ROSE E. SEELEY et al., Plaintiffs and Respondents v. JOHNNY COMBS, Defendant and Appellant, 65 Cal. 2d 127

PETERS, J.—Defendant Combs appeals from a judgment against him and in plaintiffs’ favor for damages for the destruction by fire of a barn and certain other property. The court, sitting without a jury, found that the fire was caused by the negligence of defendant Combs in operating a truck rented from the codefendant The Hertz Corporation. Appellant Combs attacks this judgment, mainly on the ground that the findings are not supported by the evidence.

Such a judgment, when attacked on evidentiary grounds, must be affirmed when there is any evidence, direct or circumstantial, to support the findings of the trial court. Stated negatively, such a judgment cannot be reversed unless there is no evidence, direct or circumstantial, to support the findings. These rules are elementary. In the instant case there was no direct evidence as to what caused the fire to start. Such evidence as exists is entirely circumstantial, and largely based on the inferences permissible under the doctrine of res ipsa loquitur.

Appellant Combs asked for and secured from the trial court specific findings of negligence and proximate cause under

section 634 of the Code of Civil Procedure. The appellant seems to contend that such specific findings cannot be supported by circumstantial evidence, at least where that evidence depends on the inferences raised by the doctrine of res ipsa loquitur. It is urged that the inferences created by the doctrine of res ipsa loquitur cannot be used in a nonjury case to support specific findings made under

section 634. Appellant also contends that the doctrine of res ipsa loquitur is not here applicable. Both contentions are unsound. Direct evidence is not required to support specific findings made under

section 634. The doctrine of res ipsa loquitur is applicable to the facts of this ease. That doctrine furnishes the inferences that support the specific findings of negligence and proximate cause. The inferences resulting from the application of the doctrine of res ipsa loquitur are but a form of circumstantial evidence.

The use of that battered and somewhat ambiguous phrase does not change the fact that what we are talking about is a special application of the rules surrounding the use and weight of circumstantial evidence (Prosser on Torts (3d ed. 1964) p. 217), and that the doctrine is applicable to non jury as well as jury cases. As is later pointed out, all of the elements required by the cases to apply the doctrine are here present.

In addition to the cases hereafter cited the following quotation from Prosser on Torts (3d ed. 1964) page 216 is peculiarly applicable : “ [I] t may be reasonable to infer . . . from the fact that soon after the passage of a train a fire started up beside the track, that it was caused by negligence in controlling sparks from the train.” (See particularly the quotation from Viera v. Atchison etc. Ry. Co., 10 Cal.App. 267 [101 P. 690], infra.) Every point involved on this appeal was fully, properly, and correctly disposed of in the opinion written by the Honorable Frederick E.

Stone for the intermediate appellate court when this case was there pending. That opinion is adopted as part of this opinion. It reads as follows (Cal.App.) [47 Cal.Rptr. 744, 745-748] : This is an appeal from a judgment for damages for the destruction of a barn, hay, fencing, machinery and livestock, by a fire which the court, sitting without a jury, found was caused by the negligence of defendant Combs in hauling hay into the barn by truck.

Plaintiff Bolinger, manager of a ranch owned by plaintiff Seeley, made arrangements with Combs to haul hay from the field and stack it in the Seeley bam according to Bolinger’s instructions. The barn was 60 by 60 feet, with a high central portion in which hay was stored, and a lower covered

section at each side for livestock, used at the time as pigpens. Defendant and his helper stacked the baled dry oat and vetch hay in the barn after the truck was backed through a central door 20 feet high and 10 feet wide. On the morning of the fire hay was stacked flush with the door on both sides and in the passageway from the back to within 15 feet of the door, leaving a space approximately 10 by 15 feet surrounded on three sides by hay stacked to the rafters. The truck was being backed into this space when the fire started.

Defendant brought in the third load of the morning, swung the truck about in order to back into the barn, shut off the motor and released the ropes holding the load. He then started the motor, backed the truck into the barn which was strewn with loose hay, and when the loaded truckbed was completely inside the barn, heard his helper shout that the barn was on fire. Stepping out onto the running board, defendant saw smoke coming from the right rear side of the truck.

He got back into the cab, drove the truck clear of the barn, stepped out, looked back and observed flames leaping up the hay on the passenger side of the truck. At the time of trial the whereabouts of defendant’s helper was unknown, so we do not have the benefit of his testimony. Pursuant to Code of Civil Procedure

section 634, defendant requested special findings of fact. After a hearing thereon and on objections to proposed findings, the trial court found: “V. That on the 6th day of June, 1962, the defendant Johnny Combs negligently drove said motor vehicle into the said barn which contained inflammable material, to wit: loose hay and straw at which time hot gas and sparks emanated from the exhaust system of the truck, which caused the said hay to ignite, proximately causing the damage hereinafter set forth.” Since no one saw the fire start, the finding, if it is to be sustained, must rest on circumstantial evidence.

