Stillwell v. R.C.A. Manufacturing Co.

BARNARD, P. J. This is an action for damages. The plaintiff was the owner of a building in which he operated a moving picture theatre at Big Bear Valley, a summer resort in the San Bernardino Mountains. The sound system used in this theatre was manufactured and serviced by defendant R.C.A. Manufacturing Company. On June 21, 1941, at the plaintiff’s request, the defendant corporation sent its service man, C. L. Cronkhite (sued herein as Roy Kronkhiet), to repair this sound equipment. In the course of the repairs in the projection room of the theatre Cronkhite laid a hot electric soldering iron upon a work bench. Shortly thereafter, one Carl Teschan, who was employed by the plaintiff to operate the projection machine and who'on this occasion had let Cronkhite into the theatre to do the repair work, undertook to rewind a film from one spool to another. As this operation was being completed the last few feet of the film flopped around, as is customary in such cases, and the end of the film came in contact with the hot iron, starting a fire which completely destroyed the building and its contents.

In this action which followed the plaintiff alleged that his loss was caused by the negligence of the defendants. Among other things, the defendants alleged contributory negligence in the manner in which the projection room was maintained and also in that the fire was caused by the negli[349]gence of Tesehan, which should he imputed to the plaintiff as his employer.

The court, sitting without a jury, found, among other things, that the fire and the resulting damage were caused solely by the negligence of the defendants and that Tesehan was guilty of no negligence which proximately contributed to the loss and damage. The court also found that the value of the building was $10,000, that the value of the equipment was $10,000, that the loss of profits for the year 1941 was $4,000, and that .the loss of rent for two small rooms in the front of the theatre building was $600. Judgment was entered accordingly and the defendants have appealed.

It is conceded that the evidence is sufficient to support the finding of negligence on the part of Cronkhite. Appellants ’ main contention is that the evidence conclusively shows that Tesehan was also guilty of negligence which proximately caused the fire, and that since he was acting at the time in the course of his employment by the respondent his negligence is chargeable to him and prevents a recovery.

The projection room of this theatre was 18 feet long and 10 feet wide, with an 8-foot ceiling. The projection machines which were being repaired stood at the wall of the room which was nearest the stage and along the opposite wall was a work bench. On this work bench was a rewind machine which was operated by hand. This consisted of two spindles placed about 30 inches apart on the work bench, on one of which the loaded spool was placed while the empty spool was placed on the other. Midway between the two spindles a frosted glass was sunk in the bench with an electric lamp underneath, which was used for patching film. There is no evidence that this patch light was turned on on this occasion. The electric soldering iron had been laid on this bench between this patch light and one of the spindles. As Tesehan was completing the rewinding of the film in order that it might again be run through the projection machine in a further test thereof, the end of the film came into contact with the hot iron in this position. There is evidence that Tesehan had had eight years’ experience as a projectionist; that for some years he had operated an electrical appliance store in the daytime while working in this theatre at- night, that altogether he had had some twenty-seven years’ experience in some form of the electrical business; that he was somewhat familiar with electric soldering irons; and