Opinion
Page __
__ Cal.App.2d __ 332 P.2d 791 Walter WILLIAMS, Plaintiff and Appellant, v. FAIRVIEW HOSPITAL ASSOCIATION Defendant and Respondent. Civ. 5731. California Court of Appeals, Fourth District Dec. 8, 1958Rehearings Denied Jan. 5, 1959.
Hearing Granted Feb. 4, 1959.
[332 P.2d 793] Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, W. W. McCray, and James R. Moore, Santa Ana, for appellant.
Ball, Hunt & Hart and Calarence, S. Hunt, Long Beach, for respondent.
MUSSELL, Justice.
This is an action for damages for personal injuries sustained by the plaintiff resulting from an explosion of a gas water heater in a hotel where he was employed as a porter. Prior to the trial the action was dismissed as to all defendants other than Fairhaven Cemetery Association (hereinafter referred to as 'Fairhaven'). Trial was had before a jury and a verdict was rendered in favor of plaintiff, awarding him $15,000 in damages. Defendant's motions for non-suit and a directed verdict were denied. Defendant also made a motion for judgment notwithstanding the verdict and, in the alternative, a motion for a new trial. The court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial without specifying the grounds upon which this motion was granted. Plaintiff appeals from the order granting a new trial, claiming that the order granting it constituted revershible error.
Defendant Fairhaven Cemetery Association, a non-profit California corporation, is the owner of the Santa Ana Hotel in Santa Ana. On January 19, 1942, Fairhaven entered into a written agreement with Santora Company, a corporation, (hereinafter referred to as 'Santora') wherein it was agreed that Santora should operate the said hotel. Santora agreed to keep and maintain the hotel building in a good condition and state of repair, to keep the premises, fixtures and equipment therein insured against loss by fire, to carry liability insurance, to pay all taxes and assessments and utility charges, and to turn over a specified portion of the income from the property to Fairhaven. The agreement was effective for one year and was renewable thereafter by mutual consent of the parties. Pursuant to this agreement, Santora operated the hotel with full control and management thereof, hiring and firing the employees and complying with the terms of the agreement until and after February 7, 1955, and there is no evidence in the record that Fairhaven assumed or exercised control over the hotel during this period.
On February 7, 1955, plaintiff, who was employed by Santora as a porter and bell hop, was counting out linen in the workroom of the hotel, directly above the boiler room, when an explosion occurred. The next thing he knew, he was injured and lying in the alley to the rear of the hotel.
The boiler room contained a heating system and two booster type hot water heaters which used gas for fuel and heated water which was circulated into a 500 gallon capacity storage tank. Fairhaven never assumed control over these heaters and did not inspect, repair or maintain them. At all times subsequent to 1949 Santora, in operating the hotel, either made, or ordered and paid for, all repairs to the equipment of the hotel, and hired, paid, supervised, and had full control of the employees working therein. Each of the heaters involved had an intake line or pipe from the storage tank equipped with valves so that the water could be shut off. The intake line fed the water into a heated coil and out through an outlet line back to the storage tank. All lines, both intake and outlet, were equipped with manually operated valves so that either or both heaters could be isolated. They were regulated by a thermostat on the storage tank and water was circulated by the termal or hearing action. Santora had the storage tank and one of the heaters replaced in 1953. This work [332 P.2d 794] was done under the direction of a superintendent of maintenance for Santora, who, from 1953 to 1955, inspected the boiler room at least once a week and never found either of the heaters in need of repair.
On February 8th the plumbing inspector for the city of Santa Ana, in investigating the explosion of February 7th, found both booster heaters displaced, the coils ruptured, and the pipe scattered. He reassembled the plumbing and ascertained that the valves on the inlet pipe, as well as those on the outlet or exhaust pipes, were closed off tight, resulting in completely shutting off the circulation of water through both heaters. The inspector's opinion was that 'the explosion was caused by all the valves on the job being closed', resulting in 'no water circulation of any kind', and that 'the building up of pressure caused the coils to blow up.'
