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

GUIDI v. STATE et al.*

Civ. 15407.

Decided: January 21, 1953

Remington Low and Clarence B. Knight, San Francisco, for appellant. Dana Bledsoe & Smith and Joseph W. Rogers, Jr., San Francisco, for respondent.

Appellant sued the State of California, the State Agricultural Society, several individuals, and a private corporation, to recover damages for personal injuries sustained in the State Fair grounds at Sacramento. A motion of the State and the Society for judgment on the pleadings was granted and judgment was entered in favor of respondents, from which this appeal was taken.

By an amended complaint plaintiff alleged that on September 3, 1950, he paid for admission to the fair grounds, and while there ‘the defendants so carelessly and negligently controlled, operated, supervised, and maintained the said fair grounds and the fireworks exhibition at said fair that a certain horse * * * became frightened and was caused to and did run into, knock down and trample the plaintiff.’ The second and third counts differed somewhat from the first but all three alleged a liability arising ex delicto. The filing of a claim before suit was duly alleged.

The State and the Society answered, denying plaintiff's allegations, and pleading the defenses of contributory negligence and governmental immunity. They then moved for judgment on the pleadings, based on the latter ground. In granting the motion the court held that in conducting the State Fair the State did not act in a proprietary capacity, hence there was governmental immunity.

In a written opinion the court relied on Melvin v. State of California, 121 Cal. 16, 53 P. 416, as authority for its ruling. In that case Melvin, who had paid an admission fee to the same fair grounds during the 1891 State Fair, was injured when the grand stand collapsed while he was watching a horse race. He recovered a $10,000 judgment, but a motion for new trial ‘was granted upon the ground that the state is protected from liability by reason of its sovereignty, and by reason of the several statutes applicable, or deemed applicable, to the facts as presented.’ In affirming the order the court after discussing the legislation on the subject said:

‘The legislature found ample authority for its action in the constitution. Section 1 of article 9 of that instrument is as follows: ‘A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.’ The act in question pursues the line thus indicated. The board constituted thereby is but the agency through which the sovereign authority of the state is carried out. The state appropriates its money, and the society receives it in aid of the benign objects in view. The state receives no pecuniary return. One object of requiring the annual report from the board of its receipts and expenditures doubtless is that the legislature may become familiar with the needs of the society, and gauge its appropriations accordingly. Respondent contends that, as there was no statute expressly authorizing the board of agriculture to charge admission fees to the state fair, their conduct in so doing was without authority of law and void. We are of opinion, however, that under the authority given to the board to provide for an annual fair, etc., to alter the constitution and to make needful rules, etc., the authority to provide for an admission fee may be implied. It does not follow, however, that the society is organized for gain. It exists for the sole purpose of promoting the public interest in the business of agriculture and kindred objects. It is an agency of the government, and in no sense an organization for pecuniary profit to the state. [Citation.]'

The constitution reads the same to-day as it did then, and the Supreme Court has several times restated its holding in that case. In Chafor v. City of Long Beach, 174 Cal. 478, 491, 163 P. 670, 675, L.R.A.1917E, 685, it said that therein it had ‘held that the state board of agriculture was a mere corporate agency of the state for public and governmental functions, saying: ‘We find none of the elements of a private corporation in its creation, its powers, or the mode of their exercise. Its objects are public and educational. * * * It exists for the sole purpose of promoting the public interest in the business of agriculture and kindred objects. It is an agency of the government, and in no sense an organization for pecuniary profit to the state.’' In People v. Superior Court, 29 Cal.2d 754, 759, 178 P.2d 1, it again, and in the same language, restated its holding in the Melvin case. See, also, Denning v. State, 123 Cal. 316, 322, 55 P. 1000, and Kellar v. City of Los Angeles, 179 Cal. 605, 610, 178 P. 505. The authority of the Melvin case has never been questioned by the courts.

Appellant argues that ‘There is a drastic need for re-examination of the doctrine of governmental immunity for tort in California’, citing Madison v. City & County of San Francisco, 106 Cal.App.2d 232 et seq., at pages 253–254, 234 P.2d 995, 236 P.2d 141, where that was strongly suggested. The question of governmental versus proprietary action arises respecting the activities of counties, municipalities, and occasionally a consolidated city and county government, as well as various State agencies under special statutes. On the present record, however, it is presented in connection with a project in a class by itself (the only thing of its kind in the State) which does not come into competition with business, industry or labor, see Muses v. Housing Authority, 83 Cal.App.2d 489, 502, 189 P.2d 305, and which has been definitely characterized by the Supreme Court as governmental. If there is need for a re-examination of the doctrine of governmental immunity for tort it must be made, so far as the present controversy is concerned, by the court which for a half century has adhered to its original holding in the Melvin case. As this court said in Lathan v. Santa Clara County Hospital, 104 Cal.App.2d 336, 340, 231 P.2d 513, 516, ‘an intermediate appellate court must accept the settled law as it finds it.’

Appellant argues that the State Fair in 1898 was ‘an entirely different affair than it is to-day.’ That is true at least in the sense that in the last half century there have been important inventions which have influenced the exhibits and displays on the scientific, industrial and agricultural side of the fair; mechanical milking is a ready and sufficient example. If that be true it is but natural that in the same half century there should also be radical differences on the entertainment and amusement side; television in 1950, the magic lantern in 1898, is again a ready and sufficient example. Entertainment and amusement features may or may not be educational (many are), but at the very least they are attractions which bring patrons to the fair where they are exposed to, and can gain, scientific, agricultural and industrial knowledge, thereby serving the purposes declared in article IX, § 1, of the constitution.

