Loughan v. Harger-Haldeman, HARGER-HALDEMAN

• Court: California Court of Appeals
• Citation: 184 Cal.App.2d 495,7 Cal.Rptr. 581
• Docket Number: HARGER-HALDEMAN
• Parties: Ruth LOUGHAN, a widow, Elizabeth Loughan, a minor, by and through her Guardlan ad litem, Ruth Loughan, and Susan Loughan, a minor, by and through her Guardian ad litem, Ruth Loughan, Plaintiffs and Appellants, v., a corporation, et al., Defendants. Harger-Haldeman and Ben Wasserman, Respondents. Civ. 24452.
• Decision Date: 08 September 1960

Page 581

7 Cal.Rptr. 581

184 Cal.App.2d 495

Ruth LOUGHAN, a widow, Elizabeth Loughan, a minor, by and through her Guardlan ad litem, Ruth Loughan, and Susan Loughan, a minor, by and through her Guardian ad litem, Ruth Loughan, Plaintiffs and Appellants, v. HARGER-HALDEMAN, a corporation, et al., Defendants.

Harger-Haldeman and Ben Wasserman, Respondents.

Civ. 24452.

District Court of Appeal, Second District, Division 2, California.

Sept. 8, 1960.

Henry E. Kappler, Los Angeles, for appellants.

Early, Maslach, Foran & Williams, Peter R. Krichman, Los Angeles, for respondent Harger-Haldeman.

FOX, Presiding Justice.

This was an action for damages for personal injuries brought by the plaintiff, Ruth Loughan and by her two minor children. Mrs. Loughan appeared as guardian ad litem on behalf of her children. (Plaintiffs will hereafter be referred to in the singular) The action arose out of an alleged trespass upon property owned by Mrs. Loughan occurring during the course of an attempted repossession of Mrs. Loughan's Plymouth automobile. Defendant Harger-Haldeman is the assignee of a dissolved corporation, Greene-Haldeman, the original seller of the automobile. The defendant Accounts Collection Service, is a company engaged in the business of the collection of overdue accounts and the repossession of chattels. Defendant Ben Wasserman is the owner of Accounts Collection Service. The personal injuries for which recovery was sought were alleged to have resulted from fright caused by the trespassory act of an agent of Accounts Collection Service in an abortive attempt to repossess the Plymouth automobile. ¹ After a trial by jury, verdict and judgment went for the defendants and the plaintiff has appealed.

Plaintiff's first amended complaint alleges two causes of action. The first cause of action alleges physical injuries resulting from assault and trespass and the second alleges a conspiracy among the defendants to unlawfully and maliciously trespass upon the property of the plaintiff. As to the second cause of action, the trial court granted defendants' motion for non-suit at the close of plaintiff's evidence. Plaintiff appeals from the judgment, assigning as error several of the instructions given by the trial court and, in addition, the trial court's granting of the motion for non-suit.

The evidence discloses the following facts: In September, 1953, the plaintiff's husband, T. O. Loughan, purchased a new Plymouth automobile from Greene-Haldeman on a conditional sales contract. In September of 1955, a revision agreement was executed whereby the monthly payments were reduced. The provisions of this conditional sales agreement provide for repossession of the automobile from the buyer upon default of any of the conditions stated. ² In March, 1956, the plaintiff's husband became ill and in August, 1956, he died. The last payment made by plaintiff prior to the events herein complained of was made on August 2, 1956. The next payment was due on August 30, three days after the death of plaintiff's husband. She failed to make this payment, but during September she had several discussions with Harger-Haldeman ³ personnel. Plaintiff testified that she was assured by these various employees that she should not be concerned and, further, that they felt that perhaps Mr. Loughan had insurance covering the balance of the payments in the event of his death and that she should wait until they had checked on this. At various times in the month of October she had further discussions with Harger-Haldeman personnel and the previous assurances were reiterated. During September she received a past due notice when has been sent to her husband's old office address but she received no other notice of any kind from the defendants. She made no further payments until November 8th.

