Krause v. Apodaca

• Decision Date: 16 November 1960
• Citation: 186 Cal.App.2d 413,9 Cal.Rptr. 10
• Parties: Edwin H. KRAUSE, Plaintiff and Appellant, v. Daniel APODACA, Mary Apodaca, et al., Defendants, Daniel Apodaca, Respondent. Civ. 24775.
• Court: California Court of Appeals Court of Appeals

Page 10

9 Cal.Rptr. 10

186 Cal.App.2d 413

Edwin H. KRAUSE, Plaintiff and Appellant, v. Daniel APODACA, Mary Apodaca, et al., Defendants Daniel Apodaca, Respondent.

Civ. 24775.

District Court of Appeal, Second District, California.

Nov. 16, 1960.

Simon, McKinsey & Miller, Long Beach, for appellant.

Nathan Harris Snyder, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff appeals from the judgment based upon a jury verdict for defendant in an action brought by him as landlord against his tenant for damages for negligence causing a fire in the leased premises to plaintiff's damage in the stipulated sum of $4,851.02. Plaintiff claims insufficiency of the evidence and prejudicial errors of law.

In 1949 defendant became plaintiff's lessee of property known as 4737 Gage Avenue, in the city of Bell, and so continued until the time of the fire. Defendant at the time of lease was blind and has been so at all times since 1941. A painter by trade, he conducted upon the leased premises a retail and wholesale paint store wherein he continued through the sense of feeling to do varnishing, painting and similar work. In a storeroom in the back of the building was an electric hot plate which defendant used for heating and thinning varnish from time to time. On the day of the fire, November 22, 1958, he was doing some varnishing and used the hot plate to warm and thus thin the varnish. This continued until about five minutes before closing, at which time he had a can of varnish upon the hot plate warming it. He did not then realize how late it was. There were several people in the store and 'children were all over.' Defendant or his wife suggested closing and he began to do so. He testified that he locked the big sliding door, turned off two switches as he went by, one on the far east wall, then locked the double doors, flicked the switches on the machine as he passed by, threw switches off as he headed toward the front of the store, reached behind some cans and pulled switches there, went into the office and pulled three switches on a panel which was about eight feet behind a refrigerator. It does not appear that the can of varnish was ever taken off the hot plate. At 5:45 to 6:00 p. m. the fire was discovered after defendant and his wife had left the premises.

Three witnesses testified at the trial, Officer Marian B. Tatum, Jr., of the Bell Police, Deputy Sheriff William E. Carlberg, and defendant Apodaca. The two officers arrived at the scene about 7:45 p. m. and began an investigation of the cause of the fire. Their qualifications as experts are not challenged.

Officer Tatum testified that he arrived at the opinion that the fire started in the storeroom where a quart can of lacquer was sitting on a hot plate; that it had become hot and boiled over, ignited and started the fire. He also said that he expressed this opinion on the next day to defendant who said he forgot to unplug the hot plate. This alleged admission defendant denied. The officer also said that he could find no shutoff switch on the hot plate; that it was plugged into a wall outlet on the left of the refrigerator, the same one in which the refrigerator was plugged; also that there was no switch near the outlet.

Deputy Sheriff Carlberg explained his investigation methods and said he determined that the origin of the fire was at or near the refrigerator; that a can of lacquer on a hot plate had boiled over and started a blaze. Also there was a cord from the refrigerator to the wall outlet and one from the hot plate. There was no off-switch on the cord and he could find none on the hot plate; that there was no apparent flaw in the wiring from outlet to hot plate; same was intact. His expressed opinion was that the can of lacquer on the hot plate in some way caused the fire. In the can was ash or residue that 'smelled more particularly on the lacquer side rather than another type of paint.'

Defendant denied none of this testimony except the alleged conversation with Officer Tatum to the effect that he forgot to unplug the plate, the assertion that the refrigerator was electric and, by implication, the statement that the hot plate had no off-switch on it. Defendant did not undertake to explain the cause of the fire in any way. He testified on direct that he was positive he turned off all the switches when he left. On cross-examination he said he did not know whether the lacquer ever was removed from the hot plate and it was possible it was not removed; also that it was not likely that he did not throw off all switches, but possible that he did not do so. Defendant also testified there was no way on the hot plate itself to turn it off; that the way to cool it would be to throw the switch or unplug it, which statement implies that the plate was plugged into the wall and was also controlled by a switch at some undisclosed location.

We have concluded that the evidence is insufficient to support the verdict. There is no testimony as to the cause of the conflagration except that of the two experts, and no circumstantial proof except that which corroborates their opinions. The record suggests no reasonable explanation of the fire except that expressed by these experts. No question is raised as to their qualifications or their probity. Respondent merely argues that the trial judge was free to reject their testimony. Not so.

Gomez v. Cecena, 15 Cal.2d 363, 366, 101 P.2d 477, 478: 'While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact.'

Joseph v. Drew, 36 Cal.2d 575, 579, 225 P.2d 504, 507: 'It is the general rule that 'the uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted as proof of the fact.' (10 Cal.Jur. § 362, p. 1143; Estate of Warner, 167 Cal. 686, 690, 140 P. 583; Hynes v. White, 47 Cal.App. 549, 552, 190 P. 836.)'

Witkin on California Evidence, § 198, page 219: 'It is sometimes said that the jury or trial court may reject the conclusion of an expert even though it is uncontradicted. [Citations.] This does not mean, however, that the uncontradicted and unimpeached opinion testimony of an expert may be arbitrarily disregarded; the rule in this respect is the same as that which applies to uncontradicted testimony of an ordinary witness.' To the same effect see, Wirz v. Wirz, 96 Cal.App.2d 171, 176, 214 P.2d 839, 15 A.L.R.2d 1129; Estate of Kuttler, 160 Cal.App.2d 332, 337, 325 P.2d 624; Teich v. General Mills, Inc., 170 Cal.App.2d 791, 800, 339 P.2d 627.

The closest approach to overthrowing the opinions of the experts lies in the defendant's testimony that the way to cool the hot plate would be to throw the switch or unplug it, thus implying the existence of a switch at some unspecified place which would control the supply of current to the plate. The effect of the experts' testimony is to rule out any such switch and confine control of the plate to inserting or withdrawing the plug from the wall socket. Of course, defendant's version must be accepted in aid of the verdict, but when this is...