Defendant argues that it cannot because, first, fundamentally specific findings of causation are incompatible with the doctrine of res ipsa loquitur; second, even though res ipsa loquitur is applicable, the circumstantial evidence reflected by the record is not substantial. As to the first point, neither side has cited us a case, and we find no authority construing the effect of a specific finding of causation upon the applicability of res ipsa loquitur. There are two analogies, however, which point toward an answer to the question. One is the line of cases pointed up by Di Mare v.

Cresci, 58 Cal.2d 292, 299 [23 Cal.Rptr. 772, 373 P.2d 860], holding that the introduction of evidence of specific acts of negligence does not deprive a plaintiff of the benefit of the doctrine of res ipsa loquitur unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law so that justification for resort to the inference of negligence is eliminated.

The other line of cases uphold jury verdicts by applying the doctrine of res ipsa loquitur even though the doctrine was not invoked in the trial court or on the appeal, and in the absence of instructions on the subject. The Supreme Court said, in Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414, at page 418 [289 P.2d 226] : “While it would appear that the doctrine of res ipsa loquitur is clearly applicable as between plaintiff and Feb and Transit Lines, plaintiff did not invoke the doctrine either in the trial court or on this appeal.

It may be relied upon, however, to support a judgment even though plaintiff offers no jury instruction on the subject and none is given.” With these principles in mind, we turn to the finding in question and note, first, the classic rule that findings must state ultimate facts; they should not relate the evidentiary facts relied upon by the court to reach the ultimate facts. We see no reason for holding that a court cannot derive a specific ultimate fact from circumstantial evidentiary facts.

If the critical evidence as to an issue is largely circumstantial, as sometimes happens, it is the only way that a court can comply with Code of Civil Procedure

section 634 and make specific findings of ultimate facts. Had the case been tried to a jury rather than to the court and a plaintiff’s verdict returned, there is no question that res ipsa loquitur would apply. (Wolf-smith v. Marsh, 51 Cal.2d 832, 835 [337 P.2d 70, 82 A.L.R.2d 1257]; Kenna v. Scales, 61 Cal.2d 779, 783 [40 Cal.Rptr. 65, 394 P.2d 809].) By parallel reasoning, the doctrine of res ipsa loquitur applies to circumstantial evidentiary facts from which specific ultimate facts are inferred by a trial judge. We find support for this reasoning in Bruce v.

Ullery, 58 Cal.2d 702, wherein the Supreme Court said, at page 711 [25 Cal.Rptr. 841, 375 P.2d 833] : “Furthermore, negligence may be proved circumstantially like any other issue of fact, and indirect evidence may outweigh direct evidence on the contested point. [Citation.] As we said in Gray v. Southern Pac.

Co. (1944) 23 Cal.2d 632 [145 P.2d 561], at page 641: The jury ‘could reject positive testimony and accept circumstantial evidence as proof of the facts, as it is elementary that direct evidence may be disbelieved and contrary circumstantial evidence relied upon to support a verdict or finding.’ ” Nor does the fact that this case involves a fire make the doctrine of res ipsa loquitur inapplicable. In Greening v.

General Air Conditioning Corp., 233 Cal.App.2d 545, the court observed, at page 552 [43 Cal.Rptr. 662] : “Fire damage cases have no peculiar characteristics isolating them from res ipsa loquitur.” Before considering the sufficiency of the evidence in detail, we note that the three conditions upon which the applicability of res ipsa loquitur rests were present. (See Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R 1258].) First, fires do not ordinarily occur during the loading or unloading of bales of hay in a barn, in the absence of someone’s negligence. (Keena v.

Scales, supra, at p. 782.) Second, the barn, the hay, and the truck were within the exclusive control of defendant at the time the fire was discovered. (Shahinian v. McCormick, 59 Cal.2d 554, 559 [30 Cal.Rptr. 521, 381 P.2d 377]; Exploration Drilling Co. v. Heavy Transport, Inc., 220 Cal.App.2d 397 [33 Cal.Rptr. 747] ; Hansen v. Matich Corp., 234 Cal.App.2d 129 [44 Cal.Rptr. 149].) Third, there was no evidence that any act on the part of plaintiffs contributed to the cause of the fire.

The evidentiary facts upon which the trial court predicated the finding of ultimate fact to which defendant objects, disclose that defendant was hauling the third load of baled hay that morning with resultant hot exhaust when he backed the truck into a 10-by-15-foot area surrounded on three sides by readily combustible dry oat and vetch baled hay stacked from the floor to the rafters, cutting off any circulation of air. Further, the high roof in the center

section of the barn sloped downward to cover the cattle sheds on each side, so that the sides of the roof were lower than the center, thus trapping the hot air. The truck was closing up the small area, backing over a floor littered with fragments of dry oat and vetch hay that was even more combustible than the baled hay because of its looseness and tendency to waft from the force of the exhaust. Defendant introduced evidence that the truck muffler protected against sparks and an experiment indicating that hot gas from the exhaust would not ignite a gasoline-soaked rag.

