BEHR v. COUNTY OF SANTA CRUZ

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District Court of Appeal, First District, Division 1, California.

Loucylle Adams BEHR et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ, Defendant and Respondent.

William R. JUNK et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ, Defendant and Respondent.*

No. 17747.

Decided: February 09, 1959

Lucas, Wyckoff & Miller, Santa Cruz, for appellants. Wyckoff, Parker, Boyle & Pope, John L. McCarthy, Grunsky & Pybrum, Watsonville, for respondent.

Two actions by a number of property owners seeking damages to real and personal property from spread of a fire originating in a refuse dump owned and operated by defendant county were consolidated for trial. The two complaints are identical in their allegations except for parties plaintiff, and for the particular properties damaged, and are based upon three theories of recovery. The first count in each complaint is based on the Public Liability Act (Gov.Code § 53051 et seq.) and alleges dangerous and defective conditions. The second count alleges negligent operation by a county employee of a motor vehicle (self-propelled loader) which ignited a fire in the dump. The third count alleges maintenance of a nuisance. At the close of plaintiffs' evidence, on the court's suggestion that the third count did not properly allege nuisance, plaintiffs amended their complaints to set up fourth counts alleging nuisance. The court granted nonsuits as to the last three counts. The jury rendered verdicts in favor of defendant on the first counts. Plaintiffs appeal from the judgments thereon and claim to appeal from the orders granting nonsuits.

Questions Presented.

1. Did plaintiffs effectively appeal from the orders granting nonsuits? Corollary to this question is—Is there a final judgment in the action?

2. Alleged error in admission and exclusion of evidence.

3. Was the granting of the nonsuits erroneous? Is the question moot?

1. Appeal.

July 24, 1956, the minute orders granting the nonsuits were entered.

July 27, the jury verdicts were rendered. August 3, judgments on the jury verdicts were entered.

September 20, notice of appeal was filed.1

The only formal judgments entered show on their faces that they apply only to the verdicts, and not to the granting of nonsuits. The notice of appeal refers only to the judgments entered August 3 and does not refer to the minute order of July 24. Thus, on the face of the record there is no appeal attempted from the orders granting nonsuits.2 However, that fact under the circumstances here is not conclusive of the question of this court's jurisdiction to consider an appeal from the nonsuit orders. We first have to determine whether there has been a final judgment entered in the case. We are satisfied that there has not. There can be only one judgment in any case between the same parties. Gombos v. Ashe, 158 Cal.App.2d 517, 520, 322 P.2d 933. The situation here is somewhat similar to that in the Gombos case. There the trial court sustained a demurrer to the third cause of action and entered a judgment of dismissal thereon. The case proceeded to trial on the first and second causes of action and the plaintiffs recovered judgment thereon. That judgment was satisfied of record. The defendant then moved for a dismissal of the appeal filed from the judgment of dismissal on the ground that such judgment was not a final one.3 After pointing out that, as here, the action was attempted to be disposed of piecemeal, ‘that a single object, although stated in several counts, was sought to be attained by the action, and that this single and unseverable object was arbitrarily attempted to be split up as the basis for two distinct judgments' (158 Cal.App.2d at page 521, 322 P.2d at page 935), the court held that the judgment on the first two causes of action was not a final judgment and therefore not appealable. So here, the judgments on the verdicts did not purport to embrace a final disposition of the entire cause. By express terms they were confined to only the first counts, and erroneously failed to include a recital with reference to the disposition of the second, third, and fourth counts. In the Gombos case this court held that the appeal from the judgment on the third cause of action was premature, said judgment not being a final one, and that the judgment of dismissal on the first two counts was not a complete judgment because it did not, as it should have done, dispose of the third count. We then pointed out that the appellants were entitled to a determination by the appellate court of the validity of the judgment on the third count and that this could be accomplished by dismissing the appeal with instructions to the trial court to amend the interlocutory judgment on the first two causes of action by including a disposition of the third cause of action. Then the appellants could appeal from the portion of the amended judgment disposing of the third cause of action. That would have required rebriefing of the very points that had already been briefed. Therefore, in the interests of justice, we ordered the judgment to be amended by adding a dismissal of the third cause of action. We then treated the notice of appeal from the premature judgment of dismissal as a notice of appeal from the judgment as amended. So here, while we could order the trial court to make the necessary amendment to the last judgments as entered, such a method would require rebriefing of all the points now fully briefed. As all the pertinent documents are before this court, and in the interests of justice and to prevent unnecessary delay, we order that the judgments of August 3, 1956, be and they are amended by adding thereto a paragraph dismissing the second, third and fourth causes of action based upon the orders granting nonsuits thereto.

This having been accomplished, the notice of appeal filed September 20 may be properly treated as a notice of appeal from the judgments as thus amended, and we do so treat it. This brings us to the appeal on the merits.

