington and Ledgerwood for judgments notwithstanding the verdicts but granted their respective motions for a new trial in each case on the ground of the insufficiency of the evidence to sustain the verdicts. Additionally the court granted the motions of defendants to strike the memorandum of costs and disbursements theretofore filed by plaintiffs Gonzalez.
All plaintiffs, other than Spinelli, appeal from the orders made granting the motion of defendant Union for judgment notwithstanding the verdict. All plaintiffs, including Spinelli, appeal from said judgments and from the orders granting the defendants new trials. Plaintiffs Gonzalez further appeal from the order made striking their memorandum of costs. As an order granting a motion for judgment notwithstanding the verdict is not appealable (Teich v. General Mills, Inc., 170 Cal.App.2d 791, 794, 339 P.2d 627) the attempted appeals therefrom must be dismissed. The merits of the ruling are reviewable upon the appeals from the judgments.
Where a motion for judgment notwithstanding the verdict is made and, contemporaneously therewith, the alternative motion for a new trial is made, the court shall pass upon both of them. If the court grants both motions the order granting a new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed and the order granting the new trial is not appealed from or, if appealed from, is affirmed. Code Civ.Proc. § 629.
A motion for judgment notwithstanding the verdict should be granted only if it appears from the evidence and the reasonable inferences therefrom, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. The rules governing a motion for judgment notwithstanding the verdict are the same as those applicable to the determination of the motion for judgment of nonsuit and for a directed verdict. Sparks v. Allen Northridge Market, 176 Cal.App.2d 694, 699, 1 Cal.Rptr. 595.
On appeal from a judgment notwithstanding the verdict, the evidence and all reasonable inferences therefrom must be viewed most strongly in favor of the verdict, and all conflicts, if any, resolved in favor of the verdict so that if there is any substantial evidence to support the verdict, the judgment must be reversed. Parker v. City & County of San Francisco, 158 Cal.App.2d 597, 602, 323 P.2d 108.
In passing on a motion for new trial based on insufficiency of the evidence, it is the exclusive province of the trial court to judge the credibility of witnesses, determine the probative force of testimony, and weigh the evidence. The trial court, in considering the sufficiency of evidence on a motion for new trial based on insufficiency of evidence, may draw inferences opposed to those drawn at the trial, and where the only conflicts consist of inferences deduced Richardson v. Ham,
Brooks v. Metropolitan Life Ins. Co., Ballard v. Pacific Greyhound Lines,Statement of Facts
On the night of April 4, 1957, four men, Clyde Bates, Manuel Chavez, Manuel Hernandez and Oscar Brenhaug, entered the Club Mecca. All had been drinking intoxicants elsewhere and they continued to drink over a period of time while at said cafe. Bates and Chavez in particular became belligerent after the bartender refused to further serve them. An altercation ensued and the four men were physically ejected from the premises. Scuffling took place on the sidewalk in front of the cafe during which Chavez endeavored to strike one of the customers and in missing his target fell down and otherwise evidenced difficulty in maintaining his balance. When they were leaving, Bates threatened: 'We will be back' or some similar statement. Bates and Chavez then walked to the Union Oil Station located at 5720 South Vermont Avenue, approximately six or seven blocks distant. When they entered the service station premises Bates was carrying a five-gallon open paint bucket.
Ledgerwood testified he was employed by Derrington as a service station attendant at the above location. About 11:30 p. m. on April 4, 1957, he saw Bates and Chavez walk onto the station grounds. Bates was carrying a five-gallon black bucket that had paint running down the sides, both inside and out. It was an open bucket with a wire hendle. Bates asked to have it filled with gasoline. Ledgerwood looked into the bucket and saw about a pint of dried paint therein together with a lot of grass clippings and dirt as though it had been sitting for some time.
Bates said 'Fill it up, Buddy.' Then three cars came in, 'so I just turned the pump on and I put in exactly 4.9 gallons. At that time it was 28.9 cents per gallon and it came to $1.45.' After Ledgerwood put the gasoline into the bucket, he said something to the effect that 'you're going to have a lot of trouble getting that car started with this.' Bates said, 'Oh, that's all right. We'll take care of that.' He later testified that he told them they were going to have trouble with the dirt before he filled the bucket with gasoline. Ledgerwood confirmed that at the time of the taking of his deposition the following questions were asked of him and he gave the following answers: 'Q. Did they tell you what they wanted the gasoline for? A. No. Well, I'll correct that now. He said, 'We run out of gas.' That's all they said, 'run out of gas.' So I says--I put the gas in the bucket--and I told them I had to leave it, you know, so it wouldn't splash out when they were carrying it. So I said, 'You're going to have a heck of a lot of trouble if you put that in that bucket, that gas. You're going to have trouble starting it.' And he says, 'Oh, that's all right. We'll take care of that.' So I just let it go at that.' When the two men came into the station with the open bucket, he did not ask them what they intended to do with or use the gasoline for.
