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District Court of Appeal, Fourth District, California.


Civ. 3895.

Decided: February 02, 1950

Forgy, Reinhaus & Forgy, Santa Ana, for appellants. Harvey, Rimel & Johnston, Santa Ana, for respondent.

Defendants appeal from a judgment based upon a jury verdict in favor of plaintiff for $10,000. Plaintiff's complaint seeks damages for personal injuries resulting to her from a fall into an opening termed by the plaintiff a ‘vent shaft’ of the Edgar Hotel, in Santa Ana, which hotel was owned and operated by defendant Gladys Peterson Brickel. Defendant Charles F. Brickel, her husband, was manager. In the first claimed cause of action or count plaintiff alleges general negligence of defendants, i. e., that there was no sign or warning of the dangerous or hazardous condition of the area on the roof; that there were no lights; that a mattress was placed on a parapet surrounding a vent shaft by defendants; that judging from ‘the height of the parapet’ said mattress appeared from the doorway to be resting on a solid foundation; that this condition constituted a dangerous and hazardous condition of which defendants were aware; and as a result of which plaintiff sat upon it and fell down the shaft. In a claimed second count or cause of action she alleges that the opening, termed by her a ‘vent shaft’, was maintained contrary to the provisions of section 16827 of the Health and Safety Code in this, that it was surrounded by a parapet less than 30 inches in height. The hotel was built in 1913–1914, as a three-story building, with a penthouse on the roof. The various photographs which were introduced in evidence show the roof, penthouse, the shaft, and the parapet surrounding the shaft. In the afternoon of August 25, 1946, plaintiff, after visiting two bars, went with Marine Sergeant Robinson and Marine Sergeant Stevens, whom she had met at a bar, to one of the rooms in the penthouse of the Edgar Hotel. Plaintiff stepped out of the hallway of the penthouse onto the roof of the building in company with Robinson. After walking around the roof, she came to the opening on the roof, termed a vent shaft. Over the end of this shaft a mattress had been partially stretched. The parapet at that point was 27 inches high. The shaft was 68 inches wide. The mattress was 72 inches long. As plaintiff approached the shaft she stated: ‘Here is a sack’ (Marine's term for a bed), ‘I think I will sit on it.’ She sat on it and fell two stories and sustained serious injuries. The so-called ‘vent shaft’, throughout the trial, was interchangeably used with the words ‘light well’. It was approximately 30 feet long and was surrounded by a wall or parapet which varied in height, due to the slope of the roof. At its highest point it extended about 42 inches above the roof. The evidence shows that the plaintiff, accompanied by the two sergeants, went to the hotel about 8 o'clock in the evening, obtained the key from the lady on duty, and went upstairs. The men had registered at the hotel that afternoon and were given separate rooms in the penthouse. Their testimony is that the lights in the hallway were not bright and they saw no signs on the walls as they came up the stairway. All had one drink apiece in the sergeant's room, which they did not finish. There were no lights on the roof except that from the street lights and a miniature golf course across the street. Sergeant Robinson stated that from where he was standing on the roof the object, which he later discovered was a vent shaft, ‘looked like a flat top or another little roof like a little house’; that no lights could be seen coming from the shaft and the mattress appeared to be lying flat on a little roof; that a little light came from the hallway; that the doorway of the penthouse onto the roof was wide open and it was only necessary to step over a little ledge to step upon the roof. He stated that although they had had several drinks, none of the party were intoxicated. Three police officers who investigated the accident testified that they saw no signs of any kind relating to keeping off of the roof, although defendants produced signs which they claim were posted in conspicuous places leading to the roof. They also introduced in evidence ‘Hotel Rules' cards, which were on display in the several rooms, at the bottom of which there was typewritten: ‘Stay off roof * * * No guests or persons allowed on roof of hotel.’