Walter H. Ward, maintenance man for the hotel and employed by Santora, testified that for several weeks prior to the date of the explosion he had not noticed anything out of the ordinary in connection with the hot water heating system and that it was functioning continuously during the hours he worked at the hotel; that on February 7, 1955, he found that there was a hot water leak in a pipe above the third floor ceiling; that he had a pipe cut in the shop to repair the leak and then went down to the boiler room to cut the water off; that he started shutting off the valves near the booster heaters and on a second trip to the boiler room he 'cut the valves off so that it would cut the pressure off the hot water. Cut the circulation off the tank so it would stop the pressure'; that he did not do anything in closing the gas valves or in connection with changing the thermostat controls, and that when he left the boiler room, both main burners were burning; that he then went up to fix the pipe and while he was disconnecting it, the explosion occurred. In opposition to this testimony, plaintiff introduced in evidence a statement made by Ward to an investigator to the effect that Ward had stated to him that he did not remember whether he had turned the valves or not.
On an appeal from an order granting a new trial the action of the trial court will not be disturbed if upon any hypothesis it can be sustained. Its action is conclusive upon this court, unless an abuse of discretion is made to appear. Biaggi v. Ramont, 189 Cal. 675, 681-682, 209 P. 892. And in Scott v. Times-Mirror Co., 178 Cal. 688, 690, 174 P. 312, 313, it is said that 'It is the well-settled rule of this court that when the order of the trial court in granting a new trial is general in its terms it will be affirmed if it could properly have been granted upon any of the grounds upon which the motion for it was predicated.'
Section 657 of the Code of Civil Procedure provides that a new trial may be granted upon seven enumerated grounds. Section 658 of said code provides that when the application is made for a cause mentioned in the first, second, third and fourth subdivisions of section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court. The defendant herein offered no affidavits in support of these grounds and there is nothing in the minutes of the court upon which they could be based. Therefore, it must be presumed on appeal that the order was not based upon any of these grounds. Breeze v. Southern Petro Tank Line Co., 5 Cal.App.2d 507, 509, 43 P.2d 584. 'Excessive damages' is not stated as a ground for new trial in defendant's notice of motion and therefore could not have been a basis for the order. Sitkei v. Frimel, 85 Cal.App.2d 335, 337, 192 P.2d 820.
Section 657 of the Code of Civil Procedure provides in part:
'When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from [332 P.2d 795] such order it will be conclusively presumed that the order was not based upon that ground.'
Since the order herein does not specify the grounds upon which it was based, the insufficiency of the evidence cannot be urged. The remaining grounds upon which the order can be based are (1) That the verdict or other decision is against the law; or (2) Error in law occurring at the trial and excepted to by the party making the application.
In Renfer v. Skaggs, 96 Cal.App.2d 380, 385, 215 P.2d 487, 489, it is held that there are only three situations in which it has been held that a decision is 'against law'; 1. Where the court fails to find on a material issue; 2. Where the findings are so inconsistent, ambiguous, and uncertain that they are incapable of being reconciled and it is impossible to tell how a material issue is determined; and 3. The evidence is 'insufficient in law, and without conflict in any material point.' In Verzola v. Russi, 135 Cal.App.2d 330, 332, 287 P.2d 166, 167, it is said that 'There are intimations in the cases that a decision is against law and a new trial may be granted on that ground if the evidence is 'insufficient in law, and without conflict in any material point.' (Biaggi v. Ramont, 189 Cal. 675, 677 [209 P. 892]; Renfer v. Skaggs, 96 Cal.App.2d 380, 383 [215 P.2d 487]; Carvalho v. Lusardi, 114 Cal.App.2d 733, 734 [251 P.2d 37].)' Appellant contends that this ground cannot be asserted in the instant case because there was considerable conflict in the testimony as to whether Santora or Fairhaven had control of the hotel premises. We are not in accord with this contention. The evidence is that Santora operated and maintained the hotel involved, hired and fired the employees, repaired the premises, installed and paid for replacements in the equipment, kept the records, maintained the insurance and did all things necessary to keep up the premises. There is no evidence that Fairhaven took possession of the hotel or interfered with the control of the premises by Santora in any manner whatever.
Appellant argues that section 16905 of the Health and Safety Code, which provides that 'Every gas vent, gas water heater, or other gas appliance shall be maintained in good repair.', imposed upon Fairhaven, as owner of the premises, a nondelegable duty to maintain the heaters involved in a reasonably safe condition. It is further argued that the landowner owes a duty to an employee of an independent contractor to provide that employee with a reasonably safe place within which to work. There is no substantial evidence in the record before us indicating that the heaters involved were not maintained in reasonably good repair. All the evidence is to the contrary and shows that the explosion occurred as the result of Ward's action in closing the valves, confining water in heaters subject to heat from the burners, which were shut off. There is no other reasonable explanation as to the cause of the explosion.
