JOHNSON v. FONTANA COUNTY FIRE PROTECTION DIST

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District Court of Appeal, Fourth District, California.

JOHNSON v. FONTANA COUNTY FIRE PROTECTION DIST. et al.*

Civ. 2175

Decided: February 08, 1939

A.J. Getz, of Los Angeles, for appellant. Jerome B. Kavanaugh and Swing & Swing, all of San Bernardino, for respondents.

This is an appeal from a judgment denying petitioner's application for a writ of mandamus requiring the respondent board of supervisors, as the governing body of the respondent Fontana County Fire Protection District, to levy an assessment or tax upon the taxable property within said fire protection district sufficient to pay a judgment obtained against that district by the petitioner. The proceedings are also directed against the county treasurer and the county auditor whose duties, if any, are dependent upon prior action by the board of supervisors. For convenience, this fire protection district will hereinafter be referred to as the district.

At the hearing the parties stipulated as to the facts from which it appears that on April 16, 1928, the district was organized under the act of 1923 (Stats.1923, p. 431), and on April 20, 1928, the supervisors appointed five commissioners for the district.

It further appears from the stipulated facts that on October 3, 1935, the petitioner, as plaintiff, commenced an action in the superior court of San Bernardino county against “George Calkins, the Fontana County Fire Protection District, a body politic, the Fontana Union Water Company, a corporation, and the county of San Bernardino, California, a body politic and corporate”. The complaint alleged, among other things, that the district was and is a body politic and a district organized and existing under the act of May 23, 1923, as amended; that the plaintiff was injured on June 8, 1935, in a collision between an automobile driven by him and another automobile driven by George Calkins; that the collision occurred as the result of the negligent manner in which George Calkins drove his automobile; that at the time of the collision George Calkins was an officer, agent and employee of the district and was then and there driving his automobile within the scope of his agency and employment; and that the plaintiff had filed a written and verified claim with the clerk of the board of supervisors and the secretary of the board of fire commissioners of the district The district filed an answer in said action admitting that it was and is a body politic and a district organized and existing pursuant to the act of May 23, 1923; that the county held title to all property of the district; that the supervisors were the governing body of the district and controlled the district's funds; that a claim had been filed and rejected; and that “George Calkins, at the time and place mentioned in said complaint, was an agent and employee of this defendant, to wit, a fireman, employed by this defendant to aid in extinguishing and controlling fires which occur within said district, and admits that at such time the said George Calkins was engaged in the performance of his duties as such fireman”. In separate answers it was alleged that the plaintiff was guilty of contributory negligence, that George Calkins was an employee of the district, whose duty it was to attend fires, and that the collision occurred while he was in the performance of his duty and while he was acting within the scope of his employment as a fireman.

It was further stipulated that before the action came to trial it was dismissed as against the county of San Bernardino; that a judgment of nonsuit was entered in favor of the defendant Fontana Union Water Company; that the defendants George Calkins and the district appeared at the trial; that a judgment for $3500 and costs was entered in favor of the plaintiff and against George Calkins and the district; that no appeal was taken and the judgment has become final; that “said George Calkins was, at the time of said collision, acting as a volunteer fireman for said Fontana County Fire Protection District, by appointment of one Earl Reeves, who was then acting in the capacity of Fire Chief of the Fontana Fire Department; that said Earl Reeves was acting as such Fire Chief under appointment by the aforementioned Fire Commissioners”; and that a written claim had been filed and rejected.

In their answer to the petition for a writ of mandamus the respondents alleged that the judgment against the district obtained by the petitioner is void for the reason that the district is not an entity against which such a judgment can be rendered; that there is no provision in law for the rendition of such a judgment against the district; that there is no provision in law for collecting such a judgment against the district; that the district is not a body politic or a district which can be sued or held liable for the negligence of a volunteer fireman while going to a fire within the district; that there is no provision in law authorizing or empowering the respondents to do or perform any of the acts requested of them; and that another action was pending involving the question of whether or not said George Calkins was covered by a certain insurance policy at the time of the collision.

