Burger v. Burger

• Decision Date: 18 October 1955
• Court: California Court of Appeals Court of Appeals
• Parties: Benny B. BURGER and Mamie E. Harper, Harry A. Harper, Plaintiffs-Respondents, v. Maxine BURGER and Ann Stewart as Executrix of the Estate of H. W. Peavler, deceased, Defendants, Maxine Burger, Appellant. Civ. 20843.

Page 926

288 P.2d 926

136 Cal.App.2d 360

Benny B. BURGER and Mamie E. Harper, Harry A. Harper, Plaintiffs-Respondents, v. Maxine BURGER and Ann Stewart as Executrix of the Estate of H. W. Peavler, deceased, Defendants Maxine Burger, Appellant.

Civ. 20843.

District Court of Appeal, Second District, Division 2, California.

Oct. 18, 1955.

Dryden, Harrington, Horgan & Swartz, Los Angeles, for appellant.

Theodore E. Bowen, Reginald L. Dyer, Los Angeles, for respondents.

MOORE, Presiding Justice.

Maxine Burger operated a restaurant in Sun Valley, which lies within Los Angeles. The property was leased to her by its owner, H. W. Peavler. On August 13, 1951, she attempted to remove the asphalt tile from her kitchen floor. After she had succeeded with tools in clearing out the tile, it was necessary to clean a tarry substance from the concrete. Cleansers having failed, she applied gasoline; first one gallon, then two. Her father, Dee Harper, and her intimate, Benny Burger, entered the kitchen while the volatile fluid was on the floor. At 4:00 p. m. an explosion occurred. Dee Harper was killed; Benny was severely burned and suffered incurable injuries. The widow, Mamie Harper, joined Benny in this action to recover damages from Maxine and the estate of her landlord, H W. Peavler. Upon the two verdicts returned for the two plaintiffs, a judgment was entered against both defendants, Maxine Burger and the Peavler Estate for $10,000, and a second judgment against both defendants in favor of Benny Burger for $6,500. On the hearing of the motion for a new trial, the judgments against Ann Stewart, executrix of the Estate of Peavler, was set aside. Maxine has appealed from both judgments on the grounds about to be explored.

I.

The complaint does state a cause of action in favor of each plaintiff. The names of the parties litigant, the act of negligence on the part of defendants, the injuries suffered by virtue of such negligence, the extent of damage and its value, the nature of the event caused by such negligence, the relationship of plaintiffs and defendants at the scene of the accident, to wit, invitor and invitee--such facts were alleged in logical order. Such allegations state a cause of action against each defendant and in favor of the two plaintiffs. Moreover, the trial proceeded upon the assumption that a cause was stated on behalf of each plaintiff and the witnesses were examined and cross-examined with a view to proving or defeating the causes alleged. Not only was no objection made that was based upon the invalidity of the complaint, but she emphasized the issues by her affirmative defenses and at the trial, contended that she was not negligent; offered instructions in support of her theories; offered evidence of knowledge on the part of respondents as to the presence of the gasoline and resisted offers of evidence and instructions. Such behavior estops her from complaining of the inadequacy of the pleading. Code Civ.Proc. sec. 590; McAllister v. Union Indemnity Co., 2 Cal.2d 457, 460, 42 P.2d 305. Also, the issues were emphasized.

II.

The relationship of Benny Burger and Maxine Burger as husband and wife was not established. Of course, the proof of such union would be fatal to Benny's claim. But, pursuant to the stipulation of the parties, and the law, 1 C.J. 276, 605; 1 C.J.S., Abatement and Revival, § 182 the court determined that issue and its instruction to the jury was in accordance therewith. Appellant now maintains that the court's finding was contrary to law. On June 18, 1948, Maxine obtained an interlocutory decree of divorce from Carl Hermanns. Forthwith, she and Benny Burger journeyed to Yuma, Arizona, where on June 20 they celebrated a ceremonial marriage. Thence, they proceeded to Oklahoma where they lived for a year as husband and wife. About July 8, 1949, Maxine received her final decree and continued to live in Oklahoma, openly, with Benny as his wife until about August 1 when they returned to Los Angeles. Judge Willis' finding was that the marriage at Yuma was void; that their living together in Oklahoma where the common-law marriage is recognized, did not confer upon them the sanctity of wedlock; that Benny and Maxine at no time executed an agreement of marriage; that no evidence was introduced that a commonlaw marriage ever came into existence; that to the day of the accident they considered themselves married by virtue of the ceremony at Yuma in 1948, and 'continued to live together and introduced each other as husband or wife, solely by virtue of such ceremony without a peep of a common-law marriage'; that therefore, 'as far as the marital relations and obligations are concerned, they are strangers to each other, bearing a similar name only and living together in * * * a meretricious relationship.'

