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(209 P.) conversation had between its agent and de- brought it within not less than 6 inches from fendant's agent, that defendant was seeking the top. If the oil was "dry," and not nearto have plaintiff "assume all such loss or er the top than 6 inches, as the engineer tesdamage as might be caused by the strikers tified, it is not probable that it would expand and for only such material as plaintiff might by the mere application of heat, so as to fill put on said wharf during said last-mentioned the 6-inch space between the level of the pestrike [the strike of the longshoremen); and troleum and the top of the fuel tank. The that the fire in question was not caused by expert so testified, in effect. Nor is there any striker or strikers, but solely by the probability in the third reason assigned by negligence of said defendant.” The court the expert as one of the possible causes of further found that plaintiff never contracted the fire. The engineer was positive that he or intended to contract to relieve defendant had not filled the fuel tank; and if any oil from its own negligence, but had in mind had dripped onto that tank from the filling only the danger of loss or injury to lumber pipe which extended from the storage tank, which might be caused by the strikers. and been permitted to run down the side of

Appellant disputes its liability for the de- the fuel tank, it probably would not have struction of respondent's lumber, claiming been ignited by the fire in the fire box, for it that the evidence is insufficient to sustain would not have been hot enough to generate either the finding that the fire was caused by the necessary combustible gases. Moreover, its negligence, or the finding that respondent if that had been the cause of the fire, it probdid not contract to assume all loss of orably would have manifested itself long bedamage to the lumber arising from fire re-fore the expiration of the hour and more sulting from any cause whatsoever during which ensued between the time when the the time that the lumber was on the wharf. engineer replenished the oil in the fuel tank

[1,2] If there is any evidence to warrant from the storage tank and the time when the the finding of negligence we cannot review it fire was discovered on the floor of the flat car. on appeal. Direct and positive evidence of On the other hand, if, as sometimes happens, negligence as a fact is not required. Any the oil in the fuel tank was "wet" with a circumstances which tend to prove it or from small percentage of water, and the steam which it reasonably may be inferred will from the boiler had been allowed to flow for suffice. When the evidence of negligence as a considerable length of time into the coil a fact is conflicting, or when, as here, the pipe in the fuel tank, the oil ultimately evidence consists of circumstances from would foam and flow over the 18-inch hole in which inferences may be drawn for or the top of the tank. against the alleged negligence, it is the prov. The trial court, therefore, in spite of the ince of the trial court to determine wheth- fact that the engineer did not recollect hav. er the evidence establishes negligence as the ing turned the steam into the coil pipe, so as direct and proximate cause of the loss. If to heat the oil in the fuel tank to make it these principles be applied to the record be flow more readily, was justified in inferring, fore us, it will clearly appear that we can- as the most probable conclusion, that the oil not disturb the trial court's finding of negli. in the fuel tank was not "dry," but "wet"; gence.

that is, that it carried a slight percentage of One witness, an inspector of oil for the water, and that the engineer, thoughtlessly, city of Los Angeles and an expert upon the had turned the steam into the steam coil and subject of petroleum oils, testified that in had forgotten to turn it off, and that thus his opinion the fact that the petroleum ran there happened just what the expert said out of the 18-inch manhole in the top of the would happen under such circumstances, fuel tank was directly attributable to one namely, a foaming and an overflowing of the of three causes. One of the three possible oil in the fuel tank, which, running over and causes given by this expert is that the oil down the sides of that tank and being hot had water in it, and that, being "wet," it enough to throw off inflammable gases, took was subjected to heat, thus causing it to fire from the flame in the fire box and so foam and overflow. The second of these caused the disastrous conflagration. It thus three possible causes is that the oil, though was a reasonable inference that the negli“dry," was heated to such a degree that it gent manner in which the mechanism was expanded and overflowed the space between operated by appellant's engineer occasioned it and the top of the tank. The third rea- the fire, and that, therefore the destruction son assigned by the witness as a possible of respondent's lumber was caused by appelcause of the fire was that, when the fuel lant's negligence in the manner alleged in tank was replenished from the storage tank, the complaint. For these reasons, our conoil was permitted to run down the sides of clusion is that the evidence was sufficient to the fuel tank.

