Hergenrether v. East

• Decision Date: 23 June 1964
• Citation: 39 Cal.Rptr. 4,61 Cal.2d 440,393 P.2d 164
• Court: California Supreme Court
• Parties: , 393 P.2d 164 Richard HERGENRETHER, a Minor, etc., et al., Plaintiffs and Appellants, v. Roy EAST et al., Defendants and Respondents. * Sac. 7545.

Page 4

39 Cal.Rptr. 4

61 Cal.2d 440, 393 P.2d 164

Richard HERGENRETHER, a Minor, etc., et al., Plaintiffs and Appellants, v. Roy EAST et al., Defendants and Respondents. ^*

Sac. 7545.

Supreme Court of California, In Bank.

June 23, 1964,

Rehearing Denied July 22, 1964.

William W. Coshow, Redding, Earl F. Hedlund, Red Bluff, and William B. Boone, Santa Rosa, for plaintiffs and appellants.

Hagar, Crosby & Rosson and Edwin A. Heafey, Jr., Oakland, as amici curiae on behalf of plaintiffs and appellants.

Newton, Braun & Goodrich, Newton & Braun and William J. Braun, Redding, for defendants and respondents.

PEEK, Justice.

Plaintiffs George Hergenrether and Richard Hergenrether, father and minor son, appeal from a judgment for defendants notwithstanding verdicts for plaintiffs in an action for personal injuries sustained in an automobile accident resulting from the negligent operation of defendants' vehicle by an unapprehended and unidentified thief.

The defendants Roy East and Robert Collier were employed by defendant Carl Christy, a Stockton roofing contractor, to work on a construction job near Redding. On two prior occasions they had been in Redding on their employer's business and on the instant occasion had spent the previous two evenings there. At about 4:30 o'clock on the afternoon of July 12, 1961, when work for that day had been completed, East and Collier drove into redding in Christy's two-ton truck in search of food and cheaper lodgings which, they had been advised, they could find on Galifornia Street. Their use of the truck for this purpose had been authorized by Christy.

When East, who was the driver and had control of the truck, parked the vehicle on California Street he left the doors of the truck unlocked and the keys in the ignition. Personal property, including a portable radio, was left in the cab of the truck, and some $3,000 worth of roofing equipment, guns and a barrel of gasoline were left in the bed of the truck. They spent the evening within the neighborhood, ate at a chop suey establishment, drank at a bar, and bought beer at a liquor store. They registered at a cheap hotel in the immediate victinity and before checking in returned to the truck to get their personal gear. They again left the vehicle parked as before with the doors unlocked and the key in the ignition.

Some time during the evening the truck was stolen. At approximately 1:00 on the following morning it was observed heading south from Redding on Highway 99. At that point the highway was a two-lane road and the truck with its unknown driver was weaving from side to side across the center dividing line of the highway. Topping the crest of a hill the truck again verred to the wrong side of the center line and collided head on with the northbound vehicle in which plaintiffs were riding. Both plaintiffs were seriously injured. The driver of the truck escaped without being identified.

As will hereinafter appear, the character of the neighborhood wherein East parked the vehicle and left it exposed to theft is critical to a proper resolution of the issues which are presented. Hence the evidence of record bearing thereon must be viewed in accordance with the well established rules on appeal from judgments notwithstanding the verdict. In McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, at page 703, 343 P.2d 923, at page 926 we said: 'We are bound by the familiar rule stated in Neel v. Mannings, Inc., 19 Cal.2d 647, 649, 650, 122 P.2d 576, 577: 'it appears to be the well-established law of this state that the power of the trial court to set aside a verdict and enter a contrary judgment is abolutely the same as its power to grant a nonsuit. (Citations.) Therefore, a motion for judgment non obstante veredicto may properly be granted 'when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' (Citation.)"

In view of the foregoing the evidence submitted by plaintiffs is most significant. The then mayor testified that the neighborhood in which the truck was parked was the 'skid row' of Redding; that it was a 'blighted area and certainly easily identifiable. I think anyone any stranger coming into our city who has had the unfortunate experience of driving down it (California Street) * * * would recognize the problem and see what type of area it was, and what type of people frequented the area.' Later in his testimony he stated that California Street had been a 'very well established skid row' for more than twenty years; that there were several persons who had been arrested as many as one hundred times only to be released and returned to the area; that there were many others who had been arrested 'time after time' only to be released; and that the advisability of continuing to make arrests with almost immediate releases had been questioned by law enforcement agencies. Other witnesses testified that the arrests in the main were for drunkenness, disturing the peace, vagrancy, disorderly conduct and also for some automobile thefts; that there was a 'tremendous congregation' of such persons usually 'milling' about the streets and that the situation then existing was one of great concern to local authorities. Typically, the business places within the area consisted of pawn shops, second hand stores, surplus stores, a rescue mission, card rooms, a liquor store, numerous bars and vacant buildings. The unlocked truck with ignition keys exposed was parked in the midst thereof.

After plaintiffs rested their case in the trial court all defendants moved for nonsuit, which was granted as to Collier only, apparently on the ground that he had no control over the...