ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(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 or ably 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 province of the trial court to determine whether the evidence establishes negligence as the direct and proximate cause of the loss. If these principles be applied to the record before us, it will clearly appear that we 'cannot disturb the trial court's finding of negli. gence.

One witness, an inspector of oil for the city of Los Angeles and an expert upon the subject of petroleum oils, testified that in his opinion the fact that the petroleum ran out of the 18-inch manhole in the top of the fuel tank was directly attributable to one of three causes. One of the three possible causes given by this expert is that the oil had water in it, and that, being "wet," it was subjected to heat, thus causing it to foam and overflow. The second of these three possible causes is that the oil, though "dry," was heated to such a degree that it expanded and overflowed the space between it and the top of the tank. The third reason assigned by the witness as a possible cause of the fire was that, when the fuel tank was replenished from the storage tank, oil was permitted to run down the sides of the fuel tank.

[3] Of these three causes, the first seems the most probable. The second seems improbable. The engineer, according to his testimony, filled the fuel tank to a level that

The trial court, therefore, in spite of the fact that the engineer did not recollect having turned the steam into the coil pipe, so as to heat the oil in the fuel tank to make it flow more readily, was justified in inferring, as the most probable conclusion, that the oil in the fuel tank was not "dry," but "wet"; that is, that it carried a slight percentage of water, and that the engineer, thoughtlessly, had turned the steam into the steam coil and had forgotten to turn it off, and that thus there happened just what the expert said would happen under such circumstances, namely, a foaming and an overflowing of the oil in the fuel tank, which, running over and down the sides of that tank and being hot enough to throw off inflammable gases, took fire from the flame in the fire box and so caused the disastrous conflagration. It thus was a reasonable inference that the negligent manner in which the mechanism was operated by appellant's engineer occasioned the fire, and that, therefore the destruction of respondent's lumber was caused by appellant's negligence in the manner alleged in the complaint. For these reasons, our conclusion is that the evidence was sufficient to warrant the finding of negligence..

[4] The evidence was likewise sufficient to justify the finding as to the character and scope of the agreement or understanding respecting respondent's assumption of the risk

of loss by fire. It will be recalled that appellant's answer alleges that the understanding was that respondent was to assume the risk of loss by fire or theft resulting from any cause whatsoever, so long as the lumber was on the wharf, but that the court found that the real understanding was that respondent was to assume the risk of loss by fire or theft caused by the strikers, and only during the continuance of the longshoremen's strike.

If the record supported appellant's claim that the evidence justifies no other finding than one in accord with the allegations of its answer, a reversal of the judgment would be necessary, under the doctrine enunciated in Northwestern Mutual Fire Ass'n v. Pacific Wharf & Storage Co. (Cal. Sup.) 200 Pac. 934. In that case it was held that the general rule is that a depositary or bailee for hire in the course of his ordinary business cannot relieve himself by contract or notice from responding in damages for loss arising from his own negligence or that of his agents or servants; but in the case of a strike, with its attendant disorganization of discipline and system, the depositary, particularly if it be a corporation compelled to act only through its employees, may refuse to accept goods, except on condition of being released from liability for damages traceable to such disorganized conditions. There the trial court had found, in effect, that the wharf company received the lumber only upon the understanding that it would not be responsible for any loss or damage from any cause whatever until the strike was over. In the instant case the trial court has found that the understanding with respect to appellant's liability was much narrower than that which was found in the Northwestern Mutual Fire Association Case; and if in the instant case the court's finding be supported by the evidence, the judgment must be affirmed. That the evidence does suffice to justify the finding is, we think, clearly shown by the record.

Whatever be the understanding which was arrived at by appellant and respondent, it was the result of a conversation between a Mr. Forgie, representing the respondent, and Mr. Mills, representing the appellant. Forgie testified, in part, as follows:

The substance of what Mr. Mills said was that he was afraid of the strikers as regards fire or damage of material. * We were discussing the strike, and the thing he referred to was the movement of lumber owing to the strike. There was no question about lumber, than just the trouble of the strike. Q. Referor anything that was going to happen, other ring to the agreement that was entered into between you and Mr. Mills respecting any lumber that was placed on this wharf by the plaintiff during the period of the strike, what strike was referred to? Do you refer to the men handling the lumber? A. They are called in this port lumber handlers. In every other port I ever heard of they call them longshoremen. The strike ended early in August-about the 1st of August. that there were two strikes; there was the My understanding was stevedores' strike and the lumber handlers' strike. It is my understanding that any one working on the wharves, the term is a longshoreman, and one working aboard a vessel, other than a sailor, is a stevedore. Q. Who employs the stevedores? A. The ship A. The Q. Who employs the longshoremen? wharf company. *The Nelson Company

