Redfoot v. J. T. Jenkins Co.

• Decision Date: 21 December 1955
• Citation: 291 P.2d 134,138 Cal.App.2d 108
• Court: California Court of Appeals Court of Appeals
• Parties: Lester REDFOOT, Plaintiff and Appellant, v. J. T. JENKINS COMPANY et al., Defendants and Respondents. Civ. 21088.

Page 134

291 P.2d 134

138 Cal.App.2d 108

Lester REDFOOT, Plaintiff and Appellant, v. J. T. JENKINS COMPANY et al., Defendants and Respondents.

Civ. 21088.

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

Dec. 21, 1955.

George L. Hecker; Orlan S. Friedman, Beverly Hills, for appellant.

William W. Waters, Los Angeles, for respondent J. T. Jenkins Co. Ashburn, Justice pro tem.

Plaintiff appeals from a judgment in favor of defendant J. T. Jenkins Company, rendered after an adverse verdict in an action to recover for fire damages to plaintiff's diesel tractor. Defendant's business included the repairing of such tractors or trucks. On August 21, 1950, plaintiff's driver took the tractor to defendant's shop for repair because the radiator was leaking. It was to be removed and an exchange radiator core to be installed but it was found that no exchange core was available and the tractor was kept in defendant's shop for the making of necessary repairs. It arrived at about noon on the 21st and the radiator shell, grill and core were removed and set aside. This work was finished about 4:30 p. m. Most of the men left the shop at 5:00, but Paul Sanchez, the shop foreman, left at about 6:30 p. m. At or near 5:55 on the next morning (the 22nd) the truck was discovered to be burning. The fire was confined to the cab and other portions of the vehicle under the floor boards and back of the cab. No other vehicle or object was afire.

Action was brought against defendant as bailee upon the ground of negligence, it being alleged that defendant 'so carelessly, negligently and improperly managed, controlled and cared for said tractor that same was allowed to and did catch fire and burn up.' This quotation is taken from the first count of the complaint. The other causes of action, which also sounded in negligence, were dismissed. It was stipulated that the recoverable damage, if any, amounted to $5,389.64.

Plaintiff's chief complaint on appeal is that the court instructed the jury that the burden rested upon plaintiff to prove defendant was negligent, and refused to give plaintiff's requests to the effect that the burden of proof rested upon defendant. Specifically, complaint is made of the refusal of these two instructions: 'If, from the evidence, you find that the defendants failed to prove the cause of the fire, or, having proved such cause, failed to prove that the fire was not caused by some negligent act or acts on their part or on the part of their employees, then you shall find against defendants and in favor of plaintiff Redfoot.' 'If, from the evidence, you find that the cause of the fire is unknown, then you shall find in favor of plaintiff Redfoot and against defendants.'

It may be assumed that it is the law of California that proof of delivery of a vehicle to a bailee and his return of same in a damaged condition imposes upon the bailee the burden of proving that the damage occurred without any fault on his part--the burden of proof, not merely the burden of going forward with the evidence; also that that is true regardless of whether the complaint alleges negligence or conversion or other breach of contract. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 841, 205 P.2d 1037, 1042, holds: 'It is clear, therefore, that in cases governed by the provisions of the uniform act, the burden of proving that the goods were not lost because of negligence is on the defendant, whether plaintiff frames his complaint on a negligence or a breach of contract theory.' That case arose under the Uniform Warehouse Receipts Act, Civ.Code, § 1858.01 et seq., but that the same rule probably applies to other types of bailment appears from Downey v. Martin Aircraft Service, 96 Cal.App.2d 94, 98, 214 P.2d 581; Gardner v. Jonathan Club, 35 Cal.2d 343, 348, 217 P.2d 961. It is not necessary to decide that question because plaintiff is not in position to capitalize the court's error, if one there be, into a reversal. He must be held to the theory upon which he tried the case. Diel v. Baxter, 58 Cal.App.2d 383, 387, 136 P.2d 789; 4 Cal.Jur.2d sec. 530, p. 380; 3 Cal.Jur.2d, sec. 142, p. 607; 3 Witkin Calif.Proc., sec. 96, p. 2264.

