Levizon v. Harrison

• Decision Date: 20 December 1961
• Citation: 198 Cal.App.2d 274,18 Cal.Rptr. 284
• Parties: Helen M. LEVIZON and Stephen Levizon, a minor, by Helen M. Levizon, his Guardian ad litem, Appellants, v. Harry HARRISON, doing business under the fictitious name of Southern Parts and Wrecking Company, Respondent. Civ. 25157.
• Court: California Court of Appeals Court of Appeals

Page 284

18 Cal.Rptr. 284

198 Cal.App.2d 274

Helen M. LEVIZON and Stephen Levizon, a minor, by Helen M. Levizon, his Guardian ad litem, Appellants, v. Harry HARRISON, doing business under the fictitious name of Southern Parts and Wrecking Company, Respondent.

Civ. 25157.

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

Dec. 20, 1961.

Rehearing Denied Jan. 12, 1962.

Hearing Denied Feb. 14, 1962.

James G. Butler, Los Angeles, for appellant.

Moss, Lyon & Dunn, Robert C. Nye and Henry F. Walker, Los Angeles, for respondent.

LILLIE, Justice.

The present action sought damages for alleged wrongful death. On February 10, 1959, the decedent went to the defendant's premises to purchase an automobile part; the part, a universal joint, had to be removed from an abandoned automobile, a 1950 Plymouth. It was necessary for decedent to get under the Plymouth; while under the car and after it had been jacked up, the car fell on him and he was killed. The complaint was in two counts: The first being predicated on negligence, the second on wanton and reckless misconduct. A motion for nonsuit was granted as to count two; thereafter the cause was submitted to the jury on the negligence count and a verdict in defendant's favor was returned. Plaintiffs claim that the motion for nonsuit was improperly granted; they also contend that the trial court erred in refusing to give two instructions on the negligence count.

Preliminarily, it appears that the motion for nonsuit was made at the conclusion of plaintiffs' case in chief; it was then taken under submission to permit further study by the court of the authorities cited pro and con; subsequently the motion was granted after all the evidence for each side was in. While this procedure was rather unusual, it is the law that a nonsuit can be granted after the evidence for both sides is closed (Estate of Morey; 147 Cal. 495, 506, 82 P. 57); also, apparently by agreement of counsel, the trial continued to conclusion before the court's ruling (See Croslin v. Scott, 154 Cal.App.2d 767, 316 P.2d 755.) Further, by way of prefatory statement, defendant concedes that where a nonsuit is involved, the evidence must be viewed most favorably to the plaintiffs. Under this general rule, which is applicable to actions based on wilful misconduct (Hallman v. Richards, 123 Cal.App.2d 274, 278, 266 P.2d 812), we 'must resolve every conflict in the testimony in favor of plaintiffs, consider every inference which can reasonably be drawn and every presumption which can fairly be deemed to arise in support of plaintiffs, and accept as true all evidence adduced, direct and indirect, which tends to sustain plaintiffs' case.' (Coates v. Chinn, 51 Cal.2d 304, 306-307, 332 P.2d 289, 291.) In this connection, testimony adduced pursuant to Section 2055, Code of Civil Procedure, is to be treated as evidence in the case insofar as favorable to plaintiffs. (Crowe v. McBride, 25 Cal.2d 318, 319, 153 P.2d 727.)

Viewed in the light just mentioned, the record reveals the following salient facts: Defendant Harrison purchased and commenced operation of his auto wrecking business about a week of month before the accident; he retained in employment one Heeter who had been employed by the previous owner; Heeter testified that he had worked around auto wrecking yards since 1925. Decedent came to the defendant's premises about noon; he accosted Harrison and stated that he wanted a universal joint for a 1953 Plymouth. Defendant told him there were none in stock; he added that if the decedent would wait, 'my man (Heeter) will be back from lunch and he will take it off' a 1950 Plymouth there and then in the yard. Decedent said that he was in a hurry and would take it off himself; defendant replied: 'All right, take it off yourself. It will run about three bucks.' After showing decedent where the Plymouth was, defendant gave him a wrench and a jack. According to defendant, he also gave decedent two stands or blocks to put under the car, but the evidence is in conflict in this regard. More than an hour later, defendant walked over to the Plymouth and saw the decedent lying under the car 'with his feet sticking out.' Heeter, who had returned from lunch, was summoned; he got a bumper jack from his car, and the Plymouth was jacked up at the rear bumper; at that time decedent was dead.