had to assume the responsibility of all lumber that was put on the Pacific Wharf & Storage Company's dock owing to the Pacific Wharf & Storage Company being unable to move material, owing to the strike of the men that were in their employ. * * Q. In other words, you understood from Mr. Mills that it was his intention, or the intention of Pacific Wharf & Storage Company, that the lumber that you rough piled or placed upon that wharf should from that time on be insured by the Nelson Company? A. No; I took it that we had to carry insurance so long as the strike lasted. Q. What I am getting at is what he said, not what you assume. A. I took that from the conversation I had with him. Q. You know the strike lasted there long after the cargo was discharged from the Daisy Gadsby, don't you? A. No; I don't. The strike was over; the Q. strike of the wharfmen was over. the Charles Nelson Company the lumber unWith regard to insurance, did you insure for loaded from the Gadsby on defendant's wharf? A. No, sir. Q. Why not? A. Because on account of the strike of the lumber handlers was over, and the occasion for carrying insurance was past. Q. That is your understanding of it? A. My understanding of it. Q. It wasn't anything Mr. Mills said to you not to 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 fire 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? agreement between Mills and Forgie. It was A. He did. 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.)

10-One liable, if in control of

there was no meeting of minds-that is, if (5. Replevin
Forgie did not understand the arrangement or able to deliver property sought.
as Mills did-there was no agreement, and
hence no defense to appellant's negligence.
From Forgie's testimony the court was war-
ranted in concluding that his understanding
of the arrangement was that appellant was
to be relieved from responsibility for such
loss only as might be directly attributable to
the striking longshoremen.

The judgment is affirmed.

We concur: WORKS, J.; CRAIG, J.

TAYLOR v. BERNHEIM et al. (Civ. 4093.) (District Court of Appeal, First District, Division 1, California. July 1, 1922. Hearing Denied by Supreme Court Aug. 28, 1922.)

1. Replevin

In an action of claim and delivery, if it be shown that the property sought to be recovered is under control of a person, or within his power to deliver it, he is liable, although it may not be in his actual possession. 6. Replevin 10-Attaching creditor, indemnifying sheriff, held liable for wrongful detention of property.

Where, in an action in claim and delivery of an automobile, the owner filed a third party claim, and the sheriff holding it under the 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 damages for its wrongful detention.

7. Replevin 22-Attaching creditor may be joined with attaching officer as defendant. The attaching creditor may be joined with the attaching officer as parties defendant in re

72-Evidence held to establish plevin.

ownership of automobile.

In an action in claim and delivery, evidence that an automobile was purchased by a son for his father, the total purchase money being furnished by the father, the bill of sale executed to him, and the license ultimately transferred in his name, sufficiently established the father's ownership thereof.

8. Evidence 260-Held not admissible on theory of fraudulent conspiracy as to ownership of automobile.

automobile, evidence of statements made as to its alleged ownership by plaintiff's son, not made in the presence of plaintiff, were not admissible on the theory that a fraudulent con

In an action for claim and delivery of an

2. Fraudulent conveyances 37-Use of auto-spiracy existed between the father and son, mobile with consent of owner does not affect

title.

Where an automobile was purchased by a son for his father, the total price being furnished by the father, the bill of sale executed to him, and the license transferred in his name, its use by the son in no way tended to destroy the father's title, under Civ. Code, § 3440.

3. Records 9/2, New, vol. 12A Key-No. Series-Transfer of automobile to plaintiff prior to action established ownership and right to maintain action.

In an action in claim and delivery for an automobile, the required certificate of transfer issued to and signed by plaintiff prior to the commencement of the action, established plaintiff's ownership thereof under Motor Vehicle Act and his consequent legal right to maintain the action, though the license was not transferred until several weeks after purchase.

4. Replevin 10-Lies against persons constructively in "possession" of property at ⚫commencement of action.

An action of claim and delivery will lie only against the persons who have the possession of the property in dispute at the time of its commencement; but the term "possession" is

construed to mean either actual or constructive.

because, before declarations of one conspirator may be competent evidence against his confederate, there must be independent proof tending to establish the conspiracy, which cannot be established as to either of the alleged co-conspirators by evidence of declarations of the other.

9. Evidence 243 (7)-Statements made by agent, after termination of agency, as to ownership of automobile purchased under it, held inadmissible.

In an action in claim and delivery of an automobile, statements made by a son as to its ownership, not made in the presence of his father, for whom he acted as agent in its purchase, were not admissible under the theory of agency, because made after the termination of the agency.