After a hearing the court found in accordance with the stipulated facts with respect to the formation of the district, the appointment of fire commissioners, and the entry of the judgment in favor of the petitioner and against the district. It was then found that the said George Calkins was never appointed to the position of volunteer fireman by the board of supervisors; that the board of supervisors had never taken any action authorizing the formation of a volunteer fire department within or for the district; that at the time of the accident in question the said George Calkins was purporting to act as a volunteer fireman under appointment of one Earl Reeves, who was then acting in the capacity of fire chief of the Fontana Volunteer Fire Department; and that said Earl Reeves was never appointed to such position by the board of supervisors nor was said Earl Reeves nor said George Calkins ever employed by the board of supervisors, nor was their employment authorized by the board of supervisors. The court further found that the district is not a body politic nor a district against which any suit may be maintained or prosecuted, that the district has no legal entity and no authority to employ agents or servants nor to incur any liability directly or indirectly, that no provision has been made in law or otherwise for the payment of any judgment rendered against such district, and that the board of supervisors has no authority and is not authorized to levy any taxes on any of the property within the district for the payment of the judgment obtained by the petitioner. Judgment was entered denying the petition and this appeal followed.

As originally adopted, section 5 of the act under which this district was formed (Stats.1923, pp. 431, 432) provided that the board of supervisors of any county wherein such a district should be established should be the governing body of such district with power to make rules and regulations for the administration of the district and for furnishing fire protection thereto, to appoint agents and employees for such district sufficient to maintain and operate the property acquired for the purposes of the district, to acquire real or personal property for the purposes of the district, and to perform all other acts necessary or proper to accomplish the purposes of the act. Section 7 provided that the board of supervisors should levy taxes each year upon the real property within the district sufficient to defray the cost of maintenance of the district and to meet other expenditures authorized by the act. In 1925, section 5 was amended (St.1925, p. 671) by adding a provision that the board of supervisors might appoint five commissioners as its agents to manage the affairs of the district and to exercise any or all of the powers mentioned in section 5, said commissioners to hold office at the pleasure of the board. Section 7 was amended (St.1925, p. 672) by providing that in case such commissioners should be appointed they should recommend to the supervisors the amount of taxes to be levied. In 1931, by amendment (St.1931, p. 1601, § 5), the provision permitting the supervisors to appoint five commissioners as its agents was stricken out.

The respondent contends that nothing in the act, pursuant to which the district was formed, authorized the supervisors to levy a tax for the purpose of paying such a judgment as the one here in question. That act, however, makes the board of supervisors the governing body of such a district with the right to appoint agents and employees to carry out the purposes of the district, to acquire real and personal property needful for such purposes, and to perform all other acts necessary or proper to accomplish the purposes of the act. The board of supervisors are also authorized to levy a tax sufficient to defray the cost of maintenance of the district. One of the costs of maintenance would be a judgment of this nature, arising from the manner in which the operations of the district are carried on, if liability therefor is imposed upon the district by statute. Section 1714 1/212 of the Civil Code, now section 400 of the Vehicle Code, imposed liability on a “district established by law” for negligence in the operation of any motor vehicle owned by the district and for any injury occurring as the result of the negligent operation of any other motor vehicle by any officer, agent or employee of the district when acting within the scope of his office, agency or employment, and further provides that any such injured person may sue any “district established by law”. If the district here in question is a district established by law, within the meaning of this statute, it is liable for the negligence of its agents and employees, the amount for which the district is thus liable is a part of the cost of maintenance of the district, and the authority and duty of the supervisors to levy a tax sufficient to cover the same sufficiently appears from the act under which the district was created and the statute imposing liability.

