Gordon H. Ball, Inc. v. Parreira

• Decision Date: 01 April 1963
• Citation: 214 Cal.App.2d 697,29 Cal.Rptr. 679
• Court: California Court of Appeals Court of Appeals
• Parties: GORDON H. BALL, INC., Plaintiff and Appellant, v. John PARREIRA, Jr., Defendant and Respondent. Civ. 197.

Page 679

29 Cal.Rptr. 679

214 Cal.App.2d 697

GORDON H. BALL, INC., Plaintiff and Appellant, v. John PARREIRA, Jr., Defendant and Respondent.

Civ. 197.

District Court of Appeal, Fifth District, California.

April 1, 1963.

Harold J. Scott, San Francisco, for appellant.

Joseph J. Lebeda, Atwater, for respondent.

CONLEY, Presiding Justice.

On a Friday afternoon Wayne Haapala, a construction superintendent of Gordon H. Ball, Inc., a corporation, was flying in its 1956 Cessna Model 182 airplane from Oakland to Three Rivers when he was forced to make a landing near Atwater due to the exhaustion of his fuel or because of some defect in the plane. He attempted to land at the airport, but by mischance crashed in a neighboring oat field, which constituted part of defendant's farming property. The nose wheel of the plane was torn off, and the craft came to rest on its back after the emergency landing.

Fortunately, the pilot was not injured, and he walked off of the filed without talking with the defendant. The plane was outfitted with valuable navigating and operational equipment including a clock, Narco Omnigator, a Narco Simplexer and Power Pack, an ADF power supply amplifier and a battery, all of which were alleged to be of the value of $1,993.45.

Mr. Haapala went on to his home at Three Rivers that night, but flew back the next day with one Norsigian, whose business at the Fresno Air Terminal included the preservation and recovery of crashed planes. The two examined the overturned aircraft, decided that it would have to be disassembled in order to move it, took the battery out and laid it on the ground, noted that all of the other items of navigating equipment were still present in the plane and returned to Fresno. Mr. Norsigian testified that the field in which the plane was left was muddy and that the airplane could not be removed unless it were dismantled.

On the next day, Sunday morning, Mr. Norsigian and one Cliff Bryant, a Deputy Sheriff of Fresno County who was not on duty and merely accompanied Mr. Norsigian as a friend, went to the ranch and told Mr. Parreira that he had been authorized by the insurance company to pick up the plane. Norsigian talked to defendant's brother, who complained that other aircraft had previously crashed on the ranch and had done a lot of damage for which no payment had ever been made. Bryant spoke up and said that he was from the sheriff's office at Fresno. Thereafter, defendant came to Norsigian's car and refused to permit them to take the plane; the debate became acrimonious, and Parreira and Bryan engaged in a fist fight. The defendant himself developed the facts as follows:

'A. Well, my brother--first my brother called me up to the house and told me, he said, 'There is someone here to take the plane.' So I went down there and when I got there this fellow was arguing with my brother and so my brother said, 'Well, here is my brother, you talk to him.' So I asked the fellow, I said--if he was the owner of the aircraft and he says, 'No.' I asked him who is the owner of the aircraft and he said Gordon Ball and I said, 'Is Gordon Ball here?' And he said, 'No, sir.' And I asked him--I says, 'Is the Civil Aeronautics guy around?' 'No, sir.' 'Insurance man?' 'No, sir.' I said, 'There is some damages here, who are going to pay for them?' He said, 'Gordon Ball.' And so I asked him, I says, 'Well, how do I know that I am going to get my money for damages here if somebody doesn't sign something or say something to the owner of the aircraft?' He said, 'Well, I am a Deputy Sheriff and I was told to come and get the aircraft.' Him and a couple of other fellows--his mother and father was there. And he said that he was told to pick to aircraft up and I asked him if he had any written statement or anything from Gordon Ball. No, he didn't. He was a Deputy Sheriff. And all this time he had his badge open, his wallet open and his badge showing. He kept insisting that he was a Deputy Sheriff and I told him, I says, 'Are you from Fresno or from here?' And he said, 'From Fresno.' And I said, 'You have no jurisdiction in here whatsoever, you have got no written statement here saying that you could take the aircraft or anything.' I asked him three or four times in a good way to leave the premises and to go get someone that had something to do with the aircraft, insurance man, Civil Aeronautics, or Gordon H. Ball, and they could take the aircraft. About that time he was getting hot because he was a Deputy Sheriff and wanted me to know and I said, 'That don't mean nothing here. You are out of your jurisdiction and you have nothing here with that badge, that means nothing.' About that time he grabbed me by the wrist and started shaking me around and we ended up in a fight. So----

