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District Court of Appeal, First District, Division 2, California.


Civ. 11363

Decided: September 30, 1940

Thomas J. Straub, W.H. Spaulding, and John J. Briare, all of San Francisco, for appellant. Francis Gill, John Langer, and Glikbarg, Wolf & Selig, all of San Francisco, for respondents.

The defendant has appealed from a judgment awarding damages to the plaintiffs for injuries suffered in a gas explosion.

The accident happened on September 19, 1938. At that time the City and County of San Francisco was engaged in widening Nineteenth avenue. That avenue extends southly from the southerly line of Golden Gate Park. The project in hand commenced at Lincoln way and extended across Irving, Judah and Kirkham streets to Lawton street. A contract was let to Charles Harney. The contractor operated through Joseph D. Cooney and his assistants. The Pacific Gas and Electric Company maintains pipes and conduits in said avenue and supplies the residences on each side with gas. E. Floyd was division superintendent at the time of the accident. Frank English was superintendent of construction and was present at the scene of the accident directing the employees of the Pacific Gas and Electric Company. Among those employees were Alvin Parkhurst and John McGrath.

The plaintiffs Jentick and Austin, the injured persons, filed an action against Charles Harney, Pacific Gas and Electric Company, and John McGrath, Frank English and Alvin Parkhurst. The charging portion of the complaint was as follows: “On said day Charles Harney and Chas. L. Harney, Inc., a corporation, by their servants, agents and employees, negligently and carelessly operated their machinery and equipment at the place designated, and the defendant Pacific Gas and Electric Company negligently and carelessly constructed, operated, managed and controlled its illuminating gas distributing system, and as a proximate result of said negligence and carelessness on the part of said defendants, and each of them, inflammable gas then and there being conducted and transported through said distributing system escaped and exploded with great force and violence precipitating the plaintiff Joseph Jentick from the sidewalk on said Nineteenth avenue into the pavement thereof, injuring said plaintiff as hereinafter described”. In a separate count the plaintiff Austin set forth a charge similarly worded. The defendants, Pacific Gas and Electric Company, Alvin Parkhurst, John McGrath and Frank English, filed a joint answer denying said allegations pertinent to them. Charles Harney filed a separate answer alleging he personally was the contractor and denying the allegations of negligence of the contractor.

A motion for a directed verdict in favor of John McGrath was granted by the trial court. The jury returned verdicts in favor of Charles Harney, Frank English and Alvin Parkhurst. A verdict was rendered against Pacific Gas and Electric Company. Motions on behalf of said company for a directed verdict, judgment notwithstanding the verdict, and for a new trial were denied. From the judgment entered against that company it appealed. No appeal was taken from the judgment in favor of any of the other defendants.

The contractor commenced his work by scarifying the surface. He followed up that work by using a steam shovel to pick up and load the broken pavement. In the beginning it was planned to finish the west side of the two blocks between Lincoln way and Judah street, then the east side of the next two blocks from Judah to Lawton street, then to return to Lincoln way and proceed southerly doing the east side to Judah street, and lastly the west side from Judah to Lawton street. However, on Friday the 16th of September, 1938, the contractor notified the Pacific Gas and Electric Company that on Monday, the 19th, it would proceed to work on the west side of Nineteenth avenue between Kirkham and Lawton. On the west side of Nineteenth avenue are located the premises known as No. 1563. The house on those premises was supplied by a pipe leading from the east side to the west side of Nineteenth avenue. From the time the contractor commenced his work the employees of the Pacific Gas and Electric Company attended the project. They marked on the surface where pipes rested underneath the surface of the avenue, excavated some pipes, laid other pipes, and made connections or disconnections as necessity required. At about 4 p.m. on Monday afternoon, the scarifying of the surface of the avenue in front of No. 1563 had been completed and the steam shovel proceeded to pick up the broken pavement. While that work was in progress the plaintiffs were standing on the sidewalk in front of No. 1563. In making an attempt to fill the scoop of the shovel the scoop caught and bent the gas pipe serving No. 1563. An examination was immediately made by defendant's agents and no leak or break in the pipe was discovered. However, a few moments later the explosion occurred which caused the injuries. A subsequent examination disclosed the catching and bending of the pipe had foreshortened it and broken it loose from the riser serving No. 1563. From the break in the pipe the gas escaped which caused the explosion.