warrant the finding of negligence., [3] Of these three causes, the first seems [4] The evidence was likewise sufficient to the most probable. The second seems im- justify the finding as to the character and probable. The engineer, according to his tes- scope of the agreement or understanding retimony, filled the fuel tank to a level that specting respondent's assumption of the risk of loss by fire. It will be recalled that ap- The substance of what Mr. Mills said was that pellant's answer alleges that the understand he was afraid of the strikers as regards fire ing was that respondent was to assume the or damage of material. • We were disrisk of loss by fire or theft resulting from any cussing the strike, and the thing he referred cause whatsoever, so long as the lumber was to was the movement of lumber owing to the on the wharf, but that the court found that strike. There was no question about lumber, the real understanding was that respondent than just the trouble of the strike.Q. Refer

or anything that was going to happen, other was to assume the risk of loss by fire or theft ring to the agreement that was entered into caused by the strikers, and only during the between you and Mr. Mills respecting any lumcontinuance of the longshoremen's strike.

ber that was placed on this wharf by the plainIf the record supported appellant's claim tiff during the period of the strike, what strike that the evidence justifies no other finding was referred to? Do you refer to the men than one in accord with the allegations of its handling the lumber? A. They are called in answer, a reversal of the judgment would be this port lumber handlers. In every other port necessary, under the doctrine enunciated in I ever heard of they call them longshoremen. Northwestern Mutual Fire Ass'n v. Pacific The strike ended early in August-about the Wharf & Storage Co. (Cal. Sup.) 200 Pac. 934. that there were two strikes; there was the

1st of August.

My understanding was In that case it was held that the general stevedores' strike and the lumber handlers' rule is that a depositary or bailee for hire in strike... It is my understanding that the course of his ordinary business cannot any one working on the wharves, the term is relieve himself by contract or notice from re- a longshoreman, and one working aboard a sponding in damages for loss arising from vessel, other than a sailor, is a stevedore. Q. his own negligence or that of his agents or Who employs the stevedores? A. The ship servants; but in the case of a strike, with | Q. Who employs the longshoremen? A. The its attendant disorganization of discipline wharf company. * The Nelson Company and system, the depositary, particularly if bad to assume the responsibility of all lumber it be a corporation compelled to act only that was put on the Pacific Wharf & Storage through its employees, may refuse to accept Storage Company being unable to move mate

Company's dock owing to the Pacific Wharf & goods, except on condition of being released rial, owing to the strike of the men that were from liability for damages traceable to such in their employ. * * Q. In other words, disorganized conditions. There the trial you understood from Mr. Mills that it was his court had found, in effect, that the wharf intention, or the intention of Pacific Wharf & company received the lumber only upon the Storage Company, that the lumber that you understanding that it would not be respon- rough piled or placed upon that wharf should sible for any loss or damage from any cause from that time on be insured by the Nelson whatever until the strike was over.

In the Company? A. No; I took it that we had to instant case the trial court has found that IQ. What I am getting at is what he said, not

carry insurance so long as the strike lasted. the understanding with respect to appellant's what you assume. A. I took that from the liability was much narrower than that which conversation I had with him. Q. You know the was found in the Northwestern Mutual Fire strike lasted there long after the cargo was Association Case; and if in the instant case discharged from the Daisy Gadsby, don't you? the court's finding be supported by the evi- A. No; I don't. The strike was over; the dence, the judgment must be affirmed. That strike of the wharfmen was over. the evidence does suffice to justify the find. With regard to insurance, did you insure for

the Charles Nelson Company the lumber uning is, we think, clearly shown by the rec-loaded from the Gadsby on defendant's wharf? ord.

A. No, sir. Q. Why not? A. Because on acWhatever be the understanding which was count of the strike of the lumber handlers was arrived at by appellant and respondent, it over, and the occasion for carrying insurance was the result of a conversation between a was past. * * Q. That is your understandMr. Forgie, representing the respondent, and ing of it? A. My understanding of it. Q. It Mr. Mills, representing the appellant. For wasn't anything Mr. Mills said to you not to gie testified, in part, as follows:

insure? A. Other than my understanding at

the start of the strike." "This whole conversation was with reference to lumber that we were going to discharge

We think it clear from the foregoing that during the strike, and the sum and substance there was ample justification for the inferof Mr. Mills' conversation was that they [ap- ence that the parties had in mind the danger pellant] would not be responsible for loss by of loss or injury caused by the strikers, and tire or damage on any material discharged from then only during the strike of appellant's the dock during the period of the strike.

employees—the longshoremen. There was no Q. Was anything said by Mr, Mills as to who sharply defined, definite, and explicit verbal he expected might cause a loss to any lumber piled on the wharf? A. He did. It was

agreement between Mills and Forgie. It was naturally what he thought, that it would be from a rather desultory conversation that strikers he was afraid of. Q. Did he in words each received his impression of what the arimpress you with that view? A. In substance, rangement amounted to, and, since the buryes; that was what he was afraid of, strikers den was upon appellant to prove a mutual-of any damage that they might cause.