At that time, Bates and Chavez were standing on the other side of the bucket, 'about 3 1/2 feet between us.' Asked whether he observed at that time that either Bates or Chavez had been drinking intoxicating liquor, he answered, 'I can't say. I couldn't smell a thing and, of course, there was a little breeze behind me; but I didn't smell anything.' He did not notice anything that was not normal about Bates' manner of speaking. They were not belligerent in any manner.
After he had received payment for the 4.9 gallons of gasoline, the next thing he did was to wait on one of the other cars. Bates was carrying the bucket of gasoline. The gasoline was not sloshing over the sides of the bucket, as far as he could see. It did not slosh over the sides when Bates picked up the bucket. There was no particular reason why he watched them. He guessed that he took his eyes off Bates and Chavez, and kept glancing back and forth, during the time that he walked around to the front of the car, put water in, checked the oil and did other things. During the time he watched them walking down the street, he did not notice anything unusual about their manner of walking.
He realized his mistake in selling the gasoline in such container to Bates and Chavez at the time he saw them leave and walk across the service station lot with the bucket of gasoline. He knew it was a violation of certain provisions of the Los Angeles Municipal Code to dispense gasoline from any automobile filling station, except into the tanks of motor vehicles or into all-metal containers bearing a label plainly describing the contents thereof, not to exceed two gallons capacity, and equipped with a tight fitting screw or snap type cover. (Plaintiffs' Exhibit 4.)
Article 7, sections 57.00; 57.45, subsection (k).
Derrington testified that he was the operator of the gasoline service station in question under lease by its owner Union Oil Company. A manual containing instructions for operating the station was furnished by the lessor; it was kept at the station during the period in question. The manual instructed against pouring gasoline into an open container and against dispensing gasoline into a can larger than one holding two gallons and provided that such can must be painted red and marked 'gasoline' on the side.
He further stated that on the morning of April 7, 1957, Ledgerwood told him that 'the men scared him when they walked up that night'; that 'they gave him a hard time because he wasn't going to sell the gas to them that night, but they gave him such a hard time that he almost had to sell it to them'; that 'the men talked rough to him,' and that 'these men looked hopped up or drunk.'
Bates and Chavez, with Hernandez and Brenhaug returned to the Mecca Club carrying the said bucket of gasoline. Bates dumped the entire contents of the bucket through the front door into the cafe in one swinging motion, and Chavez simultaneously threw a lighted match or book of matches in the same direction. A flash fire and 'slow' explosion instantaneously occurred. As a result thereof, Gilbert Gonzalez, Antonio Smaldino and Harry L. Robinson (among others) died of carbon monoxide poisoning, and Barbara Spinelli was seriously injured.
George Ayanian testified as an expert witness for plaintiffs that he inspected the burned premises as senior inspector of the Los Angeles City Fire Department assigned to the arson unit. He arrived at the premises a short time after the explosion and fire and while smoke was still coming from the building and embers were glowing. It was his opinion that a flash fire-explosion had occurred resulting from an inflammable liquid which had been used to incite the fire. He gave as his opinion that if 4.9 gallons of gasoline were dumped, thrown or propelled from an open five-gallon paint bucket from the entry way of the cafe into the interior thereof and immediately thereafter It was stipulated at the trial that a flash fire did occur from the throwing of the gasoline followed by the throwing of the matches. It was agreed that carbon monoxide gas in great volume was created by the throwing of the 4.9 gallons of gasoline into the interior of the cafe and that the deaths of Smaldino, Gonzalez and Robinson and the injuries to Spinelli were caused by the fact that a large amount of gasoline was poured or dumped in an instant and that as a result escape was impossible.
It is the contention of appellants that the trial court abused its discretion in granting the motions for a new trial and the motions for a judgment notwithstanding the verdict when there was no conflict in the evidence on material issues and the uncontroverted evidence established that the negligence of Ledgerwood, and through him of his employer Derrington and the latter's principal, Union Oil Company, operated as a proximate concurring cause of the deaths and injuries; that the evidence as a whole was not sufficient as a matter of law to support verdicts in favor of said defendants. Defendants assert that if they were negligent, their negligence was not as a matter of law a proximate cause of the deaths and injuries sustained herein.
Ordinarily the question as to whether a causal connection exists between the negligence of said defendants and the deaths and injuries, where different inferences may reasonably be drawn from the same evidence, must be left to the decision of the triers of fact. Want of proximate cause does not exist as a matter of law unless the only reasonable hypothesis is that such want exists and reasonable or sensible men could have drawn that conclusion and none other. Before it can be held as a matter of law that want of proximate cause exists, the evidence must point unerringly to that conclusion. Sparks v. Allen Northridge Market, supra, 176 Cal.App.2d 694, 700, 1 Cal.Rptr. 595.
'All persons are required to use ordinary care to prevent others being injured as the result of their acts; ordinary care has been defined as that degree of care which people of ordinarily prudent behavior could be reasonably expected to exercise under the circumstances of a given case. In other words, the care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated. [Citations.] The risk incident to dealing with fire, firearms, explosive or highly inflammable matters, corrosive or otherwise dangerous or noxious fluids requires a great deal of care to be exercised. In other words, the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence.' Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12, 16; see Johnson v. Nicholson, 159 Cal.App.2d 395, 406, 324 P.2d 307.