The claim of wilful and wanton misconduct is principally predicated on the testimony of Heeter, who was called under Section 2055, Code of Civil Procedure, as defendant's agent; as pointed out in Crowe v. McBride, supra, 25 Cal.2d 318, 319, 153 P.2d 727 such claim may properly be made. Heeter stated that there was a hydraulic jack on the premises in good working condition. The business had only two bumper jacks, one of which 'wouldn't hold.' According to Heeter, upon returning from lunch, he passed the Plymouth car on which decedent was working; he stopped and asked him what he was doing. At that time he noticed that 'there was only one jack under the left front side of the car.' He stated further that the car was jacked up 'practically about three inches from being to the top of the jack.'

'Q. (by plaintiffs' counsel) 'And was that in a precarious position? A. (by Heeter): It was.

'Q. Pretty dangerous, wasn't it. A. It was dangerous position to be in.

'Q. And you didn't get under that car, did you? A. No, I did not.

'Q. And in all your years of experience, you wouldn't have gotten under that car? A. No.'

Heeter was then asked whether there were some stands at the scene, and he replied that there were two--one in the front of the Plymouth and one in the back.

'Q. (By plaintiff's counsel) 'Now, I want you to just answer my questions. Did you go over and put either of those stands under the car? A. No, I did not.

'Q. Ordinarily, you would have done it for yourself, isn't that right? A. I would have.

'Q. The rear bumper was touching the ground at that point, wasn't it? A. On the right side, the right rear bumper.

'Q. How about the left rear bumper? A. The left, it was up off the ground.

'Q. On blocks? A. No, there was no blocks under the car at all. It was just sitting on the bumper jack, on the right rear bumper, on the corner, just sitting there in a teetering position.' Heeter then left and went to another part of the yard. Later on, he passed the Plymouth where decedent was still working, but he said nothing to him.

As related earlier, the motion for nonsuit as to the second count was taken under submission; thereafter, Heeter was called as a defense witness by defendant's counsel. Referring to his conversation with the deceased, there was this testimony: 'I walked up and I looked underneath the car. I asked him how he was doing, and he said, 'O.K.' I said: 'Well, I wouldn't crawl under a car like that.' And he said, 'Well, I'm O.K. I'm all done.'' Upon cross-examination, the following occurred:

'Q. Now the car was teetering when you were down there? A. It was.

'Q. Weren't you kind of afraid when you were kneeling right alongside of it with it teetering like that? A. It went the other way. It wouldn't have went in my direction.

'Q. How do you know that? A. I've jacked up cars long enough to know which way they'll go.

'Q. So you weren't worried about yourself? A. Well, it wasn't going to fall on me. I wasn't under it.

'Q. Didn't you worry about him at all? A. Yes, but did you ever try to tell somebody how to do anything? * * *

'Q. And didn't you realize that there was a great liklihood (sic) that this man might have been hurt? A. Why, sure there was.

'Q. Not only a great likelihood, a great degree of probability that he would have been hurt, right? (Objection overruled) A. I don't know * * *

'Q. Wouldn't you say in your opinion that this was about the worst jacked up car that you have ever seen? A. For a man to crawl under, yes.

'Q. And, so based on that wouldn't you say that when you were there looking at this young man under that car that you knew there was a good possibility that he was going to get hurt? A. No, not necessarily a possibility. There was a chance of it falling, though * * *'

California recognizes a type of tortious misconduct which is characterized in the Restatement as 'reckless disregard of the safety of another' (Rest. Torts, Sec. 500). 'A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result.' (Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869, 118 P.2d 465, 468). Cited in Mercer-Fraser Co. v. Industrial Accident Comm., 40 Cal.2d 102, 117, 251 P.2d 955, is this further clarification of the term in Porter v. Hofman, 12 Cal.2d 445, 447-449, 85 P.2d 447, 448: "Wilful misconduct * * * necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom." Whether it be an action arising under the California 'guest law' (Veh. Code, Sec. 17158) or otherwise, it has been uniformly held that wilful misconduct depends upon the facts of each particular case. (Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218; Mercer-fraser Co. Industrial Acc. Com., 40 Cal.2d 102, 251 P.2d 955; Studer v. Plough, 179 Cal.App.2d 436, 440-441, 3 Cal.Rptr. 785.) Accordingly, it has also been said that the intention to do something, or fail to do something, with the knowledge that injury to another will be a probable result of such action or omission is a question of fact (Ingram v. Bob Jaffee Co., 139 Cal.App.2d 193, 197, 293 P.2d 132); too, 'The intentional knowing or wanton character of the behavior may be implied from the surrounding circumstances. (citations).' (Fuller v. Chambers, 142 Cal.App.2d 377, 380, 298 P.2d 125, 127.)

Appellants argue that...