Richman v. Green

Appellant demands reversal of a judgment in favor of the plaintiff for $9,642 damages for personal injuries allegedly sustained in an elevator accident. Richman sued Green and appellant Fishman as the alleged owners of the building in which the elevator was maintained.

By his answer, Green denied the majority of plaintiff’s allegations; admitted that he was the “record owner” of the building, but alleged that “said property is in truth and in fact owned by Louis Fishman.” Appellant’s answer declared that “N. G. Green is the record owner” and admitted that Fishman “is an owner of the Stimson Building.” At the trial of the cause, it was proved that Green took title to the property without payment of any consideration; that only Fish-man paid the consideration and deemed himself to be sole owner of the building; that Green took title as an accommodation to his father-in-law, Fishman, inasmuch as the latter lacked facility in reading and writing English; that Green was never physically present in the building; nor was he ever a participant in its actual administration, nor collected any income from the building; nor paid any expenses; and was indemnified by appellant against liability to third persons. The sum total of the proof was that Green held bare legal title. The controversy having been submitted, the court made findings and conclusions in favor of respondent but relieved Green of liability and entered judgment against Fishman and the other defendants.

Appellant did not elect to designate the trial court’s decision for inclusion in the record although the judgment recites that the findings and conclusions were in fact filed. Thus, the record must stand as though findings had been waived by the litigants. Findings will be deemed to have been made in favor of respondent on every allegation of his pleadings necessary to support the judgment. (Bekins Van Lines v. Johnson, 21 Cal.2d 135 , 137 [ 130 P.2d 421 ] ; Snyder v. Snyder, 102 Cal.App.2d 489 , 491 [ 227 P.2d 847 ]; Childers v. Childers, 74 Cal.App.2d 56 , 59 [ 168 P.2d 218 ].) Therefore, the trial court impliedly found that Fishman was an “owner” of the building which housed the elevator and that he “maintained, operated and controlled”, the elevator through his “agents, servants and employees . . . acting within the scope of their employment, agency and authority”; and because of “the fault and negligence of the defendants, and each of them, in the maintenance, operation and control of said elevator,” the elevator fell while respondent was a passenger thereon resulting in severe injuries to respondent. No contention is made that the evidence does not support such findings. They are fully substantiated by the record.

Appellant relies upon Johnston v. Long, 30 Cal.2d 54 [ 181 P.2d 645 ], to relieve him of liability. (Note, 21 So.Cal.L.Rev. 199.) That case sets forth the rule that a trustee or executor bears personal responsibility under the doctrine of respondeat superior for torts committed by an employee in the course of administration of an active trust or estate. (Rest., Trusts, § 264, com. (b); cases collected, 3 (pt. 2) Bogert, Trusts and Trustees, 532; 2 Scott on Trusts, § 264; 43 Harv.L.Rev. 1122 , 1124.) The decision suggests but does not hold that the liability of the trustee is the primary liability while that of the trust estate or of the beneficiaries is only to reimburse the trustee where he is free from fault. (Johnston v. Long, supra, p. 62.) Appellant seeks to bring him

The judgment is affirmed.

Pox, J., and Ashburn, J., concurred.