'* * *

'Q. So in your conversation with him you told him that you wouldn't let him take the plane until he showed you authority or provided for the damages, is that right? A. That is right.

'Q. Had this been a matter that you and your brother had discussed, or what? A. Yes--well, should I say that?

'Mr. MacNICOL: Just answer his question.

'A. Yes, it was.

'MR. SCHLAGETER: Q. And what was it? What conclusion did you come to, both you come to by reason of this conversation? A. Other aircrafts had fell there and they have always either had the Civil Aeronautics there or insurance man, and on this case there was none.

'Q. But you had decided, had you not, that you wouldn't release the airplane to anyone until--until provision had been made for the damages, is that right?

'MR. MacNICOL: Plus Ball's authorization.

'A. Plus Ball's authorization that them people were to take the aircraft. I mean we would not have objected at no time if Gordon Ball himself personally or a written deal from him or anything that would have assured us that Gordon Ball was the owner and that somebody was going to pay for damages.'

Norsigian then went to Merced and returned with the Merced County Sheriff. The defendant, at the sheriff's request, permitted Norsigian to remove and take certain parts of the plane. On the following Tuesday a person authorized by the insurance company came to the ranch from San Jose and, there having been an undertaking to pay defendant his damages, he was permitted to remove the aircraft. In the meantime, however, the valuable equipment which had been attached to the plane had disappeared.

No one had hired a guard or watchman to take care of the aircraft; it was left in the field; numerous persons, known and unknown, visited the scene of the crash from the time it occurred until the removal of the plane by the plaintiff's authorized representative. One of plaintiff's witnesses testified that it was not customary to post guards or watchmen at wrecked planes.

The propriety of the decision of the trial court must be tested by the stringent rules relating to nonsuit.

'The general rule governing nonsuits is that a motion therefor presents a pure question of law, and may be granted only when disregarding all conflicting evidence and accepting plaintiff's evidence at its full value, herein indulging in plaintiff's favor every legitimate inference which may be drawn from the evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in plaintiff's favor, if such a verdict were given.' (Carey v. City of Oakland, 44 Cal.App.2d 503, 509, 112 P.2d 714, 717.)

In passing on a motion for nonsuit the trial court must assume for the purpose of deciding the question that every item of evidence which favors the plaintiff and which is not inherently improbable is true, and this requirement extends to every inference which is fairly deducible from the evidence and every presumption favoring the plaintiff.

(See also Downey v. Martin Aircraft Service, 96 Cal.App.2d 94, 97, 214 P.2d 581; 16 Cal.Jur.2d, Dismissal, Discontinuance, and Nonsuit, § 45 et seq., p. 208 at seq.)

When the airplane first landed in the oat field and flipped over on its back, the defendant was not by that fact alone subjected to any liability for its safekeeping. At that moment, although plaintiff's employee entered upon defendant's land without his permission, the pilot was not performing an illegal act, because he was making a forced landing (Pub.Util.Code, § 21403, subd. (a)); the plaintiff and the pilot, however, did become responsible to the defendant under the cited section for any damage caused thereby.

Appellant relies in part upon sections 1815 and 1816 of the Civil Code relating to involuntary deposit. Each of those sections presupposes the express or implied acceptance of the personal property involved in order to make a depositary liable for its care. The adjective 'involuntary' qualifying the...