'Liability for carelessly handling dangerous instrumentalities arises from failure to use due care, and such failure arises when the circumstances show that the actor had reason to know that his act was likely to produce injury to any person in the lawful persuit of his own business and exercising reasonable care. (38 Am.Jur. § 85, p. 743). When human life is at stake the rule of due care and diligence requires that without regard to difficulties or expense every precaution be taken reasonably to assure the safety and security of any person lawfully coming into the immediate proximity of the dangerous agency or device which is a peril to others. [Citations.] One who causes the use of a dangerous instrument in a negligent manner, or under such circumstances that he has reason to know it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person not at fault. (38 Am.Jur. § 85, p. 743.) That Been v. Lummus Co.,
Defendants argue that the acts of Bates and Chavez in propelling or throwing the bucket of gasoline into the cafe followed by the throwing of a lighted package of matches was the independent and efficient cause of the injuries and damages and their conduct was something which Ledgerwood did not foresee and in the exercise of reasonable care should not have foreseen would follow in natural and continuous sequences from his act of furnishing the gasoline to them.
The ordinance (pltfs'. Ex. 4) prohibiting the dispensing of gasoline from any public filling station except into the tanks of motor vehicles or not exceeding two gallons into a plainly described metal container equipped with a tight fitting screw or snap type cover, is plainly one for the protection of the public in general as well as those within the limits of the filling station.
Where a statute is intended to protect the class of persons in which plaintiff is included against the risk of the type of harm he has sustained, a violation of the ordinance gives rise to a presumption of negligence which may be rebutted by evidence or justification or excuse. Courtell v. McEachen, 51 Cal.2d 448, 459, 334 P.2d 870.
Liability of Ledgerwood and Derrington
No evidence has been offered by defendants herein to justify or excuse their act of dispensing the gasoline in the manner shown. They rely instead on their contention that their said negligence was not the proximate cause of the injuries or damages of plaintiffs but that the immediate cause was the conduct of Bates and Chavez which defendants did not foresee or in the exercise of reasonable care should have foreseen.
The settled general principles governing the factual situation here presented are set forth in Ferroggiaro v. Bowline, 153 Cal.App.2d 759, at page 763, 315 P.2d 446, at page 448, 64 A.L.R.2d 1355: 'A defendant may be negligent for failing to guard against an intervening cause which in ordinary human experience is reasonably to be anticipated or which the defendant has reason to anticipate. In other words, the risk created by the original act of negligence may include the intervention of the foreseeable negligence of others. Prosser on Torts, 2d ed., p. 268 et seq. The fact that the intervening act of a third person is a negligent one will not make it a superseding cause of harm to another for an injury which the original actor helped to bring about, if the original actor at the time of his negligent conduct should have realized that a third person might so act. Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12. That is, the defendant will be held liable for the damages resulting from an intervening cause that he could foresee, or for those which are the normal results of the risk he has created. Of course, if 'the intervening act constituting the immediate cause of the injury was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, then, since the chain of causation is broken, he owes no duty to the plaintiff to anticipate such further acts, and the original negligence cannot be said to be the proximate cause of the final injury.' Hale v. Pacific Tel. & Tel. Co., 42 Cal.App. 55, 58, 183 P. 280, 281. But, if the original actor's conduct is a substantial factor in bringing about harm to another, the fact that he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119. Time and distance do not affect the question of a defendant's liability for an intervening act It is not necessary that the negligence of the defendants herein be the sole cause of the deaths and injuries of plaintiffs. Liability may be imposed upon a defendant where his negligence is one of several contributing factors, each of which is a proximate cause of the injury. Westover v. City of Los Angeles, 20 Cal.2d 635, 639, 128 P.2d 350; Johnson v. Nicholson, supra, 159 Cal.App.2d 395, 408-409, 324 P.2d 307.
'Defendant's conduct must always be gauged in relation to all the other material circumstances surrounding it, and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law.' Warner v. Santa Catalina Island Co., supra, 44 Cal.2d 310, 318, 282 P.2d 12, 17.
Whether a particular act or omission constitutes negligence is ordinarily a jury question, and it is only when reasonable minds cannot differ with respect to whether proved facts and reasonable inferences therefrom make out negligence or non-negligence that such issues may be taken from the jury. Where there is uncertainty as to the existence of negligence, the question is one not of law but of fact, to be settled by the jury. This is so whether the uncertainty arises from a conflict in the evidence or because fair-minded men will honestly draw different conclusions from undisputed facts. Johnson v. Nicholson, supra, 159 Cal.App.2d at page 409, 324 P.2d at page 315; Biondini v. Amship Corp., 81 Cal.App.2d 751, 766, 185 P.2d 94.
Defendants argue that the act of Bates and Chavez in propelling the gasoline into the cafe and igniting it was criminal in nature and is a superseding, intervening act constituting the sole proximate cause of the injuries and is such as to relieve them of liability herein. They further argue that the said act of Bates and Chavez broke the chain of causation because it was not legally foreseeable by defendants and therefore the issue of proximate cause becomes a question of law only. In the light of the evidence herein, particularly when weighed with the high standard of care that was chargeable to defendants in their dealing with and handling of highly inflammable and explosive gasoline, we are of opinion that it cannot be said, as a matter of law, it was not reasonably foreseeable that the recipients of the gasoline, under the circumstances here shown to have existed at the time and place of its sale, might thereafter so conduct themselves as to either accidentally or intentionally endanger or injure others.
