Keena

Plaintiff appeals from a judgment for defendant in an action for personal injuries arising out of a fall from a chair on which plaintiff sat while conducting a business transaction in defendant’s office.

The sole issue presented on this appeal is whether the trial court committed prejudicial error in failing to give plaintiff’s proffered instruction on the doctrine of res ipsa loquitur.

Defendant made certain repairs to plaintiff’s automobile, and the parties entered defendant’s office for the purpose of drawing up the repair bill. Plaintiff sat on a swivel chair in *781 front of defendant’s desk while the defendant computed the bill from a seat behind the desk. Plaintiff testified that he leaned forward for a period of five to ten minutes, watching the computation; that when defendant commenced to use the adding machine plaintiff leaned back in the chair; that as he did so he fell backward with the chair in one continuous motion to the floor; and that he did not hear the sound of breaking wood prior to striking the floor.

Defendant also heard no sounds prior to the chair striking the floor. He did not observe the fall as he was looking elsewhere at that time. He testified that…

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Molinari in the opinion prepared by him for the District Court of Appeal in Keena v. Scales (Cal.App.) 34 Cal.Rptr. 625 .