De Mirjian v. Ideal Heating Corp.

• Decision Date: 23 December 1954
• Parties: Albert DE MIRJIAN, George DeMirjian and Zabolle DeMirjian individually, and as co-partners doing business under the fictitious name and style of California Art Company, Plaintiffs and Appellants, v. IDEAL HEATING CORPORATION, a corporation, Anthony V. Lupella, Mission Appliance Corporation (sued herein as Doe I), Doe II, Doe III and Doe IV, Defendants Ideal Heating Corporation, a corporation, Respondent. Civ. 20282.
• Court: California Court of Appeals Court of Appeals

Page 114

278 P.2d 114

129 Cal.App.2d 758

Albert DE MIRJIAN, George DeMirjian and Zabolle DeMirjian individually, and as co-partners doing business under the fictitious name and style of California Art Company, Plaintiffs and Appellants, v. IDEAL HEATING CORPORATION, a corporation, Anthony V. Lupella, Mission Appliance Corporation (sued herein as Doe I), Doe II, Doe III and Doe IV, Defendants Ideal Heating Corporation, a corporation, Respondent.

Civ. 20282.

District Court of Appeal, Second District, Division 3, California.

Dec. 23, 1954.

Rehearing Denied Jan. 20, 1955.

Hearing Denied Feb. 16, 1955.

Lane & McGinnis, Felix H. McGinnis, McBain & Morgan, and Irving E. Tarson, Los Angeles, for appellants.

John W. Preston, Bordon & Bordon, John W. Preston, Jr., and Parker, Stanbury & Reese, Los Angeles, for respondent.

VALLEE, Justice.

Plaintiffs appeal from a judgment in favor of defendant Ideal Heating Corporation, referred to as defendant, entered on a directed verdict. The action is for property damage resulting from a fire alleged to have been caused by the negligence of Anthony Lupella, an employee of defendant. The facts are not in dispute.

On April 12, 1946, plaintiffs owned a one-story double building in Los Angeles. One half of the building was leased to and occupied by defendant which was engaged in the manufacture of floor and wall furnaces and heaters. The other half was occupied by plaintiffs who were engaged in the manufacture of lamps. Defendant had about 25 employees. At 2:30 p. m. on that date the fire was started, resulting in total damages to plaintiffs in the stipulated sum of $122,081.

At the time of the fire and for several months prior thereto, Lupella had been an employee of defendant. Defendant had given orders prohibiting smoking on the floor of the shop, but had permitted its employees to smoke in the washroom. It was Lupella's practice to go to the washroom four or five times a day to smoke. The day before the fire while working in defendant's paint booth he had taken the fluid out of his cigarette lighter and had painted the lighter. Defendant, to Lupella's knowledge, maintained spatter thinner, a highly volatile, inflammable, and dangerous substance, in a 50 gallon drum next to the paint booth and adjacent to an aisle used for access to the washroom--in a portion of the shop where smoking was prohibited. The drum was at an angle of about 40 or 45 degrees. There was a spigot in the drum for releasing the thinner. It was not the spring-closing type of outlet to which you have to apply pressure on the handle to allow the outlet to remain open and when the pressure is released the outlet is automatically closed. There was a 'drip can' about 12 inches in diameter under the spigot of the thinner drum. There were no signs adjacent to the drum. There was a fire extinguisher near it. There were at least two more fire extinguishers on the floor; the record does not clearly disclose their location. The thinner was used by the painters more or less continuously. Some paint was kept behind the paint booth.

About 2:30 p. m. on the day of the fire, Lupella left his work station and proceeded to the washroom to use its facilities and to smoke. Having no matches and wishing to smoke while he was in the washroom, he stopped at the thinner drum to fill his lighter with fluid. There were about 20 or 25 gallons of thinner in the drum. Lupella testified: '[W]e were not allowed to smoke on the floor, so every time I wanted to smoke I went up to the washroom. The day before the fire I had my cigarette lighter painted, and I took the juice out of it. Well, I wanted to go for a smoke, and I wanted to put some juice in the lighter so I can smoke a cigarette, because I didn't have any matches, so what I did was I went to the thinner drum, and I opened up the spigot a little, just dripping; so I turned the lighter upside down and took the cap off; and then I accidentally pressed the button, and it sparked, and it ignited the thinner, so I got hysterical and I dropped the lighter in the pan underneath the spigot and it started to blaze, and I yelled, 'Fire.'

