Ulwelling v. Crown Coach Corp.

• Decision Date: 26 July 1962
• Citation: Ulwelling v. Crown Coach Corp., 206 Cal.App.2d 96, 23 Cal.Rptr. 631 (Cal. App. 1962)
• Court: California Court of Appeals
• Parties: John P. ULWELLING and Mary E. Ulwelling, Heirs at Law of Edward A. Ulwelling, Deceased, Plaintiffs and Appellants, v. CROWN COACH CORP., City of Los Angeles, Truck Brake Service Co., Truck Insurance Exchange, Truck Underwriters Association, International Harvester Co., Defendants and Respondents. Angelina J. SMITH et al., Plaintiffs and Appeallants, v. INTERNATIONAL HARVESTER COMPANY, Crown Coach Corporation, Charles H. Foster, Norman F. Foster, Bernice Foster, Truck Brake Service Co., Inc., Truck Insurance Exchange and Truck Underwriters Association, Defendants and Respondents. Civ. 25139, 25609.

Page 631

23 Cal.Rptr. 631

206 Cal.App.2d 96

John P. ULWELLING and Mary E. Ulwelling, Heirs at Law of Edward A. Ulwelling, Deceased, Plaintiffs and Appellants, v. CROWN COACH CORP., City of Los Angeles, Truck Brake Service Co., Truck Insurance Exchange, Truck Underwriters Association, International Harvester Co., Defendants and Respondents.

Angelina J. SMITH et al., Plaintiffs and Appeallants, v. INTERNATIONAL HARVESTER COMPANY, Crown Coach Corporation, Charles H. Foster, Norman F. Foster, Bernice Foster, Truck Brake Service Co., Inc., Truck Insurance Exchange and Truck Underwriters Association, Defendants and Respondents.

Civ. 25139, 25609.

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

July 26, 1962.

Rehearing Denied Aug. 23, 1962.

Hearing Denied Sept. 26, 1962.

Harney, Drummond & Dorsey and John K. Ford, Los Angeles, for appellants Ulwelling.

Hirson & Horn, Los Angeles, for appellants Smith.

Betts, Ely & Loomis and Richard F. Runkle, Los Angeles, for respondent Crown Coach Corp.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., and Davis H. Von Wittenburgh, Deputy City Atty., for respondent City of Los Angeles.

Gilbert, Thompson & Kelly, and Jean Wunderlich, Los Angeles, for respondent Truck Brake Service Co., Inc.

Spray, Gould & Bowers, Joseph L. Spray, Los Angeles, for respondents Truck Ins. Exchange and Truck Underwriters Ass'n.

Moss, Lyon & Dunn, Fulton W. Haight and Henry F. Walker, Los Angeles, for respondent International Harvester Co.

Early, Maslach, Foran & Williams, Victor E. Williams, Donald J. Pierr, Los Angeles, for respondents Charles Foster and Norman Foster.

LILLIE, Justice.

On September 30, 1957, a number of school children were riding in a bus owned by Foster Transportation, Inc., and operated by Melden Smith; at approximately 3 p. m., as it approached the crest of a hill, the drive shaft separated and damaged the air line operating the air brake system; unable to stop or slow down and gaining speed and momentum, the bus crashed into a pedestrian foot bridge and plunged 35 feet into a ravine. The driver and several minors were killed; the others were injured; they, themselves, or through their heirs at law, were plaintiffs in sixteen separate actions consolidated for trial. Defendants included Crown Coach Corp., International Harvester Co., Truck Brake Service Co., Inc., Truck Insurance Exchange, Truck Underwriters Association, City of Los Angeles and Foster Transportation, Inc. Also consolidated for trial and on appeal is the wrongful death action of Smith v. Foster brought by the heirs of the driver; in addition to the above defendants (except the City and Foster Transportation, Inc.) they sued Norman, Charles and Bernice Foster. Judgments of nonsuit were entered in favor of Crown, International and the individual Fosters; judgments on jury verdicts were entered against Foster Transportation Inc., and in favor of the remaining defendants. All plaintiffs have appealed; all defendants except Foster Transportation, Inc. and Bernice Foster are respondents.

JUDGMENTS OF NONSUIT

Because of the number of parties and the variety of legal relationships involved, time and space do not permit a detailed summary of the disorganized mass of testimony (produced from 30 days of trial and reflected in 3074 pages of reporter's transcript) relating to the complex mechanical involvements resulting in the bus failure. However, our complete and exhaustive examination of the evidence includes due consideration of whatever conflicts arise from the testimony and whether they are substantial enough to justify a reversal of the judgments of nonsuit.