The defendant claims the plaintiffs contended (1) that defendants Parkhurst and English should have discovered the break in the service pipe and either repaired it or shut the gas off in time to prevent the explosion; (2) that the defendant's employees, on September 19, 1938, should have immediately shut off the gas serving No. 1563 before the contractor started to do his work; and (3) that the defendant's employees should have removed the service pipes serving the residences on the west side of Nineteenth avenue. To those contentions the defendant replies that each contention was put in issue at the time of the trial and that the jury by its verdicts found the said employees of the defendant were not negligent. Continuing, the defendant contends the finding on said issues in favor of said employees exonerated the defendant corporation. A similar question was before the court in Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875, 129 Am.St.Rep. 171. On page 423 of 154 Cal., on page 876 of 97 P., 129 Am.St.Rep. 171 the court said: “The employee's responsibility is primary. He is responsible because he committed the wrongful or negligent act. The employer's responsibility is secondary, in the sense that he has committed no moral wrong, but under the law is held accountable for his agent's conduct. While both may be sued in a single action, a verdict exonerating the agent must necessarily exonerate the principal, since the verdict exonerating the agent is a declaration that he has committed no wrong, and the principal cannot be responsible for the agent if the agent has committed no tort. While no right of contribution exists between joint tort-feasors, whether sued separately or collectively, there exists, in the kind of case here presented, much more than the mere right of contribution. The principal who has been obliged thus to pay for the unauthorized negligent act of his agent resulting in injury may indemnify himself to the full amount against his agent.” Thompson v. Southern Pacific Co., 31 Cal.App. 567, 161 P. 21; Fimple v. Southern Pacific Co., 38 Cal.App. 727, 177 P. 871; and Brobston v. Borough of Darby, 290 Pa. 331, 138 A. 849, 54 A.L.R. 1285, are to the same effect. In the latter case, 290 Pa. 331, 138 A. 849, 54 A.L.R. at page 1290, the supreme court of Pennsylvania has listed a long line of cases each of which supports the rule.

We do not understand that the plaintiffs dispute the rule of law just stated. However they contend there was evidence of the negligence of others for whose acts the defendant was responsible. They claim that Cooney, on Friday, notified Phlueger, one of the assistants of English, that the contractor would proceed with the work in front of No. 1563 on Monday and that Phlueger was negligent in relaying the notice to English. The first answer to that proposition is that there was no evidence of delay. The uncontradicted evidence was to the effect that English received the notice on the same day it was given. They also contend that “Other P.G. & E. employees may have been guilty in ordering the necessary precautions to prevent injury to the public”. But all of those duties were imposed on defendant English and were involved in the issues which were heard and determined by the jury. Again the plaintiffs contend the service pipe above mentioned was negligently installed and maintained. In this connection they rely on the evidence that said pipe was but a few inches beneath the pavement of the street. There was no evidence that such installation or maintenance was negligent. However its position might be, the care and protection of it at the time the work was proceeding rested on the defendant English and his assistants. The plaintiffs further contend the threads of the riser pipe were broken off and the pipe at that point was very rusty. That statement is too broad. The evidence shows the riser pipe was not broken but that the service pipe was broken. Whether the latter pipe was rusty or otherwise, the evidence was that it did not break of its own weight but was broken by the shovel. It will not be contended that the defendant should have installed service pipes or maintained them so they would withstand the force of being jerked by a steam shovel. A most careful examination of the latter contentions of the plaintiffs does not disclose any want of care on the part of any person employed by the defendant except the individuals who were in charge of the job and who were by the verdict of the jury acquitted of negligence. In this connection the plaintiffs cite and rely on Waltemath v. Western States R. Co., 9 Cal.App.2d 583, 50 P.2d 451; Stefanuto v. Market St. Ry., 24 Cal.App.2d 565, 75 P.2d 1089; and Ellis v. Owen Roofing Co., 6 Cal.App.2d 25, 43 P.2d 558. They are not helpful. Each involved the negligent acts of an agent not a party to the action and as to whom the jury had rendered no verdict. No one of those cases purports to modify or overrule the doctrine stated in Bradley v. Rosenthal, supra.