ly understood agreement, it follows that, if

(209 P.) there was no meeting of minds--that is, if 5. Replevin 10-One liable, if in control of Forgie did not understand the arrangement or able to deliver property sought. as Mills did there was no agreement, and In an action of claim and delivery, if it be hence no defense to appellant's negligence. shown that the property sought to be recovered From Forgie's testimony the court was war. is under control of a person, or within his powranted in concluding that his understanding er to deliver it, he is liable, although it may of the arrangement was that appellant was

not be in his actual possession. to be relieved from responsibility for such 6. Replevin Ow10-Attaching creditor, indemloss only as might be directly attributable to nifying sheriff, held liable for wrongful detenthe striking longshoremen.

tion of property. The judgment is affirmed.

Where, in an action in claim and delivery of an automobile, the owner filed a third par

ty claim, and the sheriff holding it under the We concur: WORKS, J.; CRAIG, J.

writ demanded, and plaintiff as attaching creditor furnished, an indemnifying bond, it was always within the power of plaintiff to release the property by so instructing the sheriff, and thus having the ostensible and actual control of the

property, he was consequently liable for any TAYLOR v. BERNHEIM et al. (Civ. 4093.) damages for its wrongful detention. (District Court of Appeal, First District, Di. 7. Replevin Em 22—Attaching créditor may be

vision 1, California. July 1, 1922. Hearing joined with attaching officer as defendant. Denied by Supreme Court Aug. 28, 1922.)

The attaching creditor may be joined with

the attaching officer as parties defendant in re1. Replevin Om72-Evidence held to establish plevin. ownership of automobile.

8. Evidence On 260-Held not admissible on In an action in claim and delivery, evidence

theory of fraudulent conspiracy as to owner. that an automobile was purchased by a son for

ship of automobile. his father, the total purchase money being furnished by the father, the bill of sale executed automobile, evidence of statements made as to

In an action for claim and delivery of an to him, and the license ultimately transferred its alleged ownership by plaintiff's son, not in his name, sufficiently established the father's made in the presence of plaintiff, were not adownership thereof.

missible on the theory that a fraudulent con2. Fraudulent conveyances 37-Use of auto. spiracy existed between the father and son,

mobile with consent of owner does not affect because, before declarations of one conspirator title.

may be competent evidence against his confed

erate, there must be independent proof tending Where an automobile was purchased by a to establish the conspiracy, which cannot be son for his father, the total price being furnish- established as to either of the alleged co-coned by the father, the bill of sale executed to spirators by evidence of declarations of the him, and the license transferred in his name, its other. use by the son in no way tended to destroy the father's title, under Civ. Code, g 3440.

9. Evidence on 243(7)-Statements made by

agent, after termination of agency, as to own. 3. Records fm91/2, New, vol. 12A Key-No. Se. ership of automobile purchased under it, held

ries-Transfer of automobile to plaintiff prior inadmissible. to action established ownership and right to

In an action in claim and delivery of an aumaintain action.

tomobile, statements made by a son as to its In an action in claim and delivery for an au- ownership, not made in the presence of his tomobile, the required certificate of transfer is- father, for whom he acted as agent in its pursued to and signed by plaintiff prior to the com- chase, were not admissible under the theory of mencement of the action, established plaintiff's agency, because made after the termination of ownership thereof under Motor Vehicle Act and the agency. his consequent legal right to maintain the action, though the license was not transferred un- 10. Replevin Ow76—Reasonable rental value of til several weeks after purchase.

automobile measure of damages for detention.

In action for claim and delivery for auto4. Replevin mm 10-Lies against persons con- mobile, the court was authorized to fix the dam

structively in "possession" of property at ages for detention on the basis of its reasonable commencement of action.

rental value for the period for which plaintiff An action of claim and delivery will lie only was deprived of its use. against the persons who have the possession of the property in dispute at the time of its

Appeal from Superior Court, City and commencement; but the term “possession” is County of San Francisco; James M. Troutt, construed to mean either actual or construc

Judge. tive.