'The granting of a motion for nonsuit is warranted '* * * when, and only, when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.'' (Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574, 575.) Thus, before a judgment of nonsuit can be distrubed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; proof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain his burden. (Eramdjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 315 P.2d 19; Strnod v. Abadie, 181 Cal.App.2d 737, 5 Cal.Rptr. 627; Farmer v. Fairbanks, 71 Cal.App.2d 70, 162 P.2d 26.) '* * * as pointed out in Reese v. Smith, 9 Cal.2d 324, at page 328, 70 P.2d 933, at page 935: 'If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. [citation.] A judgment cannot be based on guess or conjectures. [citation]' * * * Substantial evidence is required to establish each essential affirmative allegation--a scintilla of evidence is not sufficient for that purpose. In re Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54.' (Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 741, 314 P.2d 33, 36.) Thus, the burden was upon plaintiffs to establish that defendants had some duty to them and breached it, and that such breach was the proximate cause of the accident; if there is no evidence of substance tending to prove the controverted facts necessary to establish the plaintiffs' case, the motions for nonsuit were in order. And "* * * (I)t is not necessary that there should be an absence of conflict in the evidence. To deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one.' (citations).' (Rufo v. N.B.C. Nat. Broadcasting Co., 166 Cal.App.2d 714, 719, 334 P.2d 16, 20; Farmer v. Fairbanks, 71 Cal.App.2d 70, 73, 162 P.2d 26.)

NONSUITS AS TO CROWN COACH CORP.

Appellants contend that Crown sold the bus to Foster September 28, 1956, and at that time it was in a dangerous condition, it made no inspection of the bus, the air line was dangerously located thereon, there was no emergency brake, 'it is probable' that the safety hanger guarding the drive shaft was broken, and the front hydraulic brakes had been disconnected; that Crown guaranteed to Foster the safety hanger would always control and contain a separated drive shaft; and that by extending the chassis Crown created stress and strain ultimately causing the drive shaft to separate. (A.O.B., pp. 11-12).

Bearing in mind that plaintiffs' claim is based on negligence and that Crown is not an insurer, and a breach of duty to them must be shown; considering the condition of the bus in 1951, its use, service, repair and maintenance by Foster since that time and its condition at the time of the accident; and applying the foregoing rules, we find no substantial evidence on which reasonable minds could differ which would support a conclusion, or even an inference, of negligence on the part of Crown which proximately caused or contributed to the bus failure.

Contrary to appellants' contention that the sale of the bus to Foster took place on September 28, 1956, when Crown gave Foster a bill of sale, the evidence shows that the bus was actually sold to Foster on October 1, 1951. On that date bus 49 was delivered to Foster by Crown pursuant to a 'Lease of School Bus with Option to Purchase,' which, in the course of its business, is the regular method used by Crown to effect a sale upon execution of the document and delivery of the vehicle. The lease-purchase agreement was always intended by both parties to constitute a sale contract and was utilized by Crown as a method of sale without down payment in order to satisfy the bank which had refused to take conditional sales contracts without money down; and under this system the 'bill of sale,' delivered upon the last payment under such an agreement, constitutes no more than an invoice. On October 1, 1951, upon execution of the lease-purchase agreement, Crown immediately filed with the Department of Motor Vehicles a 'Dealer's Report of Sale and Application for Registry' listing Foster as purchaser and registered owner, and Bank of America as legal owner. Thereafter, Crown had no connection with the ownership, use, service, repair, maintenance or inspection of the bus. That Foster also considered the bus to have been 'purchased,' by it on October 1, 1951, is borne out by the evidence that Foster was the registered owner from that date, made regular payments on the purchase price, at all times treated the bus as part of its equipment, never returned it to Crown, never referred it to Crown for any purpose relative to its mechanical condition, maintenance or repair, and, exclusive of Crown, handled all mechanical repairs, maintenance, service and inspections. The acts and conduct of the parties in the light of the lease-purchase agreement, and before any controversy arose as to its meaning, and the intention they reflect (Woodbine v. Van Horn, 29 Cal.2d 95, 173 P.2d 17; Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 297 P.2d 428), are susceptible of only one interpretation--that the parties intended the transaction of October 1, 1951, to constitute a sale, that Crown 'sold' the bus to Foster and the latter 'purchased' it on that date, and that any legal responsibility for the condition of the bus must be imposed upon Crown as of October 1, 1951.

It is undisputed that an unusual sequence of events, involving several successive mechanical failures, caused the accident. Sometime before the accident, two of the four bolts holding the face plate of the universal joint to the brake drum were missing, thus, there were only two bolts in place; a twisting or pounding action caused these two remaining bolts to loosen and back partially out of their holes (one about 3/16ths of an inch, the other 1/2 an inch), and become...