The plaintiffs introduced in evidence section 14 of Ordinance 2201, N.S. (approved March 3, 1913) of the City and County of San Francisco. It is as follows:

“It is hereby made the duty of every person, firm or corporation owning, using, controlling or having an interest in pipes, conduits, ducts or tunnels under the surface of any public street, alley, sidewalk or other public place for supplying or conveying gas, electricity, water, steam, ammonia, or oil in, to or from the City and County of San Francisco, or to or from its inhabitants, or for any other purpose, within ninety (90) days after March 3, 1913, to file in the office of the City Engineer a map or a set of maps, each drawn to a scale to be designated by the City Engineer, which said map or set of maps shall show in detail the exact location, size, description and date of installation, if known, of all mains, laterals, services and service pipes, manholes, handholes, transformer chambers or other appliances installed beneath the surfact of the public streets, alleys, sidewalks or other public places in the City and County of San Francisco, belonging to, used by or under the control of such person, firm or corporation, or in which such person, firm or corporation has any interest. It shall also be the duty of every such person, firm or corporation to file, within fifteen (15) days after the first day of January of each and every year, a corrected map or set of maps each drawn to scale to be designated by the City Engineer showing the complete installation of all such pipes and other appliances, including all installations made during the previous year, to and including the last day of each year. Each such map shall be accompanied by an affidavit endorsed thereon, subscribed and sworn to by such person, or by a member of such firm or by the President or Secretary of such corporation, to the effect that the same correctly exhibits the details required by this Article to be shown thereon. *

“It shall be unlawful for any person, firm or corporation to fail, refuse, or neglect to file any map or set of maps at the time, and in all respects as required by this section.” (Italics ours.) The trial court read said section to the jury and instructed the jury, in effect, that a violation of its terms, if there was a violation, would be negligence per se. The defendant contends it did not violate the ordinance and that if it did such violation was not a proximate cause of the accident. Both contentions we think must be sustained. As to when any gas pipe was installed in Nineteenth avenue the record is silent. The first part of section 14 of the ordinance applies to pipes installed prior to the enactment of the ordinance, March 3, 1913. By its express terms it applies to the location of pipes, “if known”. There was no evidence that the pipes were originally installed by the defendant, by a predecessor in interest, or by whom. There was no evidence that the vertical location of any one of the pipes was known. English stated to Cooney that the location of the depth of the pipes was not known. The second part of the section is addressed to pipes located subsequent to March 3, 1913. There is no evidence that the pipes in Nineteenth avenue were installed subsequent to that date. There is evidence that whenever an application is filed to excavate or to install a service, a plat and location of that is filed in one of the departments There is no evidence of the contents of such plats, or whether they complied with section 14, supra, or otherwise. Furthermore, by the terms of said section the defendant was required to file in the office of the city engineer certain maps. But said maps were to be drawn to scale. That scale was to be designated by the city engineer. Until it was designated no map in conformance therewith could be prepared and filed. The plaintiff asserts the defendant could have drawn the maps to any scale. That statement is too broad. Maps not substantially drawn to a scale designated by the city engineer would not have been a compliance with the provisions of the ordinance. The ordinance is entirely clear and there is no room for construction. Davis v. Hart, 123 Cal. 384, 386, 387, 55 P. 1060. Furthermore, “It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every section, clause, word or part of the act.” 25 R.C.L. 1004, “Statutes”, sec. 246. The general purport of a statute being declared, the details provided for its accomplishment will be regarded as necessary incidents. Estate of Wellings, 192 Cal. 506, 519, 221 P. 628. Applying the foregoing rules it is apparent that the city engineer not having designated “the scale of said maps”, the contingency on which the defendant was required to file said maps has never happened and the defendant has incurred no obligation thereunder. 59 C.J. 1156, “Statutes”, sec. 688, subd. 10; State v. Liedtke, 9 Neb. 490, 4 N.W. 75, 80; Barto v. Himrod, 8 N.Y. 483, 489, 59 Am.Dec. 506; Ex parte Wall, 48 Cal. 279, 314, 315, 17 Am.Rep. 425; The Aurora v. United States, 7 Cranch, 382, 3 L.Ed. 378; Wheeler v. Herbert, 152 Cal. 224, 234, 92 P. 353; Chicago v. Stratton, 162 Ill. 494, 44 N.E. 853, 35 L.R.A. 84, 53 Am.St.Rep. 325, 329. Hence it does not appear that the defendant violated any of the provisions of said ordinance. There is no evidence that at any time the contractor, either personally or by agent, applied to the city engineer or any other officer or employee in the city government to be allowed to inspect a map or to obtain a copy of a map of the location of the pipes in Nineteenth avenue. It follows the filing or non-filing of said maps was not a proximate cause of the accident. Rauch v. Southern California Gas Co., 96 Cal.App. 250, 273 P. 1111, states nothing to the contrary. The facts in that case were materially different.