Defendant Charles F. Brickel testified that as manager of the hotel he took the mattress out onto the roof prior to this occasion but that he placed it upon a springs of an old bed that was near by and that he had no knowledge of it being placed in the position which it was claimed to have been found by the plaintiff. After the court instructed the jury, it returned a verdict in favor of plaintiff, as indicated. No question is raised as to the amount of the verdict being supported by the evidence of the injuries received.

The first point raised on appeal and which appears to be most serious, surrounds the giving of two instructions requested by plaintiff. Instruction 15 reads: ‘Health and Safety Code, 16827. Parapet or rail at roof line. ‘A parapet or rail at least thirty inches in height shall be constructed at the roof line of every vent shaft in an apartment house or hotel so that no person may walk or fall into the shaft.’ Conduct which is in violation of Section 16827 just read to you constitutes negligence per se.' And Instruction No. 30 provides: ‘If you find that defendant Gladys Peterson Brickel violated the statute requiring the parapet around the light well to be of minimum height, her negligence is thereby established, but before plaintiff may recover you must further find that the negligence of such defendant was the proximate cause of plaintiff's injury and that plaintiff was not guilty of contributory negligence and that plaintiff was an invitee (or licensee) as to the part of the premises where she was injured.’

It is the contention of the defendants that section 16827, supra, is a provision adopted after the erection of the Edgar Hotel and that it appears that it is a provision which was not intended to apply retroactively to the shaft in that hotel. Defendants do not concede that the shaft is a ‘vent shaft’, within the meaning of section 15029 of the Health and Safety Code. They contend that such a shaft as here described was a ‘light well’ and therefore section 16827 has no application to a light well; that since the hotel was erected in 1914, it was then lawful to furnish light and air by means of an open shaft; that there was no requirement that it be surrounded by a parapet 30 inches in height; and that this requirement was first enacted by Stats. 1923, p. 819, chap. 386, sec. 56. In support of this contention defendants cite Watwood v. Fosdick, 212 Cal. 84, 297 P. 881, and Lee v. Dawson, 44 Cal.App.2d 362, 112 P.2d 683.

Defendants also point out that the State Housing Act now in force [Division XIII Health and Safety Code] contains provisions which make it clear that a requirement of a parapet around a vent shaft is not retroactive, citing sections 15154, 16200 to 16204, 16222, and sections 17485 and 17533 thereof. Defendants' conclusion is that from these statutes, this hotel building, which was erected prior to 1923, was not required, under the Health and Safety Code, to have any vent shaft whatsoever, and that there is no requirement therein that a parapet be erected around this type of shaft; that the court went beyond the express language of the statute and invaded the province of the jury when it advised the jury that the maintenance of the property in a certain condition on the date of the accident was negligence per se; and that instructions 15 and 30 were not only erroneous but by their very nature were prejudicial.

It is respondent's answer to this contention that the legislative history and statutory wording show that some provisions of successive housing acts apply to existing structures, others to subsequent structures, and still others to all structures, citing Statutes 1913, p. 1429; and Statutes 1917, pp. 1474–1475, chap. 738, sec. 3; that in order to determine whether a certain provision of the code or of the 1923 act applies to buildings erected before 1923, it is necessary to consider the language used, the nature of the act required of the hotel owner, and the evil to be remedied; that the act required the hotel owner, under the section in qeustion, to provide a parapet wall or rail so that no person would walk or fall into such shaft, and to erect it at the height indicated; that compliance therewith would only require a minor addition and would not have to be a structural part of the building; that the law is in the interests of public safety and, as such, should be liberally construed to cope with the hazard to be remedied. In support of this argument plaintiff cites Sheyer v. Lowell, 134 Cal. 357, 66 P. 307; Marr v. Whistler, 49 Cal.App. 364, 193 P. 600; In the Matter of Stoltenberg, 165 Cal. 789, 134 P. 971; and In the Matter of Stoltenberg, 21 Cal.App. 722, 132 P. 841.

The term ‘vent shaft’, as used in the Act, sec. 15029, is defined as ‘one used solely to ventilate or light a water-closet compartment or bath room’. The word ‘shaft’ is also there defined to mean ‘any shaft used for air, light, or ventilation, or for an elevator or dumb-waiter’.