A number of cases dealing with somewhat analogous situations have been cited. In Ferroggiaro v. Bowline, supra, 153 Cal.App.2d 759, 315 P.2d 446, 64 A.L.R.2d 1355, defendant motorist negligently collided with a power pole and thus extinguished the traffic signals and other lights at an intersection. Shortly thereafter the operators of two other automobiles entered the intersection at right angles and negligently collided. The court held that it could not say, as a matter of law, that the type of accident that did occur was not reasonably foreseeable by the driver of the automobile that negligently caused the extinguishment of the intersection lights and signals.
In Warner v. Santa Catalina Island Co., supra, 44 Cal.2d 310, 282 P.2d 12, a judgment of nonsuit as against defendant manufacturer of cartridges was reversed. Defendant had manufactured and sold the ammunition used in a shooting gallery where plaintiff was injured by a ricocheting particle of a bullet entering his eye. In pointing out the high degree of care chargeable to defendant in its dealing with explosives and that tests showed its cartridges did not disintegrate into powder or The case of Parker v. City & County of San Francisco, 158 Cal.App.2d 597, 323 P.2d 108, concerned an action for damages for personal injuries sustained by plaintiff passenger when struck by an automobile after alighting from a municipal bus operated by defendant. The bus parked 10.5 feet from the curb, because of the presence of a truck in the bus stop, and discharged passengers. To do so, was in violation of an ordinance making it unlawful to receive or discharge passengers unless parked as close to the right hand curb as practicable. The driver of the automobile, driving downhill, having discovered that his brakes were inoperational, pulled to the right of the bus in an attempt to stop his car against the truck's bumper, and struck the plaintiff who had just alighted from the front of the bus. In holding it to be reversible error to grant judgment for defendant notwithstanding the verdict for plaintiff the appellate court indicated that, under the circumstances there shown, the question whether it was foreseeable that if one parked the bus 10.5 feet from the curb on a street so narrow that traffic proceeding in the same direction was barred, someone might, if he lost control of his car, drive to the right rather than to the left of the bus, was one of fact for the determination of the jury.
In holding the negligence of the driver of the automobile was not, as a matter of law, a superseding cause of harm to the passenger caused by negligence of the bus owner the court dealt with the subject of proximate cause as follows (158 Cal.App.2d at pages 607-608, 323 P.2d at page 114): 'Proximate cause, in the legal sense, is that cause 'which, in natural and continuous sequence, unbroken by an efficient intervening cause, produced the injury or damage complained of and without which such injury or damage would not have occurred.' (35 Cal.Jur.2d p. 551, § 54, and many cases cited.)
'It is true that the conception of proximate cause involves an element of foreseeability. But what does this mean? It does not mean that the precise or intended consequence should have been foreseen. Foreseeability does not mean foreseeability of the actual consequence. It simply means foreseeability in the terms of causation. If the conduct of the person sought to be charged is a substantial factor in bringing about the harm, the fact that he neither foresaw nor should have foreseen the extent or nature of the harm, or the manner in which it occurred, does not prevent him from being held liable. (See many cases collected and commented on in 35 Cal.Jur.2d p. 552, § 55.)
'It is obvious that two acts of negligence may occur in bringing about a harmful result. The fact that neither party could reasonably anticipate the occurrence of the other's act will not shield him from liability so long as his own negligence was one of the causes of the injury. The proportionate degrees of the negligence of the two actors is immaterial. (See many cases commented on and collected in 35 Cal.Jur.2d p. 555, § 57.)
'It is elementary that where the negligence of the person sought to be charged continues and exists up to the time of injury the concurrent negligent act of another is not a superseding cause, but becomes a concurrent proximate cause. As is stated in 35 California Jurisprudence 2d at page 561, § 62, supported by innumerable cases: 'The fact that neither of the negligent parties could have reasonably anticipated the concurrent negligence will not shield him from liability so long as his own negligence was a proximate cause of the injury 'As before stated, ordinarily, foreseeability is a question of fact--it only becomes a question of law if reasonable men could not disagree. (See cases collected 35 Cal.Jur.2d p. 579, § 73.)'