10. Replevin 76-Reasonable rental value of automobile measure of damages for detention.

In action for claim and delivery for automobile, the court was authorized to fix the damages for detention on the basis of its reasonable rental value for the period for which plaintiff was deprived of its use.

[blocks in formation]

[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.

KNIGHT, Justice pro tem. In this action judgment was rendered in favor of plaintiff, Verne W. Taylor, for the possession of an automobile, or for the sum of $1,000, the value thereof, in the event possession could not be had, and for the further sum of $400 damages against the defendant J. H. Bernheim for the wrongful detention of said automobile. The defendant Bernheim has appealed.

check, drawn by himself on his personal account for $1,400. At the request of Taylor, Jr., the bill of sale for the car was made out by Leboire to Taylor, Sr. The car was delivered to Taylor, Jr., and remained in his possession, and was used by him, substantially all of the time until it was attached on October 21, 1920. During that period Taylor, Sr., only drove the car on two or three occasions, and then around San Francisco, and at one time drove it on a hunting trip with his son for a period of about 15 days. The automobile license certificate accompanying the car was transferred direct from Leboire to Taylor, Sr., but the transfer was not completed until October 8, 1920.

There are two persons named Taylor involved in this transaction, the plaintiff, Verne W. Taylor, and his son, Verne J. Taylor, and for convenience they will be hereinafter respectively referred to as Taylor, Sr., and Taylor, Jr. On October 21, 1920, the defendant Bernheim commenced suit against Taylor, Jr., to collect an indebtedness of $1,850, and a writ of attachment was issued and placed in the hands of the defendant Thomas F. Finn, as sheriff, for service. The latter levied the writ upon the automobile in question, which at the time was stored in the name of Taylor, Jr., in a public garage on Geary street, in San Francisco. The next day Taylor, Sr., claiming to be the owner of said automobile, presented to and filed with said sheriff a verified third party claim, in the form required by section 689 of the Code of Civil Procedure. The sheriff thereupon, pursuant to said Code section, exacted from Bernheim a bond indemnifying him against the claim of ownership asserted by Taylor, Sr. The possession of said automobile was thereafter retained by the sheriff, by virtue of said attachment, and on November 30, 1920, Taylor, Sr., commenced this action, to recover said machine, or its value, and damages for its detention. The main issue before the 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 longed to Taylor, Sr., or to his son, Taylor, Jr.

[1, 2] Upon substantially the foregoing evidence the trial court found that Taylor, Sr., was the owner of said automobile. There are, of course, other circumstances shown by the record, which appellant urged before the trial court, in support of his theory that Taylor, Jr., was the owner of the car in question. But, at best, those circumstances merely raise a conflict, and we therefore deem it unnecessary to relate them here. Appellant now attacks the finding of ownership upon the ground that it is not supported by the evidence. It is obvious, however, we think, that, inasmuch as the trial court placed faith in the credibility of the Taylors, as witnesses, and believed their testimony, their evidence is sufficient in law to support the court's finding. It shows that, while Taylor, Sr., did not personally make the purchase, nevertheless the car was purchased at his request and with his money, and he became the owner thereof. The use of the car by Taylor, Jr., as shown by the evidence, with the consent of his father, tended in no way to destroy the title of Taylor, Sr. If Taylor, Jr., had ac

and thereafter transferred the title to his father, then the use of the car thereafter by Taylor, Jr., in the manner and to the extent shown by the evidence, would present a different situation, and would have been sufficient to invoke the provisions of section 3440 of the Civil Code concerning fraudulent transfers. But that is not this case. Here the title to the car never did vest in Taylor, Jr., and, as above stated, title could not vest in

with the permission of the rightful owner.

According to the evidence, Taylor, Sr., who was a traveling salesman, was in need of an automobile for use in his business. On account of his absence from San Francisco he was unable to purchase one personally, so he told his son that, if the latter found a suitable machine, to buy it. A few days prior to 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 sale, and in answer to that advertisement, Taylor, Jr., called upon him for the purpose of examining said car. After some negotiations they came to terms, and Taylor, Jr., so reported to his father. The latter thereupon gave his son $1,400 with which to buy the car, of which $800 was in cash and the balance consisted of a check for $600. That check was produced at the trial. Taylor, Jr.,

[3] On this question of plaintiff's ownership, and his consequent legal right to maintain the action, appellant has sought the aid of the Motor Vehicle Act of California (St. 1915, p. 397, as amended by St. 1917, p. 382), upon the ground that the automobile license was not legally transferred to Taylor, Sr., for nearly three months after the purchase. In this respect said Motor Vehicle Act provides