It is conceded by the parties that Santora was an independent contractor. In McDonald v. Shell Oil Co., 44 Cal.2d 785, 788-789, 285 P.2d 902, 904, the court held that
'The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter's negligent acts in performing the details of the work. Green v. Soule, 145 Cal. 96, 99-100, 78 P. 337. An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made, Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 274-275, 246 P.2d 716, or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. Willis v. San Bernardino Lumber & Box Co., 82 Cal.App. 751, 756, 256 P. 224.'
Here, there is no evidence that the heaters were defective and no evidence that Fairhaven exercised control over them.
[332 P.2d 796] Plaintiff was an employee of Santora and it, by agreement, had assumed the duty of maintaining the hotel in a reasonably safe condition and, at the time Santora assumed that duty, the premises and equipment were in a reasonably safe condition. The evidence is that the explosion was caused by the negligent act of Ward, an employee of the independent contractor, and not by the failure of Fairhaven to maintain the heaters in good repair or to provide plaintiff Williams a reasonably safe place to work.
In support of his contention that Fairhaven is liable by reason of its failure to provide a safe place for Santora's employees to work, appellant cites such cases as Snyder v. Southern California Edison Co., 44 Cal.2d 793, 285 P.2d 912; Dobbie v. Pacific Gas & Electric Co., 95 Cal.App. 781, 273 P. 630; Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 240 P.2d 672; Freeman v. Nickerson, 77 Cal.App.2d 40, 174 P.2d 688; and Bickham v. Southern California Edison Co., 120 Cal.App.2d 815, 263 P.2d 32. In the Snyder case, supra, the Edison company entered into a contract with an independent contractor who agreed to repair and construct power lines for the company on its premises. While plaintiffs, as linemen, were installing switches at the top of a wire supporting pole, the pole, which had been installed by the contractor, fell to the ground, injuring plaintiffs. It was held that the Edison company was responsible for the installation of the pole and its maintenance; that where an activity involving possible danger to the public is carried on under public franchise or authority the one engaging in the activity may not delegate to an independent contractor the duties or liabilities imposed upon him by the public authority; that where the law imposes a definite affirmative duty upon one by reason of his relationship with others, whether as owner or proprietor of land or chattels, or in some other capacity, such persons cannot escape liability for a failure to perform the duty thus imposed by entrusting it to an independent contractor; that the owner of land is liable for the failure of an independent contractor to perform affirmative duties toward invitees and others to whom the occupier is bound to keep his premises in a reasonably safe condition. In discussing two types of situations, to wit, 1. The case of liability for misconduct of an independent contractor or his employees in the case of the so-called nondelegable duty; and 2. Those cases predicating liability on the part of the employer of an independent contractor for the misconduct of the latter in the performance of certain intrinsically dangerous work, the court said, 44 Cal.2d at page 801, 285 P.2d at page 916:
'In both of the above types of situation in which the employer of an independent contractor is liable for the negligence of the contractor or his servants, there is the limitation that such liability extends only to negligence in the failing to take the necessary precautions, failing to adopt a reasonably safe method, or in failing to produce a result which it is the duty of the employer--contractee to have attained. Such liability does not ordinarily extend to so-called 'collateral' or 'casual' negligence on the part of the contractor or his servants in the performance of the operative detail of the work. The negligence for which the employer is liable, as general entrepreneur, must be such as is intimately connected with the work authorized and such as is reasonably likely from its nature. Negligence in the doing of ordinary acts, not necessarily incidental, but only accidentally connected with the work, do not fall within the policy of the law which imposes the extraordinary liability upon the employer."
In the instant case the repair of the leaky hot water pipes by Ward was not authorized by Fairhaven and it exercised no control over the repair and maintenance of the hot water system in the hotel. Under these circumstances, liability cannot be imposed [332 P.2d 797] on Fairhaven. McDonald v. Shell Oil Company, supra.