In Richardson v. Ham, supra, 44 Cal.2d 772, 285 P.2d 269, our Supreme Court seems to have fully answered the contention of respondents that, because the acts of Bates and Chavez were heinous and criminal in nature, they therefore constitute a superseding cause the intervention of which could not be held to have been reasonably foreseeable by them. There plaintiffs sought damages for personal injuries and property damage against the owners of a bulldozer, who had left it insufficiently locked at the end of a workday, parked on top of a mesa. At night, three youthful vandals, who had been drinking intoxicating liquor, started the bulldozer, drove it around for a while on the mesa, and being unable to stop it, headed it for a canyon and abandoned it. It went off the edge of the mesa, down the hill, across a freeway, and continued on for about a mile before it was halted by a wall and utility pole. During the course, it traveled through a house and collided with a housetrailer and an automobile. The Supreme Court said, at pages 776 and 777 of 44 Cal.2d, at page 271 of 285 P.2d: 'The extreme danger created by a bulldozer in uncontrolled motion and the foreseeable risk of intermeddling fully justify imposing a duty on the owner to exercise reasonable care to protect third parties from injuries arising from its operation by intermeddlers. See Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12, and cases cited. * * *
'It is contended, however, that even if defendants were under a duty to protect plaintiffs from injuries from operation of the bulldozer caused by ordinary intermeddlers, they were not under a duty to protect plaintiffs from intermeddlers who deliberately undertook to operate the bulldozer, or, in other words, that the intentional misconduct of the young men constituted a superseding cause of plaintiffs' injuries. See Rest.Torts, § 448. It is settled, however, that 'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.' Restatement Torts, § 449; McEvoy v. American Pool Corp., 32 Cal.2d 295, 298-299, 195 P.2d 783; Benton v. Sloss, 38 Cal.2d 399, 405, 240 P.2d 575. The possibility of the intentional, wrongful misconduct that occurred in this case was not so remote as not to constitute 'one of the hazards' that would justify the conclusion that defendants' failure to lock the bulldozer was negligent. Accordingly, defendants' duty to protect plaintiffs from injuries caused by the uncontrolled and unauthorized operation of their bulldozer included a duty to protect plaintiffs from the intentional misconduct of the young men, and such a misconduct did not therefore constitute a superseding cause of plaintiffs' harm.' Other pertinent cases to the same general effect are Johnson v. Nicholson, supra, 159 Cal.App.2d 395, 324 P.2d 307; Gibson v. Garcia, supra, 96 Cal.App.2d 681, 216 P.2d 119; Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17; Sparks v. Allen Northridge Market, supra, 176 Cal.App.2d 694, 1 Cal.Rptr. 595.
The uncontroverted evidence herein establishes that Ledgerwood sold the gasoline to Bates and Chavez in violation of the express prohibiting provisions of an ordinance enacted for the protection and safety of the public in general. He did so with full awareness of his wrongful act, and no evidence was offered on his behalf by way of justification or excuse, or otherwise. The conduct of Bates and Chavez cooperated with the condition created by Ledgerwood's wrongful acts in violation of the ordinance. The possibility of the intentional, wrongful misconduct that occurred in this case was not so remote as not to be reasonably foreseeable by Ledgerwood. The fact that a crime was committed by Bates and Chavez does not serve the purpose of relieving Ledgerwood from responsibility. The flash fire-explosion might properly be found to be a following result of the risk that Ledgerwood had created. His conduct was a substantial factor in bringing about the harm; and even if it were to be assumed that he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred, such fact would not prevent him from being liable. The evidence herein is sufficient to support a finding that Ledgerwood's wrongful act constituted a proximate concurring cause of the deaths and injuries. Liability attaches to Derrington by reason of the fact that he is the immediate employer of Ledgerwood and is liable for the acts of his employee performed, as here, within the due course and scope of his employment.
Liability of Union Oil Company of California
The Union Oil service station from which the gasoline was dispensed to Bates and Chavez was operated by Derrington as lessee, under a lease by defendant Union Oil Company of California as owner lessor. (Deft. Ex. A.) All gasoline sold on the premises was delivered to Derrington by Union pursuant to the terms of a 'Retail Dealer Consignment Agreement.' (Pltfs. Ex. 5.)
Examination of the said lease fails to disclose any legal basis for holding Union liable for the negligent act of an employee of its lessee in dispensing gasoline to Bates and Chavez. It is not claimed by appellants that Union retained any right of joint control with Derrington of the leased service station. Cf. Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 384, 240 P.2d 580. The mere fact that Union, by provisions of the lease, retained the right to enter and inspect the premises, to paint at lessee's expense if the latter failed to keep the station painted, required the lessee to comply with governmental laws, ordinances and regulations, and the wearing of certain uniform insignia by lessee's employees, does not alter or change the relationship from that of landlord and tenant. Insofar as management and operation of the service station is concerned it is clear that under terms of the lease the lessee was in sole actual control. The duty of the lessor toward third persons does not extend to matters having to do merely with the lessee's management or operation of the leased premises which would be safe but for such management or operation where, as here, the lessee is in sole actual control. Goodman v. Harris, 40 Cal.2d 254, 265, 253 P.2d 447.
Appellants mainly rely upon the said Retail Dealer Consignment Agreement The said consignment agreement provides, in part, that Union will deliver to Derrington, as consignee, gasoline to be sold under the name of and at prices to be designated by Union. Title to such gasoline shall be retained by Union until sold, sales to be for cash or to credit card customers of consignor. Union will pay property taxes on all gasoline in storage at said station but consignee will pay for all expenses, costs, licenses and fees and business, excise and other taxes incident to the operation of the station business. Consignee will, at his sole expense, furnish, maintain and operate all facilities and equipment and hire and pay the wages of all assistants he deems necessary or desirable for the operation of his business and they shall be under his sole direction and control and he shall be solely responsible for their acts and omissions.