The evidence does not reflect that this experiment was conducted under conditions similar to those existing at the time the fire broke out. There is nothing to indicate that the truck had been driven the equivalent of three round trips, picking up and unloading hay, with the consequent heating from heavy-duty hauling.

No dry oat or vetch hay was placed near the exhaust, nor was the test conducted in a 10-by-15-foot area surrounded on three sides by baled hay stacked to the rafters and covered by a sloping roof that prevented circulation of air and, further, with the truck gradually backing into and filling up the 10-by-15-foot area. Defendant points out that the fire started on the right side of the truck, while the exhaust pipe and muffler were located near the left side, but that is not conclusive since gases being forced out the exhaust might blow the hay fragments in any direction.

Defendant also argues that hay is frequently ignited by spontaneous combustion. We are not told, however, whether spontaneous combustion occurs in a cleared area such as that between the truck and the stacked hay, as well as in the interior of a stack of hay where gases are generated by compression and heat. The possibilities put forward by defendant do not, as a matter of law, demonstrate that the fire could not have been caused as found by the court under the doctrine of res ipsa loquitur. (Rose v. Melody Lane, 39 Cal.2d 481, 487 [247 P.2d 335]; Leet v. Union Pac. R.R.

Co., 25 Cal.2d 605, 622 [155 P.2d 42,158 A.L.R. 1008].) On the other hand, the evidence that supports the findings is substantial, even though it is circumstantial. In Viera v. Atchison, Topeka & Santa Fe Ry. Co., 10 Cal.App. 267 [101 P. 690], the court in considering circumstantial evidence under circumstances quite similar to those before us said, at page 269: “We apprehend that there are few cases of damage caused by a defendant’s negligence in setting fire, or allowing it to escape, in which anyone actually saw the fire at the moment it escaped, or the place when it first started.

It was the duty of the jurors to ascertain the truth as to every fact in issue, and from experience and common knowledge to make reasonable inferences from such fact or facts. The burden was upon plaintiff to prove that the fire was caused by defendant; that it was also due to defendant’s negligence; but such proof need only be by a preponderance of evidence, and such as to satisfy and produce conviction in an unprejudiced mind. The law does not require demonstration, or absolute certainty, because such proof is rarely possible. Moral certainty only is required.

We must call in aid of the verdict all deductions which the jury could make from the facts proved. Nearly all cases are determined on the reasonable probability of the fact being as found. Human laws and institutions are not perfect, and with the most careful vigilance of the judge, and the most conscientious discharge of their duty by twelve men duly sworn, the final result in most cases is but an approximation.

In the present ease it has not been demonstrated beyond doubt that the fire was caused by sparks escaping from defendant’s engine, but a fire did occur, and originated on or near defendant’s right of way, on which was a large quantity of dry grass; it was seen almost immediately after defendant’s engine had passed. Plaintiff’s property was destroyed. The reasonable probability that the fire was caused by sparks from defendant's passing engine has been determined by the agreement of twelve men.

This is one of the methods the law has provided for the settlement of questions of fact, and we cannot set aside the verdict of the jury when supported by such evidence as herein indicated.” (See also Dibble v. San Joaquin Light & Power Corp., 47 Cal.App. 112 [190 P. 198]; W. B. Camp & Sons, Inc. v. Turner Steel etc. Co., 141 Cal.App.2d 569, 571 [297 P.2d 125].) Once it is determined there is substantial evidence to support the inference drawn by the court, the inference is itself evidence. (Ales v. Ryan, 8 Cal.2d 82, 99 [64 P.2d 409] ; Druzanich v. Criley, 19 Cal.2d 439, 445 [122 P.2d 53]; Gerhardt v.

Fresno Medical Group, 217 Cal.App.2d 353, 361 [31 Cal.Rptr. 633].) In these circumstances the rule governing appellate review is as stated in Smith v. Bull, 50 Cal.2d 294, at page 306 [325 P.2d 463] : “When there is substantial evidence or any inference to be drawn from the evidence to support the findings of the trial court, an appellate court will not make determinations of factual issues contrary to those made by the trier of fact. ’ ’ The purported appeal by The Hertz Corporation is dismissed ; the judgment against appellant Combs is affirmed. Tobriner, J., Peek, J., and Mosk, J., concurred.

The Hertz Corporation also purports to appeal from that judgment. An examination of the judgment discloses that it is silent as to any liability of The Hertz Corporation to anyone. The purported appeal by it should be dismissed.