Golden v. Conway

• Decision Date: 01 March 1976
• Citation: 128 Cal.Rptr. 69,55 Cal.App.3d 948
• Court: California Court of Appeals Court of Appeals
• Parties: Lily GOLDEN, Plaintiff, Appellant, Cross-Defendant and Respondent, v. M.T. CONWAY, Defendant, Appellant, Cross-Complainant and Respondent. Civ. 33680.

Page 69

128 Cal.Rptr. 69

55 Cal.App.3d 948

Lily GOLDEN, Plaintiff, Appellant, Cross-Defendant and Respondent, v. M.T. CONWAY, Defendant, Appellant, Cross-Complainant and Respondent.

Civ. 33680.

Court of Appeal, First District, Division 1, California.

March 1, 1976.

Thornton, Taylor & Downs, by R. Richard Audley, San Francisco, for plaintiff and cross-defendant.

Carroll, Burdick & McDonough, by John W. Mays, San Francisco, for cross-complainant and defendant.

SIMS, Acting Presiding Justice.

Plaintiff and cross-defendant Golden, a landlord, and defendant and cross-complainant Conway, her tenant, have each appealed from a judgment denying any relief to either in an action in which the landlord sought to recover the damages to her premises, and the tenant sought to recover the damages to his personal property from a fire which occurred on March 27, 1967, that apparently started in, by or near a wall heater on the premises. The judgment was entered on verdicts against each claimant which were directed by the court on its own motion with the acquiescence of plaintiff-landlord. The tenant filed a timely motion to set aside and vacate the judgment and for judgment in his favor, and a motion for new trial. The landlord countered with a proptective motion for new trial to be granted her in the event the court ruled favorably on the tenant's motion. All these motions were denied, the tenant appealed, and the landlord followed with her appeal from the judgment entered against her.

The action was brought by the landlord in municipal court to recover some $2,900 in damages for injury to her real property. In her first cause of action she sought recovery against a named contractor who had installed a wall panel heater in the premises and the designers, manufacturers, assemblers and sellers of the heater, named as fictitious defendants. She alleged that the wall panel heater was unsafe for its intended use by reason of a defect in its design, manufacture and assembly which allowed it to malfunction and catch on fire. No such defendants were served or made party to the action. The landlord's second cause of action alleged negligence in the design, manufacture, assembly, sale, delivery, installation, inspection and servicing of the wall panel heater by the named contractor and the fictitious defendants, and negligence in the activities and operations conducted on the premises by the tenant, which proximately caused the fire and damage. The named contractor was never served, and was never made a party to the proceedings.

The case was transferred to the superior court when the tenant filed an answer, counterclaim and cross-complaint in which he sought some $9,000 for loss of inventory and denied any responsibility for the fire. He sought recovery against plaintiff for her negligence in maintaining a known dangerous condition and failing to notify the tenant of the danger, for her failure to comply with a statutory duty to maintain the wall panel heater in good repair. He also sought recovery against the contractor and other fictitious defendants on the theory of strict liability, but never effected service on anyone but plaintiff.

At the trial it was the landlord's contention that the tenant, or his employee who was living on the premises, left combustible materials too close to the heater so that they became overheated, ignited and started the fire. Her case was supported by the testimony of the plaintiff that there were remnants of burnt clothes near a hole which had burned through the floor in front of the heater, and the testimony of a fire insurance adjuster, a consulting fire investigator, and a heating company proprietor which indicated that the fire must have started from combustible material which was placed too close to the heater, and not from any malfunction of the heater.

The tenant conceded that the landlord was not directly responsible for the fire. He contended that the fire was caused by a defect in the heater installed by the contractor a year or two before the fire. He sought recovery on the following theories: (1) that the contractor was acting as an employee of the landlord; (2) that if the contractor was acting as an independent contractor, the landlord, as his principal, was liable in any event because (a) she was negligent in hiring him because he was an unlicensed contractor, and (b) the duties he performed were not delegable; and (3) that the landlord was strictly liable in tort. In support of the tenant's case the tenant and two of his employees, one of whom was residing on the premises the night of the fire, testified that there was no combustible material near the wall panel heater. A consulting engineer testified that the gas wall heater was installed in violation of certain building code provisions requiring adequate ventilation and flues. According to the engineer the heater could not get sufficient oxygen, soot formed as a result of improper combustion, and the soot, dislodged and heated by the heater, rolled out onto the floor and like charcoal burned through the floor in front of the heater. Further evidence is discussed below as pertinent.

After both sides rested, the court, in chambers, reviewed the proposed instructions with counsel for each party. The court questioned whether the tenant had shown any negligence on the part of the landlord for the acts of the contractor, and indicated it was not prepared to give an instruction on strict liability, and was not prepared to hold the landlord for any code violation because of insufficient air supply or venting of the heater. The following morning, without the benefit of a motion from either party, the court indicated it was considering directing a verdict against the claim of the landlord because the record was devoid of 'any facts pointing to the negligence of Defendant (tenant)' and against the claim of the tenant 'because of the Court's feeling that vicarious liability on this factual basis should not be and could not be found . . ..' ¹

'A nonsuit or a directed verdict may be granted 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantially to support a verdict in favor of the plaintiff if such a verdict were given.' Newson v. Hawley, 205 Cal. 188, 270 P. 364 (other citations omitted.) Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it up appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. (Citation.) . . . In other words, the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a new trial, it may not do so on a motion for a directed verdict.' (Estate of Lances (1932) 216 Cal. 397, 400--401, 14 P.2d 768. Accord Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 745, 87 Cal.Rptr. 376, 470 P.2d 360; and McNeal v. Greenberg (1953) 40 Cal.2d 740, 743, 255 P.2d 810.) ²

I

Since the landlord deferred to the court's announced intention, and because the parties have stipulated that the tenant should be deemed the appellant, and open and close, we first address ourselves to his contentions.

Negligence

'Under common law, the general rule is that there is no liability from the landlord either to a tenant or others for the defective condition of the demised premises whether existing at the time of the lease or developing thereafter. This rule applies in California in the absence of: (1) concealment of a known danger, (2) an express covenant to repair or a promise to repair supported by consideration, or (3) a statutory duty to repair. (Citation.)' (Del Pino v. Gualtieri (1968) 265 Cal.App.2d 912, 919--920, 71 Cal.Rptr. 716, 721. See also Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 63, 101 Cal.Rptr. 473; and Rest.2d Torts, § 365. Cf. Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 799--801, 111 Cal.Rptr. 122.) In the case last cited the court disapproved the foregoing doctrine as incorporated in BAJI No. 8.40 (Landlord's Liability for Accident on Leased Premises). The court reviewed Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, in which it was determined that the liability of a possessor of land was to be governed by the provisions of section 1714 of the Civil Code, ³ and that no public policy required that an exception be carved out of the statute for tenants in possession when they were sued by their guests. The decision examined the policy involved in the rule referred to above in the light of the rationale of Rowland v. Christian, noted existing precedents on the subject in this state (rejecting Del Pino v. Gualtieri, supra, and noting that the remarks in Fakhoury v. Magner, supra, on the subject of defective premises were dicta), and observed the trend in other states. It concluded: 'In light of the foregoing discussion, it is apparent that the trial court was incorrect in employing instructions based on the superseded common law rules instead of on section 1714 of the Civil Code. This was reversible error inasmuch as the plaintiff was entitled to have the jury instructed on every theory of the case that was supported by the evidence, including negligence. (Citation.)' (35 Cal.App.3d at p. 802, 111 Cal.Rptr. at p. 126. See also Uccello v. Laudenslayer (1...