He will be exclusively liable for the payment of any and all withholding taxes on income, premiums, contributions and taxes, for workmen's compensation insurance, unemployment insurance, old age pensions, annuities and retirement benefit insurance hereinafter imposed by or pursuant to federal and state laws which are measured by remuneration paid to persons employed by him in connection with the storage and sale of gasoline hereunder and he will indemnify and hold consignor harmless from any liability for any such payments. He will also indemnify and hold consignor harmless from liability, claims or demands arising from death or injury to persons, whether or not consignee's employees, or from damage to property occurring in connection with the conduct of his business and will maintain adequate insurance against such liability. Consignee will keep accurate records of all transactions under the agreement and Union at all times reserves the right to check the stock on hand and inspect the accounts. He will keep all funds due Union segregated from his own and will pay said company the gross proceeds of the sale by him of all gasoline, from which Union will reimburse him, once a month, in a sum equal to the agreed commissions due him under the contract. In the event of any breach of the agreement Union may revoke and terminate it immediately and such agreement may not be assigned or transferred without written consent of the company.
From the provisions of the said consignment agreement it is argued by appellants that the relationship of principal and agent was established; that the subject matter of said agreement was gasoline including the manner of sale thereof, the accounting and payment therefor, and the storage and dispensing thereof to the public by the consignee for the account of Union. From this premise it is argued that the very gasoline that Derrington's employee unlawfully sold to Bates and Chavez was the property of Union and the sale thereof was within the scope and during the course of the agency relationship existing between Union and Derrington.
No case arising within this jurisdiction has been called to our attention which directly considers the question before us.
Derrington, by virtue of the provisions of the consignment agreement, became a factor of the gasolines consigned to him by Union. Section 2026, Civil Code, defines a factor as being 'an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser.' Section 2368, Civil Code, provides: 'In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted: * * * 3. To delegate his authority to his * * * servant, 'An agent, in the words of the statute, is one who represents another, called the principal, in dealings with third persons. In the language of the courts, he is anyone who undertakes to transact some business or manage some affair for another, by authority and on account of the latter, and to render an account of it. 'Agent' is a general term which includes brokers, factors, consignees, shipmasters, and all other classes of agents. * * * The words 'agent' and 'servant' are not wholly synonymous, for although both relate to voluntary action under employment and express the idea of service, the service performed by a servant may be inferior in degree to work done by an agent for his principal. Although both a servant and an agent are workers for another under an express or implied employment, an agent works not only for, but in the place of, his principal. As for tort liability, there is no distinction between the liability of a principal for the tort of his agent and the liability of a master for the tort of his servant. * * * An independent contractor may be distinguished from an agent in that he is a person who, in rendering services for another, is not under the control and direction of the other, but is in the pursuit of an independent calling, whereas an agent may be controlled by his principal with respect to subject matter of the agency.' 2 Cal.Jur.2d §§ 2, 3, 4, pp. 652-654.
'A principal is liable for the torts of his agent committed within the scope of his authority. This rule rests upon the common-law maxim of respondent superior, and accords with the general doctrine that the principal is bound by the acts of the agent within the scope of his authority. In this respect, there appears to be no fundamental distinction between the liability of a principal for the torts of his agent and the liability of a master for the torts of his servant. Indeed, the court sometimes refers to both relations in determining a particular case. And while the basic statutory law on respondeat superior is stated in Civil Code, § 2338 in terms of an agency relation, it is applicable also to the relation of master and servant. The rule that a principal is liable for the torts of his agent committed within the scope of his authority is founded on public policy, for in no other way could there by any safety to third persons in their dealings, either directly with the principal or indirectly through the instrumentality of agents. In every case the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, warrants his good conduct and fidelity. In cases where there were no express instructions for the doing of the act complained of in the particular way, the principal and agent are not joint tortfeasors as the law employs that term. The agent's responsibility is primary. He is responsible because he committed the wrongful or negligent act. The principal's responsibility is secondary, in the sense that he has committed no moral wrong, but under the law is held accountable for his agent's conduct. A principal who has been obliged to pay for the unauthorized negligent act of his agent may therefore indemnify himself to the full amount against his agent.' 2 Cal.Jur.2d § 150, pp. 842-844.
Union argues, in effect, that under said consignment agreement, it may not be held liable for any negligent act of the employee of consignee Derrington because the latter was: (1) an independent contractor not under its control or direction as to the incidents in question, or (2) if not an independent contractor but an agent, said agent was not a servant subject to any right of control by Union over the details of his physical conduct and therefore it is not liable for the torts which he may commit.