'So Mr. Pardee, the shop foreman, he came over with a fire extinguisher, and he asked me to shut the spigot off. Well, when I tried to put out the fire, my clothes caught on fire and I got burned, slightly burned on my hand and my legs, and I burned my clothes; and he asked me to hit the spigot, and I couldn't move it with my hand because it was on fire, so I tried to hit it with my foot. When I hit it with my foot, I knocked the spigot off, and then it started flowing more, and it blazed the fire up to the crates, and the crates caught fire, and I ran for a fire extinguisher, and there was no controlling the fire, so they called the fire engines, and Mr. Pardee told me to leave the shop.'

After Lupella left the building, an explosion occurred. He had used spatter thinner from the drum before as fluid for his cigarette lighter. He 'knew thinner would be best for the lighter.' He knew the thinner was a good fuel for his cigarette lighter because he had used it when he was in the Air Force. He remained in the employ of defendant about two months after the fire, when he voluntarily quit his employment.

Defendant's vice-president testified the thinner was maintained in a drum which was not a safety container and that it had been so maintained for about three years prior to the fire; that it was the duty of all employees to safeguard and preserve the premises; that Lupella's express duties were working on the punch press, a notching machine, in the paint booth, and to do such things as he was instructed to do from time to time.

After plaintiffs rested their case, defendant, without introducing any evidence, moved for a directed verdict on two grounds: 1. Although evidence submitted by plaintiffs was undisputed and without conflict, the facts did not entitle plaintiffs to recover damages from defendant. 2. Upon an appeal from a former judgment in the same 'entitled cause, and upon the same or substantially the same facts adduced at the present trial of said cause,' the reviewing court 'held that said facts were insufficient to support any judgment in favor of the plaintiffs'; that the decision has become final and constitutes the law of the case, 'and the plaintiffs are estopped from questioning its correctness and from further prosecuting this action against the defendant.' The motion was granted on both grounds. The court directed the jury to return a verdict for defendant. Plaintiffs appeal from the judgment entered on the verdict.

Plaintiffs contend the trial court erred in granting defendant's motion for a directed verdict on either ground. The two grounds will be considered in reverse order from that in which they were made.

The second ground is based on the theory that the decision in DeMirjian v. Ideal Heating Corp., 112 Cal.App.2d 251, 246 P.2d 51, constitutes the law of the case and estops plaintiffs from further prosecuting the action. The contention raised on appeal from the former judgment, which was for plaintiffs, was, 112 Cal.App.2d at page 253, 246 P.2d at page 52, 'that the findings of the trial court set forth above do not support a judgment against it [defendant Ideal].' The court held, 112 Cal.App.2d at pages 253-254, 246 P.2d at page 52: 'This proposition is sound and must be sustained. * * * [T]here is a total absence of any finding that defendant Lupella was acting within the scope of his employment or authority at the time he committed the negligent act which was the proximate cause of the damage suffered by plaintiffs. * * * [U]nder the findings of fact of the court in the instant case defendant corporation was not liable for the negligent act of its codefendant, and the trial court erred in entering judgment in favor of plaintiff. * * * Judgment reversed.'

The only question presented and necessary for determination on the former appeal and the only question determined was that the findings of fact of the trial court were deficient in one particular and that therefore they did not support the judgment. It was not held that the evidence did not support the findings. All that was decided was that the findings did not support the judgment. A failure to find on a given issue of fact in a prior trial which resulted in a reversal does not establish the law of the case where at the second trial there is a satisfactory finding on that point. Hibernia Savings and Loan Soc. v. Farnham, 153 Cal. 578, 583, 96 P. 9.

The doctrine of the law of the case does not extend to remarks or opinions on questions that are not necessarily before the court or involved in the determination of the cause. Millsap v. Balfour, 158 Cal. 711, 714, 112 P. 450. The statements relied on by defendant in the opinion on the prior appeal concerning the responsibility of defendant to third persons for the negligence of its agent, are mere passing remarks, not necessary to the decision, at best obiter dicta. They are not binding as the law of the case and do not bar us from now deciding the question on its merits. Hammond v. McDonald, 49 Cal.App.2d 671, 677, 122 P.2d 332. The effect of the unqualified reversal of the case on appeal was to remand it for a new trial on all the issues presented by the pleadings. Oldum v. Duffy, 35 Cal.2d 562, 564, 219 P.2d 785; Riedy v. Bidwell, 93 Cal.App. 202, 205, 269 P. 682; Heinfelt v. Arth, 4 Cal.App.2d 381, 383, 41 P.2d 191; 4 Cal.Jur.2d 551, § 666. Inasmuch as the court on the former appeal did not consider or attempt to determine whether the evidence was sufficient to sustain proper findings, the doctrine of the law of the case does not apply. It was error for the court to direct a verdict for defendant on the second ground.

The next question is whether it can be said, as a matter of law, that Lupella was not acting within the course of his employment at the time he committed the negligent act which was the...