As above shown, the complaint sounded in negligence. At page one of the reporter's transcript plaintiff's attorney brought up the subject of a right to rely on res ipsa loquitur. Opposing counsel asserted that 'plaintiff always has the burden,' resulting in this colloquy: 'Mr. Hecker: You have got the burden of going forward. Mr. Waters: That is not the burden of proof. Mr. Hecker: You have a burden of going forward to rebut any evidence by reason of res ipsa loquitur.' The transcript of the testimony covers 436 pages and not once did plaintiff's attorney assert that the burden of proof, as distinguished from the burden of going forward, rested upon defendant. During the argument of motion for nonsuit he said: 'On behalf of the plaintiff, your Honor, the plaintiff has assumed his burden of presenting a prima facie case that the negligence of the defendants caused this loss. * * * That rules out the possibility that this fire could have occurred from some other cause other than the negligence of the defendants, therefore making the inference applicable that res ipsa loquitur applies and therefore now the burden is on the defendant of going forward to show that the cause of the fire was not the negligence of the defendant or of the defendant's employees. * * * It is submitted therefore that all three elements of the doctrine have been met in the situation where we are going on the negligence aspect, rather than the conversion or breach of contract arising out of a bailment, and in that situation where the plaintiff has elected that theory and proceeded and has evidence of negligence in the case, he is entitled under the theory of the Leet case, which finally decided that even though you have specific acts of negligence you are still entitled to the doctrine of res ipsa loquitur, he is entitled to the application of that doctrine.' Later in the case counsel for plaintiff reopened the subject: 'The only thing I think this does indicate, although we have not sued for conversion, if a prima facie case of negligence is made out--aside from the conversion aspect, if a prima facie case of negligence is made out, the defendant has a burden of going forward to show the loss or destruction was not caused by his negligence. * * * It seems to me the rule is, your Honor, that the plaintiff still has the burden of proof, but that once he has established a prima facie case of negligence, the defendant has the burden of going forward with the evidence which is what the res ipsa loquitur doctrine is, and which the BAJI instruction states.'

The requested instructions first injected the proposition that the ultimate burden was on the defendant. When they were presented does not appear, but that is immaterial for plaintiff asked for conflicting instructions on the subject and hence cannot complain of the giving of those of defendant which agreed with one of his own requests. The proposed instructions placing the burden of the defendant have been quoted. In addition thereto plaintiff requested a series of res ipsa loquitur instructions, one of which contained this: 'Plaintiff's burden of proving negligence by a preponderance of the evidence is not changed by the rule just mentioned. It follows, therefore, that in order to hold the defendant liable, the inference of negligence must have greater weight, more convincing force in the mind of the jury, that the opposing explanation offered by the defendant. If such a preponderance in plaintiff's favor exists, then it must be found that some negligent conduct on the part of defendant was a proximate cause of the injury; but if it does not exist, if the evidence preponderates in defendant's favor, or if in the jury's mind there is an even balance as between the weight of the inference and the weight of the contrary explanation, neither having the more convincing force, then the verdict must be for the defendant.' Jansen v. Southern Pacific Co., 112 Cal.App.2d 833, 845, 247 P.2d 581, 588: 'It is well established that 'A party cannot complain of an instruction given at his own request, or of an error in an instruction given at the instance of his adversary, when he requests a substantially similar one.' [Citating cases.]' Accord: George v. City of Los Angeles, 51 Cal.App.2d 311, 319, 124 P.2d 872; Miller v. Dollar Steamship Lines, Inc., 19 Cal.App.2d 206, 211, 64 P.2d 1163; Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 697, 262 P.2d 95; Bates v. Newman, 121 Cal.App.2d 800, 808, 264 P.2d 197; 4 Cal.Jur.2d sec. 557, p. 423.

Appellant's counsel was correct in his insistence that the facts gave rise to a presumption of negligence on defendant's part, a presumption which is the equivalent of res ipsa loquitur. IX Wigmore on Evidence, (3rd Ed.) sec. 2508, p. 375: 'Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee's liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury. But the application of this presumption cannot be said to have received definite phrasing for the different kinds of bailees.' 4 Shearman and Redfield on Negligence (rev. ed.), sec. 651, p. 1570, and 7A Blashfield Cyclopedia of Automobile Law and Practice (permanent ed.), sec. 5043, p. 578, are to the same effect. Romney v. Covey Garage, Utah, 111 P.2d 545, applied this rule to an action against a garage owner for injuries to plaintiff's automobile which was stolen from the garage, damaged by the thieves and redelivered in a damaged condition. At page 547 of 111 P.2d: 'This holding puts negligence in ex delicto bailment cases and negligence in other tort cases on a parity. Moreover, it brings...