However the plaintiffs contend the exoneration of Parkhurst and English did not exonerate the Pacific Gas and Electric Company. They base that contention on an isolated remark of the trial court. That remark occurred as follows. After the testimony was taken and the arguments had closed, the trial court gave a set of instructions that is full and complete in all respects. The jury retired to deliberate on its verdict. In about an hour it returned into court presenting certain verdicts. The trial court pointed out that the verdicts were inconsistent. In doing so it gave an instruction that is full and complete, setting forth the rule hereinabove mentioned regarding the effect of exonerating the agents of the defendant Pacific Gas and Electric Company. That instruction is not questioned. In a very few minutes a colloquy followed between court and counsel. That colloquy was as follows:

“Mr. Briare (attorney for defendant): Now, before the jury is sent back, I would like to ask the Court to instruct the jury that it is not necessary to find a verdict against the individuals Parkhurst and English in order to render a verdict against the defendant Pacific Gas and Electric Company.

“Mr. Selig: I think they have been so instructed.

“Mr. Briare: Well, I want that particular instruction given, if the Court please.

“The Court: I will so instruct the jury at the request of Mr. Briare, that they need not return a verdict against either of the personal defendants in order to return a verdict against the Pacific Gas and Electric Company. You have no objection to that?

“Mr. Selig: Yes, I have an objection to it; I take an exception.

“The Court: All right, take the jury out”.

The plaintiffs now contend the last remark “fails to take into consideration the doctrine of exoneration of a principal by exoneration of an agent, and second, that if such instruction had been requested by respondents, the giving of it might have constituted error, but the request for the instruction having come from the party to be bound thereby, it is submitted that the giving of this instruction acts to estop appellant from now claiming that the jury, having exonerated the defendants Parkhurst and English, employees of appellant corporation, such exoneration operates to exonerate appellant corporation.” That contention is not well founded. In the first place the record does not show that defendant asked the trial court to make the statement in the words used by the trial court. In the second place said statement did not conflict with the full and complete instructions which the trial court had just given. The trial court had instructed the jury, “* not to select a single instruction, or a portion of an instruction alone, but to consider all of the instructions in determining any issue *.” We must assume the jury followed that instruction. In doing so it certainly was not confused in hearing and applying the instructions. They did not conflict. Miner v. Dabney–Johnson Oil Corp., 219 Cal. 580, 583, 28 P.2d 23. One was merely more complete than the other. As so construed we think it is clear the remark complained of did not in any manner affect the correct instruction which the trial court had given as to the effect of exonerating Parkhurst and English.

It follows that the trial court should have granted the motion of the defendant for judgment in its favor notwithstanding the verdict.

The judgment is reversed and judgment is ordered in favor of the defendant notwithstanding the verdict.


I concur: NOURSE, P.J.