The next question presented is whether this district is one established by law within the meaning of the statute. The respondent contends that such a district is not an entity which can be sued because it has no autonomy, performs no functions in its own name, owns no property, has no money, and as a district pays no part of the cost or expenses incurred for fire protection. It is argued that the formation of such a district is simply a means of designating the exterior boundaries of property that requires fire protection and which will be assessed for that purpose, that the board of supervisors has complete control, the owners of property within the district have no voice as to how the district shall be managed or how fire protection shall be provided, and that such district is analogous to a street improvement a district created only to bear the burden of the cost of street improvements but which has no separate entity and which cannot be sued.

The act under which the district was organized provides that such a district can be established and dissolved only upon the vote of the people of the district. While the supervisors are the governing board of the district and hold title to its property they act in a representative capacity and hold this property for the use and benefit of the district. While they handle the money of the district they collect and pay out this money for the benefit of the district and in carrying out its purposes. There is not much similarity between such a district and an assessment district which carries on no continuous function and exists solely for the purpose of paying for a public improvement. In a very real sense the district is not only performing functions but performing a well recognized governmental function in furnishing protection against fire. The very purposes for which the district is organized call for a continuing exercise of this governmental function which involves the use of property, including automobiles to be operated upon the public highways. The district is not only established pursuant to law but the purposes of its establishment necessarily contemplate the use of necessary equipment and the carrying out of these operations requires, under present conditions, the use of automobiles. Negligence in the use of automobiles by various governmental agencies led to the adoption of section 1714 1/212 of the Civil Code, the terms of which are now found in section 400 of the Vehicle Code. There is no essential difference between the operation of an automobile by the agent or employee of a fire protection district and the operation of such a vehicle by an agent or employee of one of the other governmental agencies named in the statute. The statute was aimed at a condition existing, and which might exist, on the highways and the language used, “district established by law”, is broad enough to include the district here in question. The legislature must have intended to impose liability for the negligence of its agents in the use of automobiles on such a district as this which is created pursuant to a statute, and which uses agents and automobiles in the continuous performance of a governmental function.

In an amended answer the respondent supervisors alleged that George Calkins was not an agent or employee of the district and the court so found. The appellant contends that the court's finding and conclusion in that regard are erroneous since the fact that Calkins was an agent and employee of the district was judicially determined in the damage action, to which the district was a party, and that such previous determination of that fact is res adjudicata in this proceeding. It is respondent's position that the implied finding of the jury in the former action, that Calkins was an employee of the district, is overcome by the court's finding in this proceeding and that the question of whether or not Calkins was an agent or employee of the district was open for consideration in this proceeding because of the above-mentioned stipulation to the effect that Calkins was at the time acting as volunteer fireman under appointment by one Earl Reeves, who was acting as fire chief under appointment by the five commissioners. If the question was an open one it may be conceded that the stipulated facts with respect to the appointment of Calkins support the court's finding. This is especially true since the power of the supervisors to delegate certain of their duties to appointed fire commissioners was probably ended in 1931, when the provision authorizing the appointment of commissioners and the delegation of duties to them was stricken from the statute. The question, however, was not an open one merely because of the stipulation above referred to. The parties simply stipulated as to certain facts relied upon by them respectively, and it was in no way stipulated that any particular fact should be controlling in the face of other facts which were also stipulated. Whether or not the previous judgment, with its implied finding of agency, was controlling here must depend upon general rules of law applicable to that question.

A former adjudication between the same parties may be either a final determination of the rights of the parties or may be an adjudication of certain questions of fact which have been put in issue and decided. People v. Bailey, 30 Cal.App. 581, 158 P. 1036. A judgment operates as an estoppel to prevent the parties thereto or their privies from contending to the contrary as to a matter of fact which was found against them in arriving at the judgment. Koehler v. Holt Mfg. Co., 146 Cal. 335, 80 P. 73; Baker v. Eilers Music Co., 175 Cal. 657, 166 P. 1008; Gage Canal Co. v. East Riverside Water Co., 180 Cal. 204, 180 P. 332.