Under our California statutes (§§ 2026, 2368, Civ.Code), Derrington, as a factor of the gasolines consigned to him by Union, became the agent of the latter in his independent capacity as consignee of such In support of its contentions Union cites Texas Co. v. Brice, 6 Cir., 26 F.2d 164. This case involved an accident between a locomotive and a gasoline truck in which the fireman was killed. The truck was owned by one Hutton and was being negligently driven by one of his employees. It carried the name thereon of 'Texas Co.' The evidence showed said company had contracts with certain individuals, including Hutton, to serve as commission agents, such commission to be determined by the amount of their sales. By terms of the agreement all drivers and other servants were employed, paid and controlled by the commission agents although the latter were required by the company to prescribe certain conditions and requirements to be observed by their said employees. The court held that under the circumstances there shown the employee of the commission agent involved in the accident was not in privity with the company but on the contrary, it was understood by the company, its commission agent and by the driver that the latter was the servant of only the man by whom he was employed and the company was therefore not responsible for the acts of said driver.
Other cases relied upon by Union and holding that under somewhat similar agreements and circumstances, a distributor was not an employee of the oil company but was an independent contractor for whose delicts the company has no responsibility, are Greaser v. Appaline Oil Co., 100 W.Va. 396, 155 S.E. 170; Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503; Inman v. Gulf Refining Co., 194 N.C. 566, 140 S.E. 289.
Cases relied upon by appellants maintain that the views expressed by the above-cited earlier cases represent the minority view and that the decided weight of authority is to the contrary. Some of these cases are Gulf Refining Co. v. Brown, 4 Cir., 93 F.2d 870, 116 A.L.R. 449; Texas Co. z. Zeigler, 177 Va. 557, 14 S.E.2d 704; Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995; and Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171.
In Texas Co. v. Zeigler, supra, the court was concerned with a consignment agreement generally similar in its provisions to the one in our instant case. Like Texas Co. v. Brice, supra, cited by Union, a collision occurred with a gasoline truck belonging to the distributor of the oil company and being operated by the distributor's employee. The court stated (14 S.E.2d at page 705): 'This casr really depends upon the determination of the question whether * * * Moss [the local distributor whose employee was driving the truck], was an independent contractor in his relationship to the company, or was its servant in the relationship of master and servant, or its agent in the relationship of principal and agent. Whichever of the two latter relationships may obtain, the legal effect is the same, in contradistinction to that of the relationship of independent contractor. The question has risen in similar cases in this court and in the courts of many other jurisdictions, including that of the United States. To say that there is not a conflict of authority would be withholding frankness. We are safe, however, in saying that the decided weight of authority is that an employee who performs services under circumstances like those obtaining here occupies to his employer the relationship of servant or agent, and the employer is liable for the consequences of his acts of negligence.'
The provisions of the consignment agreement between Moss and the company were then set forth. The court then stated (at page 707): 'Only a glance at the provisions of the contract satisfies the enquirer of the fact that almost every action of C. R. Moss In Humble Oil & Refining Co. v. Martin, supra, 222 S.W.2d 995, 997, the court reviewed a judgment in favor of plaintiffs for injuries sustained when they were struck by an unoccupied automobile parked at a gasoline station for servicing, without its brake having been set. The principal contention of Humble was that the station was in effect operated by an independent contractor under a so-called 'commission agency agreement' and therefore it was not liable for the negligent acts of its commission agent or the latter's employees. The agreement was substantially in the form of that in our instant case. The court held (at pages 997, 998): 'We think the Court of Civil Appeals properly held Humble responsible for the operation of the station, which admittedly it owned, as it did also the principal products there sold by Schneier under the so-called 'Commission Agency Agreement' between him and Humble which was in evidence. The facts that neither Humble, Schneider nor the station employees considered Humble as an employer or master; that the employees were paid and directed by Schneider individually as their 'boss,' and that a provision of the agreement expressly repudiates any authority of Humble over the employees, are not conclusive against the master-servant relationship, since there is other evidence bearing on the right or power of Humble to control the details of the station work as regards Schneider himself and therefore as to employees which it was expressly contemplated that he would hire. The question is ordinarily one of fact, and where there are items of evidence indicating a master-servant relationship, contrary items such as those above mentioned cannot be given conclusive effect.'
In Brenner v. Socony Vacuum Oil Co., supra, 158 S.W.2d 171, 172, the plaintiff was negligently injured upon the premises of a gasoline station by a truck operated by one of the station attendants. Smith, the direct employer of the truck driver was a lessee and consignee of the oil company under a 'Dealer's Sales Agreement.' Again The foregoing cases, as cited by both appellants and Union, deal with factual situations whereby some instrumentality, such as an automobile or a truck owned either by the principal or the consignee, was negligently utilized. Such an instrumentality was an incident of carrying out the consignment agreement but was not the direct subject of the agreement itself. In the present case the direct subject matter of the Retail Dealer Consignment Agreement is gasoline, including the storage and the manner of sale and dispensing thereof to the public.