[Ed. Note. For other definitions, see Words Action by Verne W. Taylor against J. H. and Phrases, First and Second Series, Posses- Bernheim and another. From a judgment sion.)

for plaintiff, defendants appeal. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Brownstone & Goodman, of San Francisco, deposited the check in his personal account for appellants.

in the bank, and on July 26, 1920, purchased Wm. M. Stafford, of San Francisco, for the car, by delivering to Leboire a certified respondent.

check, drawn by himself on his personal ac

count for $1,400. At the request of Taylor, KNIGHT, Justice pro tem. In this action Jr., the bill of sale for the car was made judgment was rendered in favor of plaintiff, 1 out by Leboire to Taylor, Sr. The car was Verne W. Taylor, for the possession of an delivered to Taylor, Jr., and remained in his automobile, or for the sum of $1,000, the possession, and was used by him, substantialvalue thereof, in the event possession could ly all of the time until it was attached on Ocnot be had, and for the further sum of $400 tober 21, 1920. During that period Taylor, damages against the defendant J. H. Bern. Sr., only drove the car on two or three occaheim for the wrongful detention of said auto sions, and then around San Francisco, and at mobile. The defendant Bernheim has ap- one time drove it on a hunting trip with his pealed.

son for a period of about 15 days. The autoThere are two persons named Taylor in- mobile license certificate accompanying the volved in this transaction, the plaintiff, car was transferred direct from Leboire to Verne W. Taylor, and his son, Verne J. Tay- Taylor, Sr., but the transfer was not completlor, and for convenience they will be here- ed until October 8, 1920. inafter respectively referred to as Taylor, [1, 2] Upon substantially the foregoing eviSr., and Taylor, Jr. On October 21, 1920, the dence the trial court found that Taylor, Sr., defendant Bernheim commenced suit against was the owner of said automobile. There Taylor, Jr., to collect an indebtedness of are, of course, other circumstances shown by $1,850, and a writ of attachment was issued the record, which appellant urged before the and placed in the hands of the defendant trial court, in support of his theory that TayThomas F. Finn, as sheriff, for service. The lor, Jr., was the owner of the car in question. latter levied the writ upon the automobile in But, at best, those circumstances merely raise question, which at the time was stored in the a conflict, and we therefore deem it unnecesname of Taylor, Jr., in a public garage on sary to relate them here. Appellant now atGeary street, in San Francisco. The next tacks the finding of ownership upon the day Taylor, Sr., claiming to be the owner of ground that it is not supported by the evisaid automobile, presented to and filed with dence. It is obvious, however, we think, that, said sheriff a verified third party claim, in inasmuch as the trial court placed faith in the form required by section 689 of the Code the credibility of the Taylors, as witnesses, of Civil Procedure. The sheriff thereupon, and believed their testimony, their evidence pursuant to said Code section, exacted from is sufficient in law to support the court's Bernheim a bond indemnifying him against finding. It shows that, while Taylor, Sr., did the claim of ownership asserted by Taylor, not personally make the purchase, nevertheSr. The possession of said automobile was less the car was purchased at his request and thereafter retained by the sheriff, by virtue with his money, and he became the owner of said attachment, and on November 30, thereof. The use of the car by Taylor, Jr., 1920, Taylor, Sr., commenced this action, to as shown by the evidence, with the consent of recover said machine, or its value, and dam- his father, tended in no way to destroy the ages for its detention. The main issue before title of Taylor, Sr. If Taylor, Jr., had acthe trial court was the one of the ownership quired ownership of the car in the first place, of said automobile, that is, whether it be and thereafter transferred the title to his falonged to Taylor, Sr., or to his son, Tay- ther, then the use of the car thereafter by lor, Jr.