(209 P.)

matter other than as an officer, and that he was holding the property subject to the direction of appellant. Under the provisions of said section 689 of the Code of Civil Procedure, he was not bound to hold the property in the face of the third party claim, unless Bernheim, as the attaching creditor, furnished an indemnifying bond, which he did. Thereafter it was always within the power of appellant to cause the release of the property, if he cared to do so, by giving the sheriff instructions to that effect. It must therefore be held that appellant was in the ostensible and actual control of the property, and consequently is liable for any damages resulting from its unlawful detention.

that, until the transferee of an automobile agent of appellant, and had no interest in the has received a certificate of registration and has written his name upon the face thereof, delivery of said automobile shall be deemed not to have been made, and title thereto shall be deemed not to have been passed, and said intended transfer shall be deemed incomplete, and not to be valid for any purpose. We are of the opinion that this point is not available to appellant for the reason that, while said license was not transferred for several weeks after the purchase, the required certificate of transfer was issued to and signed by plaintiff on October 8, 1920, almost two months prior to the commencement of this action. Plaintiff's title was therefore complete, so far as the Motor Vehicle Law was concerned, at the time of the commencement of this action. In the case of Boles v. Stiles, 35 Cal. App. 721, 1 relied upon by appellant, the required certificate was neither issued by the motor vehicle department nor signed by the new owner at the time of the commencement of the action. The case is therefore not in point.

[4, 5] Appellant further contends that there is no evidence to sustain the judgment against Bernheim for the recovery of the car or for damages, for the reason that it was the sheriff, and not Bernheim, who seized the car and detained it from the possession of plaintiff. We are of the opinion that the point is without merit. It may be conceded that it is the general rule that an action of claim and delivery will lie only against the persons who have the possession of the property in dispute at the time of its commencement. Richards v. Morey, 133 Cal. 437; 2 Home Payment Jewelry Co. v. Smith, 24 Cal. App. 488, 141 Pac. 933. But the term "possession," as used in this class of cases, has been construed to mean either actual or constructive. 34 Cyc. 1396-1400; Eastern Outfitting Co. v. Myers, 39 Cal. App. 316, 180 Pac. 669. And if it be shown that the property sought to be recov

ered is under the control of a person, or if it be shown that it is within the power of such

person to deliver the property, such person is liable, although the property be not in his actual physical possession. This latter rule is recognized in Richards v. Morey, supra, cited, and is relied upon by appellant. It is

there said:

[7] That the attaching creditor may be joined as a defendant with the attaching of-. ficer, in replevin, is not without precedent, for in the earlier decisions of the New York courts such was held to be the law. In Knapp v. Smith et al., 27 N. Y. 277, it was said:

who directed Moore, the constable, to make the
"A point is made that the defendant Smith,
levy, is not responsible in this form of action,
because, as it is argued, he never had the prop-
erty in his possession. That precise question
was decided against the defendant's position in
Allen v. Crary, 10 Wend. 349. The defendant
in that case had done nothing but to direct the
sheriff to levy upon the property replevied, un-
der an execution against a person who was not
the owner, and a levy was accordingly made.
The court held, that this was a sufficient taking
to enable the owner to bring replevin. *
We therefore follow the case of Allen v. Crary,
and hold that the action was properly brought
against both defendants."

Under the rules above stated, we are of the opinion that the evidence fully justified the rendition of the judgment against the appellant.

the trial court striking out, as hearsay, on [8] Appellant complains of the ruling of motion of plaintiff, certain declarations claimed to have been made by Taylor, Jr., to one Samuels out of the presence of plaintiff, concerning the trading of an automobile belonging to Taylor, Jr., for the car in question. We are satisfied that the ruling of the trial court was correct. The declarations were not admissible under the theory that a fraudulent

"But the finding shows that the property sought to be recovered was not in the posses-conspiracy existed between the two Taylors, sion of the defendant when the action was commenced, nor within his power to deliver, and therefore said finding would not have sustained a judgment in favor of the plaintiffs for the delivery. (Italics are ours.)

[blocks in formation]

as contended by appellant, for the reason that, before declarations of one conspirator may be competent evidence against his confederate, there must be independent proof tending to establish the conspiracy, and such conspiracy itself cannot be proved as to either of the alleged co-conspirators by the evi

dence of the declarations of the other. Barkly v. Copeland, 86 Cal. 483, 25 Pac. 1. 405. There was no such independent proof here.

« ÀÌÀü°è¼Ó »