Plaintiff and her two minor children lived in the family home situated high in the hills above San Fernando Valley in a remote and isolated section. During the early morning hours of November 8, 1956, plaintiff was awakened by a phone call from a man who identified himself as a repossessor of automobiles and who informed her that he was coming directly to her house to repossess her Plymouth car. The plaintiff immediately called the police, who responded to the call. She wrote out a check covering the delinquent payments, gave it to the policeman, who then posted it for her. Later in the morning, plaintiff called the offices of defendant Harger-Haldeman and talked to several people complaining about the early morning telephone call and demanding to know why the company was attempting to repossess her automobile when they had assured her that she need not be concerned about the payments. One of defendant's employees indicated that the repossessor had been sent by Harger-Haldeman. The evidence shows that some time prior to November 8, Harger-Haldeman had ordered the repossession of plaintiff's automobile. Also on November 8, the plaintiff had a telephone conversation with Mr. Doughty, an officer of defendant Harger-Haldeman, who, after being assured that plaintiff had deposited a check in the mail covering the delinquent payments, stated to her that he would cancel the repossession order. There is some evidence that the repossession order was in fact cancelled but Wasserman did not corroborate this testimony; in fact Wasserman's employee Bernstein, who handled the transaction, testified that he did not receive a cancellation from Harger-Haldeman. ⁴

The alleged trespass occurred at approximately 3:50 a. m. on November 9, 1956. The plaintiff was awakened by the barking of her dog. She testified that she arose from her bed and went to the window. She then saw two men on the edge of the grass, away from the driveway, in her back yard. The men were masked, or had stocking caps worn in such a manner that their faces were covered. One of the men was Bernstein, an employee of Accounts Collection Service, and the other was unidentified. She became extremely apprehensive and frightened, thinking that the men were there to burglarize her home or do her physical harm. She observed the men moving around the yard and at one point they were directly below her bedroom windows. It is evident from a surveyor's drawing of the house and lot that the plaintiff's bedroom area is far removed from the driveway where the plaintiff's two cars were located. Plaintiff's two children were also aware of the presence of the men and were badly frightened. Mrs. Loughan then went to the telephone and called the police. While she was engaged in this conversation she observed the men moving aboug the grounds and at one time heard a knock or noise. The police arrived shortly after 4:00 a. m., and immediately observed Bernstein (the employee of Accounts Collection Service) and another man who is to this day unidentified. Bernstein and his associate were released by the police after the police had ascertained that they were acting pursuant to a repossession order. See footnote 4.

Plaintiff, feeling certain that the repossessors had been sent by Harger-Haldeman, immediately sent a telegram to that company requesting that Doughty call her as soon as possible at the opening of business in the morning. Some time during the morning plaintiff had a telephone conversation with Doughty and informed him that the men had been at her home and that she had called the police. Doughty stated to her that he was not sure whether the men had come in relation to the Plymouth automobile and that he would check. Doughty admitted that he had apologized to the plaintiff for the events of the preceding night. He also sent her a letter in which he stated: 'I wish to sincerely apologize for the events of the past two nights. It will not happen again.' On the 9th of November, plaintiff immediately deposited a check covering the remaining balance on the car.

We first consider plaintiff's argument that the trial court erred in instructing the jury on the sole issue raised by the defense; i. e., that Accounts Collection Service was an independent contractor. In this connection the court instructed the jury that 'one for whom an agent works is called the principal, and the principal is liable to third persons for the acts of an agent in the transaction of the business of the agency, if the agent himself is liable. But one who employs an independent contractor is not liable to other for the acts of the contractor. * * * If you find that at the time of the incident involved in this case the Accounts Collection Service, owned by Ben Wasserman, and employing defendant Sheldon Gerald Bernstein, was an independent contractor, whatever your verdict may be as to the Accounts Collection Service, your verdict must be in favor of the defendants Harger-Haldeman, a corporation on that issue.' This instruction informed the jury without qualification that in no event would Harger-Haldeman be liable for the acts of Accounts Collection Service if the jury should find that the latter was acting as an independent contractor at the time of the attempted repossession. This is not an accurate statement of the law. An independent contractor cannot with immunity be hired to perform an act which necessarily involves a trespass. In the case of Yee Chuck v. Board of Trustees, 179 Cal.App.2d 405, 3 Cal.Rptr. 825, 829, a trespass was committed by one of the defendants through the instrumentality of an independent contractor. The court said: 'Stanford, on the other hand, cannot insulate itself from liability for the condition created on the land by its Contractor by claiming that the Contractor was an 'independent Contractor'. Stanford would not ordinarily be liable to third persons for negligence of the Contractor in doing the work, that is, for 'active conduct,' but that it not what is here involved * * *. Stanford is not shielded by the fact that the Contractor was an independent contractor.' See also Brown v. George Pepperdine Foundation, 23...