Taylor, Jr., in the manner and to the extent According to the evidence, Taylor, Sr., who shown by the evidence, would present a difwas a traveling salesman, was in need of an ferent situation, and would have been suffiautomobile for use in his business. On ac- cient to invoke the provisions of section 3410 count of his absence from San Francisco he of the Civil Code concerning fraudulent transwas unable to purchase one personally, so he fers. But that is not this case. Here the titold his son that, if the latter found a sạita- tle to the car never did vest in Taylor, Jr., ble machine, to buy it. A few days prior to and, as above stated, title could not vest in July 20, 1920, Leon Leboire, the former own- him merely by allowing him to drive the car er of the car in question, advertised it for with the permission of the rightful owner. sale, and in answer to that advertisement, [3] On this question of plaintiff's ownerTaylor, Jr., called upon him for the purpose ship, and his consequent legal right to mainof examining said car. After some negotia- tain the action, appellant has sought the aid tions they came to terms, and Taylor, Jr., so of the Motor Vehicle Act of California (St. reported to his father. The latter thereupon 1915, p. 397, as amended by St. 1917, p. 382), gave his son $1,400 with which to buy the upon the ground that the automobile license car, of which $800 was in cash and the bal- was not legally transferred to Taylor, Sr., for ance consisted of a check for $600. That nearly three months after the purchase. In check was produced at the trial. Taylor, Jr., I this respect said Motor Vehicle Act provides (209 P.) that, until the transferee of an automobile | agent of appellant, and had no interest in the has received a certificate of registration and matter other than as an officer, and that he has written his name upon the face thereof, was holding the property subject to the didelivery of said automobile shall be deemed rection of appellant. Under the provisions of not to have been made, and title thereto shall said section 689 of the Code of Civil Proce be deemed not to have been passed, and said dure, he was not bound to hold the property intended transfer shall be deemed incomplete, in the face of the third party claim, unless and not to be valid for any purpose. We are Bernheim, as the attaching creditor, furnishof the opinion that this point is not availa- ed an indemnifying bond, which he did. ble to appellant for the reason that, while Thereafter it was always within the power said license was not transferred for several of appellant to cause the release of the propweeks after the purchase, the required certifi- erty, if he cared to do so, by giving the shercate of transfer was issued to and signed by iff instructions to that effect. It must thereplaintiff on October 8, 1920, almost two | fore be held that appellant was in the osten-, months prior to the commencement of this ac- sible and actual control of the property, and tion. Plaintiff's title was therefore complete, consequently is liable for any damages reso far as the Motor Vehicle Law was con- sulting from its unlawful detention. cerned, at the time of the commencement of [7] That the attaching creditor may be this action. In the case of Boles v. Stiles, 35 joined as a defendant with the attaching of-, Cal. App. 721, 1 relied upon by appellant, the ficer, in replevin, is not without precedent, required certificate was neither issued by the for in the earlier decisions of the New York motor vehicle department nor signed by the courts such was held to be the law. In new owner at the time of the commencement Knapp v. Smith et al., 27 N. Y. 277, it was of the action. The case is therefore not in said: point. [4, 5] Appellant further contends that there who directed Moore, the constable, to make the

"A point is made that the defendant Smith, is no evidence to sustain the judgment against levy, is not responsible in this form of action, Bernheim for the recovery of the car or for because, as it is argued, he never had the propdamages, for the reason that it was the sher. erty in his possession. That precise question iff, and not Bernheim, who seized the car and was decided against the defendant's position in detained it from the possession of plaintiff. Allen v. Crary, 10 Wend. 349. The defendant We are of the opinion that the point is with in that case had done nothing but to direct the out merit. It may be conceded that it is the sheriff to levy upon the property replevied, ungeneral rule that an action of claim and de- der an execution against a person who was not livery will lie only against the persons who The court held, that this was a sufficient taking

the owner, and a levy was accordingly made. have the possession of the property in dispute to enable the owner to bring replevin. at the time of its commencement. Richards We therefore follow the case of Allen v. Crary, V. Morey, 133 Cal. 437; 2 Home Payment Jew- and hold that the action was properly brought elry Co. y. Smith, 24 Cal. App. 488, 141 Pac. against both defendants." 933. But the term “possession," as used in this class of cases, has been construed to

Under the rules above stated, we are of mean either actual or constructive. 34 Cyc. the opinion that the evidence fully justified 1396-1400; Eastern Outfitting Co. v. Myers, the rendition of the judgment against the ap39 Cal. App. 316, 180 Pac. 669. And if it be

pellant. shown that the property sought to be recovered is under the control of a person, or if it

[8] Appellant complains of the ruling of be shown that it is within the power of such the trial court striking out, as hearsay, on

motion of plaintiff, certain declarations claimperson to deliver the property, such person is liable, although the property be not in his ed to have been made by Taylor, Jr., to one actual physical possession. This latter rule Samuels out of the presence of plaintiff, conis recognized in Richards v. Morey, supra, cerning the trading of an automobile belongcited, and is relied upon by appellant. It is ing to Taylor, Jr., for the car in question. We there said:

are satisfied that the ruling of the trial court

was correct. The declarations were not ad“But the finding shows that the property missible under the theory that a fraudulent sought to be recovered was not in the possession of the defendant when the action was com conspiracy existed between the two Taylors, menced, nor within his power to deliver, and as contended by appellant, for the reason therefore said finding would not have sustained that, before declarations of one conspirator a judgment in favor of the plaintiffs for the de- may be competent evidence against his conlivery. (Italics are ours.)

federate, there must be independent proof

tending to establish the conspiracy, and such [6] In the instant case the evidence shows conspiracy itself cannot be proved as to eithat the sheriff was acting merely as the ther of the alleged co-conspirators by the evi

dence of the declarations of the other. Bark1 For opinion of Supreme Court, see Cal,

ly v. Copeland, 86 Cal. 483, 25 Pac. 1, 405. 204 Pac. 848.

There was no such independent proof here. * 65 Pac. 886.

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