In the matter now before us it appears that the district was made a defendant in the previous damage action, in which it was alleged that Calkins was an agent and employee of the district. The district admitted this fact in its answer and the judgment against the district, which followed, could only have been based upon that fact. While the supervisors, as the governing board of the district, were not made parties to the former action, the district appeared and defended the action, specifically admitting that Calkins was at the time an agent of the district and acting within the scope of his employment. We think it may not be successfully contended that the real parties in interest were not the same in that action and in the present proceeding. While the supervisors are made parties to this proceeding it is fully apparent that they are parties thereto only in their representative capacity, as the governing board of the district. In Price v. Sixth District Agricultural Ass'n, 201 Cal. 502, 258 P. 387, 392, the court said:

“Appellants make the point that, inasmuch as the former suits were in reality County of Los Angeles v. [Dodge], Chairman of the Board of Supervisors and City of Los Angeles v. [Snyder], Mayor [51 Cal.App. 492, 197 P. 403], the rule should not apply. If, however, fraud and collusion be absent, the public interest may be as well represented by the mayor or chairman of the board of supervisors as by any set of taxpayers. For example, the fact that a man has been elected mayor of the city is no reason to suspect that he will not properly represent the public interest, and when such officer defends an action relating to a public contract, no reason can be found why he may not be a suitable, if not the most suitable, representative of the public interest in the matter. This very question was raised in State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706. There the estoppel by judgment was made to rest upon the case of State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 360, which was a suit by the Attorney General applying for a writ of certiorari against the Secretary of State, and in this connection the court, in disposing of the contention that the taxpayer was not a party to the suit, said: ‘Appellant urges, however, that he is not bound by any of the facts adjudged in that proceeding, for the reason that he was not a party thereto, and that the record of that proceeding nowhere discloses any connection of his with that case. It is apparent, however, that plaintiff, acting as he does in a representative capacity, is, constructively at least, a party to any action or proceeding in which the same interest was plaintiff. * Standing as he does as representative in a matter of general interest to all of the citizens of Ward county, he is concluded with reference to any state of fact which was or might have been adjudged against that interest in a former action in which the same interest was plaintiff or defendant.’ ”

In Servente v. Murray, 10 Cal.App.2d 355, 52 P.2d 270, 272, it is said: “The identity of the issue and the determination thereof is of more importance than the identity of the parties named. If they hold the same rights of interest as principals, agents, or representatives and are in fact adverse parties, or their interests are adverse in the two proceedings, the identity of the parties is sufficient. In the present case the identity of the petitioner is identical with the petitioner in the prior proceeding. In the first action there was an adjudication against the members of the pension board of the city of Alameda consisting of the city manager, mayor, and treasurer ex officio. The present action was instituted against the mayor, city manager, treasurer, auditor, and chief of police of the same city. The respondent officers in each case were the agents of the municipality and equally bound by the original judgment. * In each proceeding the respondents were merely the representatives of the real adverse party, the municipality. Special circumstances may arise making this rule inapplicable, but generally a political subdivision and the officers, boards, commissions, agents, and representatives thereof form but a single entity. Price v. Sixth District Agricultural Ass'n, supra, 201 Cal. 502, at page 513, 258 P. 387; Davidson v. Baldwin, 2 Cal.App. 733, 84 P. 238; Bernhard v. Wall, 184 Cal. 612, 194 P. 1040; People [ex rel. Bryant] v. Holladay, 93 Cal. 241, 29 P. 54, 27 Am.St.Rep. 186.”

We think these principles apply here and that the previous judgment was controlling on the question of whether or not Calkins was an agent of the district, and that such a question was not open to consideration in the mandamus proceeding. The views already expressed, if correct, lead inevitably to the conclusion that the judgment obtained by the petitioner is binding upon the district and that it is the duty of the supervisors, as the governing board of the district, in fixing a tax levy upon the property within the district, to make provision for the payment of that obligation.

The judgment is reversed with instructions to the trial court to issue a writ in accordance with the prayer of the petition and the views herein expressed.

BARNARD, Presiding Justice.

We concur: MARKS, J.; GRIFFIN, J.