Since Maxine had no legal capacity to contract a marriage for a year after June 18, 1948, their living together during that period is not proof of a common-law marriage. If they lived together for a year in an adulterous relationship, the same relationship was presumptively continued after July 9, 1949, especially in view of their reliance upon the legality of the ceremony at Yuma.

Appellant contends that where a second marriage is contracted in good faith where one of them has obtained only an interlocutory decree and the parties continue to cohabit without change during the period of the interlocutory decree, this relationship ripens into a common-law marriage, citing Mantz v. Gill, 147 Okl. 199, 296 P. 441; Hess v. Hess, 198 Okl. 130, 176 P.2d 804, 805. Such authorities declare the law of Oklahoma, not of California. Also, appellant insists that respondent Benny is estopped to deny the validity of the marriage, citing Rediker v. Rediker, 35 Cal.2d 796, 805, 221 P.2d 1, 20 A.L.R.2d 1152. Such estoppel was not pleaded. Moreover, he did not procure Maxine's divorce nor was he a party to her action. She was at no time misled by the acts of Benny with reference to the alleged common-law marriage. She pleaded no common-law marriage, but relied only upon the empty, void cermonial at Yuma.

III.

The evidence amply warrants the judgments for both plaintiffs. Appellant argues that Mrs. Harper's husband was in the kitchen at the time of the explosion, knew the gasoline was there, assumed the risk and was violating the city ordinance that forbade the use of gasoline under the circumstances. But there is no evidence that he knew the floor was being cleaned with gasoline. In the absence of such evidence, the presumption that he used ordinary care must prevail. Chambers v. Spada, 133 Cal.App.2d 231, 283 P.2d 1067. At any rate, the jury was privileged to find in accordance with the presumption and against the testimony of Mrs. Perry who was not on appellant's premises the day of the explosion prior to the fire. While she testified that at her cafe, Maxine said in the presence of Mr. Harper that she was cleaning the Front Page Kitchen with gasoline, the jury was not obliged to believe her testimony as against the presumption that Mr. Harper exercised reasonable care, to protect himself.

IV.

Appellant contends that the instruction on res ipsa loquitur was prejudicial. ¹ The instruction is taken from B.A. J.I., 206-B, and was approved in Hinds v. Wheadon, 67 Cal.App.2d 456, 466, 154 P.2d 720. No good reason is suggested why the rule should not apply to explosions. Indeed, its application to the explosion of a boiler was approved in Judson v. Giant Powder Co., 107 Cal. 549, 557, 562, 40 P. 1020; 29 L.R.A. 718. There is nothing in Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574 or in Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, to the contrary. The latter decision merely quotes Professor Prosser on the three conditions which must occur to make the doctrine applicable. ² The cleaning of her kitchen floor by appellant does not ordinarily cause injury, in the absence of negligence. The gasoline was under appellant's exclusive control. Respondents did nothing to contribute to the accident. Clearly, the instruction was proper. See Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344; Judson v. Giant Powder Co., supra; Borrow v. El Dorado Lodge, 75 Ariz. 139, 252 P.2d 791, 794; Harding v. H. F. Johnson, 126 Mont. 70, 244 P.2d 111, 117. The doctrine of res ipsa loquitur may be invoked 'where the accident is of such a nature that it can be said, in the light of past experience, that it was probably the result of someone's negligence and that the defendant is probably the responsible party.' Knell v. Morris, 39 Cal.2d 450, 453, 247 P.2d 352, 353.

V.

The court correctly declined to give the instruction ³ offered by appellant with reference to her duty to invitees. To give it would have been to repeat what the court had adequately declared by other instructions with reference to the rights of invitees and licensees, the duties of the owner or occupant, the overt act, refraining from intentional harm, ordinary care, assumption of risk, dangerous conditions; knowledge of dangers and contributory negligence. The offered instruction would have contributed nothing additionally to the enlightenment of the jury. Neither do the authorities cited by appellant: Mautino v. Sutter Hospital Association, 211 Cal. 556, 296 P. 76; Walker v. Greenberger, 63 Cal.App.2d 457, 147 P.2d 105; Reagh v. San Francisco Unified School District, 119 Cal.App.2d 65, 259 P.2d 43. In the first two, the invitee could see the danger of the surface of the floor; the third merely states the general law. There was no satisfactory evidence that Mr. Harper knew that gasoline was being used to clean the floor. The jury preferred to accept the explanation of the brown spots on his shirt rather than to infer that they were tar stains acquired at appellant's kitchen.

VI.

Appellant assigns as prejudicial the court's instruction on the city ordinance governing the uses of inflammable liquids. ⁴ She maintains that...