Gulf Refining Co. v. Brown, supra, 93 F.2d 870, is somewhat analogous factually with our instant case. There the court reviewed a judgment for plaintiff in a wrongful death action wherein decedent lost his life in a fire caused by the use of a can containing a mixture of kerosene and gasoline. It was sold by one Ford, consignee of Gulf under an agreement substantially similar to the one here before us. It was represented to be kerosene but, through the negligent acts of employees of Ford, gasoline was mixed with the kerosene. Gulf contended that the said negligent acts were not attributable to it but rather to Ford who sold and delivered the can of liquid as an independent contracter. In holding to the contrary, thereby affirming the judgment against Gulf the court said (at pages 873-874): 'When all of the fact are considered, it is seen that Ford's control over the business was limited indeed and that it was well-nigh within the power of the company as a practical matter to dictate his every action. The company owned the goods, fixed the price, limited him to cash sales or credit terms which it imposed, owned and controlled the disposition of the proceeds of sales, and required the use of signs indicating that the station, the goods, and the trucks (contrary to fact) were its own. It was a consignment business so arranged as to leave little or no discretion to the consignee in the sale of the goods. His province was merely to find customers, make deliveries, and collect the money. There was some leeway in the choice of management of employees and in the amount of their salaries which the distributor was required to pay out of his commissions. But even here the company was the dominant figure. It stipulated that the distributor carry workmen's compensation insurance and exacted an agreement of indemnity from the distributor as to the delicts of his employees, promises quite unnecessary if it had not responsibility for their acts. Finally it forbade the assignment of the contract and reserved the right to terminate it at will at any time on ten days' notice and thus completely put an end to the distributor's opportunity to profit by the connection.
'Some conflict of authority has arisen as to whether the distributor, under such a contract, in an employee of the oil company, or an independent contractor for whose delicts the company has no responsibility. Some courts have thought that the oil company has no right to supervise deliveries, select the number and character of the vehicles, choose the employees engaged in delivery, fix their wages, or control the manner in which delivery should be made; and hence have concluded that the relationship of independent contractor 'We are in accord with the latter conclusion. It is only by consideration of all of the facts pertaining to the relationship in any case, including the provisions of the contract, the actual conduct of the parties, and the conditions of the business in which they are engaged, that it can be determined whether the distributor is endowned with that control over his own methods and means of doing the work which is the test of an independent contractor * * *
'It is suggested, however, in accordance with a few of the decisions, that even if the distributor in this case were an agent or employee of the oil company, it does not follow that the company was responsible for the negligence of the helpers and employees whom he was expressly authorized under the contract to appoint to assist in the delivery of the goods and to manage and control at his own risk. [Citations.] * * *
'It is clear that a principal may not escape liability to third persons for the torts of a subagent, appointed by his agent with his consent, merely by entering into a contract with his agent under which the latter assumes sole responsibility for the subagent's conduct. The responsibility of the principal to third persons imposed by law may not be so lightly disposed of. The important question in every case is whether the agent is in truth an independent contractor or the servant of the principal. If the latter relationship is found to exist and the acts to be performed are in the course of the business upon which the servant is employed, the liability of the principal is the same whether they are performed by the servant or by an assistant duly appointed. Any other conclusion would effectually nullify the responsibility of the principal for many of the tortious acts that are committed under conditions of modern life. In the cited cases in which the relationship of independent contractor was thought to exist, the oil company was held responsible not only for the conduct of the distributor, but also for the conduct of his assistants or servants.'
We are in agreement with the reasoning of the foregoing case as applied to the facts herein. Insofar as the direct subject matter of the consignment agreement between Union and Derrington is concerned, being the storage, manner of sale and dispensing of Union's gasoline, from the terms of the said agreement showing a comprehensive control by the company over its gasoline during the process of its sale and delivery by its consignee and the evidence as a whole, a trier of fact would find support for a finding that Derrington, in the sale of the gasoline to Bates and Chavez, was not an independent contractor in his contractual relations with Union but was the factor-agent of the latter. Such evidence would further support of finding that, pursuant to such relationship of principal and agent, Union may be held liable for any delict of its agent in the sale and delivery of said gasoline to Bates and Chavez and in turn that of the servant of the consignee, Ledgerwood, to whom Derrington had delegated authority to sell and deliver the gasoline.
These matters were properly submitted for the consideration of the trial jury as questions of fact and were determined adversely to Union and in favor of plaintiffs. A motion for judgment non obstante veredicto may properly be granted when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence We are, however, unable to agree with plaintiffs in their contention that the trial judge abused his discretion in granting defendants' motions for new trials on the ground of insufficiency of the evidence. The trial court in considering a motion for new trial is not bound by a conflict in the evidence and has not abused its discretion when there is any evidence which would support a judgment in favor the moving party. Even though the only conflict may be the opposing inferences deducible from uncontradicted probative facts, the trial judge may draw inferences opposed to those accepted by the jury and may thus resolve the conflicting inferences in favor of the moving party. We cannot say that as a matter of law there is no substantial evidence herein to support a judgment for defendants and it is only on a contrary finding that an appellate court will reverse the order of the trial court granting a party a new trial.
The trial court properly struck the memorandum of costs and disbursements of plaintiffs Gonzalez as it was prematurely filed. Code Civ.Proc. §§ 664, 1034. That order is accordingly affirmed.
The judgment entered herein in favor of Union Oil Company of California on motions for judgments notwithstanding the verdicts are reversed.
The orders granting the motions of defendants for new trials are affirmed.
The appeals from the orders made granting the motion of Union Oil Company of California for judgment notwithstanding the verdict are dismissed.
It is further ordered that costs of appeal be allowed appellants.
FOX, P.J., and ASHBURN, J., concur.