Throughout the trial the shaft herein mentioned, whatever cognomen should be attached to it, was described by all parties as either a ‘vent shaft’ or a ‘light well’ and the case was apparently tried on the theory that it was a shaft used not only for ventilation but for light as well.

Section 16827 of the Health and Safety Code, requiring a ‘vent shaft’ to be surrounded by a parapet at least thirty inches in height from the floor of the roof, applies only to a ‘vent shaft’, as defined in section 15029 of the Health and Safety Code. No provision of the law has been cited requiring such a parapet of such height to surround a ‘light well’ or ‘shaft’, as defined in section 15029, supra.

In giving the instruction complained of, the definition of a ‘vent shaft’, as defined in sec. 15029, supra, was not given, and the jury had no opportunity to determine whether the shaft here involved was or was not a ‘vent shaft’ within the meaning of that section. The physical surroundings and photographs conclusively show that the ‘shaft’ was not ‘one used solely to ventilate or light a water-closet compartment or bath room.’ Therefore, under the strict interpretation of the section, that section had no application to the facts here presented and it was error to instruct the jury that ‘conduct which is in violation of section 16827 just read to you constitutes negligence per se’, and ‘If you find that defendant Gladys Peterson Brickel violated the statute requiring the parapet around the light well to be of minimum height, her negligence is thereby established * * *.’

In support of the instructions, as given, plaintiff satisfies herself with the argument that since defendants, by their failure to deny the allegation that plaintiff fell into a ‘vent shaft’, and since the case was tried upon that theory, the defendants thereby admitted it was a ‘vent shaft’ and were bound by this admission. This does not answer the point. The defendants denied generally all allegations contained in the claimed second count pertaining to the ‘vent shaft’ and denied that defendants violated any law in reference thereto. This would not amount to an admission that the shaft under consideration was a ‘vent shaft’ coming within the provisions of section 16827, supra, particularly where the undisputed evidence shows that it did not. The giving of the instruction was erroneous.

The argument presented in defense of the judgment is that the jury was not prejudiced by the giving of the instructions, even if erroneous, since the evidence fully justified the verdict under the first count alleging general negligence; and because the verdict was a general one it was ‘immaterial that there may have been error pertaining to one cause of action’, and cite such cases as In re Estate of Hellier, 169 Cal. 77, 145 P. 1008; Union Collection Co. v. Oliver, 23 Cal.App. 318, 137 P. 1082; Asamen v. Thompson, 55 Cal.App.2d 661, 672, 131 P.2d 841; Shields v. Oxnard Harbor District, 46 Cal.App.2d 477, 116 P.2d 121; Hume v. Fresno Irrigation District, 21 Cal.App.2d 348, 69 P.2d 483; Big Three Min. & Mill. Co. v. Hamilton, 157 Cal. 130, 141, 107 P. 301, 137 Am.St.Rep. 118; Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221, 282 P. 1009; Oberholzer v. Hubbell, 36 Cal.App. 16, 19, 171 P. 436; Hopping v. City of Redwood City, 14 Cal.App.2d 360, 362, 58 P.2d 379; Mitchell v. Towne, 31 Cal.App.2d 259, 261, 87 P.2d 908; Hoffart v. Southern Pacific Co., 33 Cal.App.2d 591, 602, 92 P.2d 436; and Leoni v. Delany, 83 Cal.App.2d 303, 309, 188 P. 765, 189 P.2d 517.

Defendants cite Panos v. Great Western Packing Co., 21 Cal.2d 636, 134 P.2d 242, in support of their argument that but one cause of action is stated in the complaint, although attempted to be set forth in two separate counts.

We have examined the cases relied upon by respondent in support of her argument. They set forth the rule that a general verdict imports findings in favor of the prevailing party on all material issues and that if there is substantial evidence to support a verdict on one court, which is unaffected by error in an instruction given as to another count, a judgment on the count thus unaffected by the error will not be reversed. The factual situations in the cases cited are distinguishable.