The real question is whether such innovations and modernization, inevitable in the march of time, alter in any essential respect the purposes and functions of the institution itself. Amusement and entertainment are but incidental to the educational departments. Horse-racing, for instance, always has been one of the big features of the fair, but the legislature certainly did not institute the State Fair just for that sport. ‘The incident follows the principal, and not the principal the incident’ § 3540, Civil Code, and it cannot be said that the essential purposes of the fair have been changed in any material respect, despite the many ways in which all its departments have been modernized, improved and extended from year to year. It is a matter of common knowledge that fairs and exhibitions throughout the land always have entertainment and amusement features.

Appellant's contention that ‘The question of governmental or propriety capacity cannot be determined on a motion for judgment on the pleadings' is somewhat related to the subject just discussed. Appellant says that he was entitled to plead, and could have pleaded, facts which would establish the proprietary character of the fair as now conducted, or at least that it is partially proprietary and partially governmental.

It is true, as claimed, that a defendant's motion for judgment on the pleadings is essentially the same as a general demurrer to the complaint and that although an answer is on file the court can look only to the face of the complaint. Hibernia S. & L. Society v. Thornton, 117 Cal. 481, 49 P. 573; North Side etc. Ass'n v. Hillside Memorial Park, 70 Cal.App.2d 609, 613, 161 P.2d 618. However, the judicial knowledge possessed by the courts in controlling. In Griffin v. County of Colusa, 44 Cal.App.2d 915, 918, 113 P.2d 270, 272, it was said: ‘Plaintiff relying upon the rule that all facts well pleaded are admitted as true upon demurrer, contends the allegation in the amended complaint ‘that at all the times herein mentioned the County of Collousa * * * maintained * * * and conducted in a proprietary capacity, a county hospital, known as the Colusa Memorial Hospital’, must be accepted as true. This general rule of pleading, however, does not admit a conclusion of law, nor does it admit the construction placed on an instrument pleaded in the complaint, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.' (Emphasis added.) See, also, Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987, and cases cited, and Walker v. City & County of San Francisco, 97 Cal.App.2d 901, 907, 219 P.2d 487.

State Fairs, which have been held annually for many years, have been declared to be governmental functions. The courts take judicial notice not only of all the legislation and decisions relating to them, but of ‘facts that are regarded as forming a part of the common knowledge of every person of ordinary understanding and intelligence.’ Takahashi v. Fish and Game Commission, 30 Cal.2d 719, 732, 185 P.2d 805, 813. The courts, therefore, have judicial knowledge of the evolution and development of State Fairs since they are matters of general and common knowledge and part of the State's history. Moreover under § 1875, Code Civ.Proc. the courts have recourse to all the records of the Society and other public records dealing with the subject. The trial judge had such knowledge when he ruled on this motion. Nothing could have been alleged which could have controlled such knowledge, under the authorities already cited.

Appellant argues that the issue in the present case is similar to that raised in Beard v. City & County of San Francisco, 79 Cal.App.2d 753, 180 P.2d 744, but that is not true since that case ‘went no further than to hold that a consolidated city and county might, in its municipal capacity as a city, conduct a proprietary hospital.’ Latham v. Santa Clara County Hospital, 104 Cal.App.2d 336, 339, 231 P.2d 513, 516.

Finally, appellant claims that the complaint states a cause of action based on nuisance. The complaint alleges acts of negligence in the control, operation, supervision and maintenance of the fair grounds in that a horse, frightened by fireworks, ran into, knocked down and trampled the plaintiff. Such acts do not come within the definition of a nuisance, which is: ‘Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the automary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway * * *.’ § 3479, Civ.Code; (emphasis added.)

The case of Landau v. City of New York, 180 N.Y. 48, 72 N.E. 631 is cited by appellant. There death resulted not from the setting off of fireworks in the usual way, but from an explosion (cause unknown) in the street of fireworks. The foundation for the holding was the unlawful use and obstruction of the streets. See § 3479 supra, also Phillips v. City of Pasadena, 27 Cal.2d 104, 162 P.2d 625. The court said [180 N.Y. 48, 72 N.E. 633]:

‘While a municipal corporation is not liable for the failure to pass ordinances prohibiting the discharge of fireworks in the public streets, it is bound to exercise due care to keep its streets in a safe condition, and is liable for permitting dangerous obstructions or nuisances therein. * * * Fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. In the case now before us, we have to do with a crowded street [Madison Avenue], near the center of the largest city on the continent, ‘where any misadventure in managing the discharge would be likely to result in injury to persons or property.’ Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city, where a vast multitude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact.' There is no similarity between that case and this.

In Miller v. City of Palo Alto, 208 Cal. 74, 76, 280 P. 108, 109 the appellant conceded ‘that a municipal corporation is not liable for damages caused by its negligence, or that of its employees in the exercise of governmental functions, unless it is expressly made liable by statute’ but claimed that the deposit of burning rubbish constituted a nuisance. The court in rejecting this contention said ‘as held by the trial court, the complaint does not allege a nuisance within our statutory definition of such, nor does it allege facts from which a nuisance may be inferred. It alleges a single act of negligence on the part of the city.’

The same may be said in this case. The complaint alleges acts of negligence of the defendants, and nothing that would bring the case within § 3479 defining nuisances.

We are satisfied that the motion was properly granted.

The order is affirmed.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, J., concur.