In the Dobbie case, supra, 95 Cal.App. at page 788, 273 P. at page 633, it is held that
'The owner of premises is not an insurer of the safety of an invitee, but he owes him the duty to exercise ordinary care in seeing that the premises are in a safe condition. Means v. Southern California Ry. Co., 144 Cal. 473, 77 P. 1001, 1 Ann.Cas. 206. As the rule is stated in Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793, 'A person so invited upon the premises of another may recover from such owner 'for any injuries received owing to the dangerous condition of the premises known' to the owner and not to the person so invited; but such owner 'is not bound to keep his premises absolutely safe.' 29 Cyc. 543.''
In the Bazzoli case, supra, it is stated (Syllabus 1):
'A cement contractor undertaking to do certain cement work for a sanitarium on its premises is a business visitor toward whom the sanitarium and its servant must exercise ordinary care to keep the premises in a reasonably safe condition or who must be warned of danger, and the duty is not limited to conditions known to be dangerous, but extends to those which might have been found dangerous by the exercise of reasonable care.'
In the Freeman case, supra, 77 Cal.App.2d 40, 174 P.2d 688, it is said that in affording an invitee reasonably safe premises and conditions on which to carry out the purpose of the invitation, it is the duty of the owner to advise the invitee of hidden dangers known to the owner and not reasonably apparent to the invitee. In the Bickham case, supra, it was held, 120 Cal.App.2d at page 819, 263 P.2d at page 34, that plaintiff, as an employee of the contractor was engaged in work which was of mutual advantage to himself and appellant, and was therefore a business licensee, or invitee (Rest., Torts, Secs. 330, 332), and that it was appellant's duty to furnish him a safe place in which to work.
In the instant case the evidence shows that the explosion did not occur as a result of Fairhaven's failure to furnish a reasonably safe place to work but that it was occasioned by the negligence of Ward, an employee of Santora, over whom Fairhaven had no control, active or otherwise. Fairhaven was not an insurer of the safety of the employees of Santora and the evidence does not indicate a lack of ordinary care on its part in maintaining the premises involved.
In Sabin v. Union Oil Co., 150 Cal.App.2d 606, 608, 310 P.2d 685, 687, the court said:
'Appellant admits that it is the general rule that when property is turned over by the owner to an independent contractor to do work thereon the owner is not liable to third persons for the negligence of the independent contractor. McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902; Green v. Soule, 145 Cal. 96, 78 P. 337. However appellant seeks to bring this case within certain exceptions to this general rule, i. e., 1. where the employee is injured by some condition of the owner's premises over which the owner retains control (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69) or 2. where the owner interferes with or assumes to direct the employee in the manner or method of performing the work (Revels v. Southern California Edison Co., 113 Cal.App.2d 673, 248 P.2d 986) the owner will be liable.'
Appellant has not brought the instant case within the exceptions to the general rule announced in the foregoing case.
The trial court's order denying a motion for judgment notwithstanding the verdict is reviewable on this appeal from the order granting the new trial (Upper v. Poteet, 116 Cal.App.2d 5, 6, 253 P.2d 486), and since we have concluded that the evidence is insufficient in law and without [332 P.2d 798] conflict in any material point to support a judgment for plaintiff, it follows that the court erred in denying the motion for judgment notwithstanding the verdict.
We further conclude that it was error to instruct the jury herein on the doctrine of res ipsa loquitur. In order to apply this doctrine it must appear that the defendant had sufficient control or connection with the accident that it can be said that it was more probably than not responsible for plaintiff's injury. Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344. In Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 486, 247 P.2d 335, it is held that the doctrine applies if the accident in question would not ordinarily have happened in the absence of negligence and if the defendant had exclusive control over the instrumentality causing the injury. In the Zentz case, supra, 39 Cal.2d at pages 443-444, 247 P.2d at pages 347, 348, it is said that the requirement of control is not an absolute one; that the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant; that the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident. Since plaintiff failed to establish control, right of control, or possession in Fairhaven of the heaters involved at the time of the explosion, the doctrine of res ipsa loquitur was not applicable.
The order of the trial court in granting a new trial must be affirmed if it could properly have been granted on the ground that the court erred in not granting the motion for judgment notwithstanding the verdict or error in instructing the jury on the doctrine of res ipsa loquitur. Under the circumstances shown by the record we are unable to hold that the trial court abused its discretion in the order made granting a new trial. In view of this determination we deem it unnecessary to pass upon other points raised.
The order granting a new trial is affirmed.
GRIFFIN, P. J., and SHEPARD, J., concur.