In Kyle v. Craig, 125 Cal. 107, 57 P. 791, it was held that the fact that a cause of action is set up in separate counts, each numbered as a separate paragraph, all the counts may be considered together as a narration of the facts relied upon in recovering, and in Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L.R.A. 626, 56 Am.St.Rep. 97, it was held that where but one cause of action is stated, the mistaken designation of a portion of a complaint as a separate cause of action should be disregarded as an error which will not affect the substantial rights of the parties.

It is the rule that a party may set forth the same cause of action in varied and inconsistent counts and may not be compelled to elect between them, and negligence may be charged in separate counts as occurring in as many ways as plaintiff believes his evidence will show. Froeming v. Stockton Electric R. Co., 171 Cal. 401, 153 P. 712, Ann.Cas. 1918B, 408; 21 Cal.Jur. p. 64, sec. 39; 19 Cal.Jur. p. 675, sec. 99. However, in the instant case, where the question of the height of the parapet was brought into issue under the first count and also upon the second count, it cannot be said that the determination of the jury on the issues presented under the first count were unaffected by the instruction given. The jury was told, without any distinction as between the first and second counts, that if it found that defendant violated the statute, as read, her negligence ‘is thereby established’. It was problematical whether the jury determined the issues presented, on the claim of general negligence, as indicated by the allegations in the claimed first cause of action, or determined it solely upon the erroneous instruction given. The fact that the jury was taken to the scene and had the opportunity to see and measure for themselves the parapet previously constructed, adds to the confusion and uncertainty. We conclude that prejudicial error resulted. Fisher v. Los Angeles Pacific Co., 21 Cal.App. 677, 132 P. 767.

Since we have held that it was error to give the instructions complained of in reference to the parapet, it becomes unnecessary to determine whether or not section 16827, supra, applied to buildings erected prior to the date of its enactment.

The next claim is that the court erred in permitting the jury to view the premises where the accident occurred. Between the time the accident took place in 1946, and the time of trial in 1948, defendants had placed additional guard rails above the parapet then existing, which were 2 1/212 to 3 feet in height. During the trial, plaintiff, in the presence of the jury, requested that the jury inspect the premises. Counsel for defendants objected by reason of the fact that changes had been made. Subsequent discussion was had thereon out of the hearing of the jury. By stipulation the trial judge viewed the premises, returned to court and announced that he was inclined to allow the jury also to view them. A stipulation was entered into that at the scene, the court may instruct the jury to disregard the change, reserving to the defendants all general objections. The jury was taken to the scene of the accident and instructed that ‘The fact that any changes have been made does not mean that there is any intimation upon the part of the defendants or any of them, that the condition was dangerous at the time of the accident, nor to be considered by you for any purpose whatsoever * * *.’

Section 610 of the Code of Civil Procedure provides that when, in the opinion of the court, it is proper for the jury to have a view of the place in which any material facts occur, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While changes in the condition of the property might render the view of the jury less satisfactory in applying the testimony, such change could not affect the discretionary power of the court to allow such view. Osgood v. City of Chicago, 154 Ill. 194, 41 N.E. 40; Spurrier Lumber Co. v. Doson, 30 Okl. 412, 120 P. 934; People v. Pompa, 192 Cal. 412, 422, 221 P. 198; Shields v. Oxnard Harbor District, supra.

In National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91, 94, 95 A.L.R. 1500, the court stated the proper rules of practice in regard to requests for views, and said: ‘* * * when such a request is made improperly in the presence of the jury * * * the judge should, of his own motion, retire the jury, and if he do not, the opposite party must request the retirement * * * the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. * * * Until the objecting party has requested the retirement of the jury, any previous failures to conform to the rules of practice above stated will be considered as breaches of propriety but not as reversible error.’

In a new trial the jury should be properly instructed on the law applicable.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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