2. Admission and Exclusion of Evidence.

Plaintiffs make no claim that the evidence does not support the verdicts against them. Their only contention for reversal on the first cause of action is that the court erred in the admission and exclusion of certain evidence.

The Fire Control Agreement.

The court over objection admitted a contract between defendant county and the State Division of Forestry, which provided that the State Forest Ranger should have charge of the work of fire prevention and suppression in certain areas of the county, which included the dump site. It also provided for fire stations, lookouts, personnel, facilities and equipment. The court informed the jury at some length that the contract was not admitted for the purpose of relieving the county from any obligation but merely for the purpose of showing what the county did in regard to the dump to suppress fire and to prevent the creation of fire and ‘If * * * it be contended,’ as it was, ‘that nothing was done to meet that obligation, then it becomes material to see what the county did * * * Whether that is sufficient or not is for you to determine * * *’.

Certainly the contract could not have been admissible to show that the defendant had either delegated its responsibility or was not the one primarily responsible for fire hazards in the dump. Assuming a duty, the foregoing would follow from the rule that a municipality is liable for the negligence or wrongful act of an employed independent contractor where the particular property or operation remains under the control of the municipality, where there is a positive duty imposed by law upon the municipality of such character that it cannot be delegated, or where the operations of work being performed are inherently dangerous. See 18 McQuillin, Municipal Corporations (3rd ed.) § 53.76, pp. 343–352; Mulder v. City of Los Angeles, 1930, 110 Cal.App. 663, 668, 294 P. 485, 487, ‘The city was not authorized to abdicate its powers or surrender to a private person its duty to exercise proper supervision of the work which it permitted to be done.’ But the contract was not admitted for that purpose and the jury was admonished in that regard.

The contract was admitted ‘only and solely for the purpose of showing what it did, not that that was sufficient nor that that is what is should have done, but it is only a circumstance indicating the actual situation from which you may draw the proper conclusion from the evidence and the law.’ This seems proper. For example, it showed that fire-fighting equipment and personnel were made available for the dump, in contrast to the evidence that the dump had no real fire-fighting equipment except an ax and a shovel.

The contract was admissible on cross-examination to bring out all the circumstances bearing on fire-fighting equipment available to the dump. A cross-examiner may bring out all the facts within the knowledge of a witness involving things testified to on direct and which are material to a thorough understanding of the testimony, or to elicit any matter which may tend to overcome, qualify or explain the direct testimony. People v. Dotson, 1956, 46 Cal.2d 891, 898, 299 P.2d 875; People v. Whitehead, 1952, 113 Cal.App.2d 43, 50, 247 P.2d 717.

The court properly admitted the agreement for the limited purpose expressed by it.

The Official Fire Report.

One of the duties of the Fire Ranger following a fire was to investigate and make an official report concerning its cause. The court refused to admit the official report made by the ranger of his investigation of the fire in question. Admittedly he was not present at the fire. The report was based primarily upon statements made to him by other persons. Plaintiffs contend that the report was admissible under section 1920, Code of Civil Procedure, ‘Entries in public or other official books or records, made in the performance of his duty by a public officer of this State, or by another person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein,’ or under the Uniform Business Records as Evidence Act, sections 1953e–1953h, Code of Civil Procedure. The report is of a similar type to an accident report made by police officers, concerning which the court in Hoel v. City of Los Angeles, 1955, 136 Cal.App.2d 295, 309–310, 288 P.2d 989, 997, said: ‘Not all official reports and not all business records are made competent by the cited sections of the code. Essentially accident reports, especially those compiled by police at the scene of an accident—based on statements of participants, bystanders, measurements, deductions and conclusions of their own,—fail to qualify as admissible official records or business records. See Needle v. New York Rys. Corp., 227 App.Div. 276, 237 N.Y.S. 547, 549; Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517, 518. That accident reports are not admissible under statutes such as our Uniform Business Records as Evidence Act Code Civ.Proc., §§ 1953e–1953h, was held in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, [144 A.L.R. 719]. In McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 392, 223 P.2d 862, 866, 21 A.L.R.2d 1206, this court said: ‘The statute does not change the rules of competency or relevancy with respect to recorded facts. It does not make that proof which is not proof. It merely provides a method of proof of an admissible ‘act, condition or event.’ It does not make the record admissible when oral testimony of the same facts would be inadmissible.' This language was repeated in Reisman v. Los Angeles City School Dist., 123 Cal.App.2d 493, 506, 267 P.2d 36, 45, in holding that certain reports prepared by public officials were inadmissible under section 1953f; and this was followed by application of the same principle to so-called public records.'

In Harrigan v. Chaperon, 118 Cal.App.2d 167, 168, 257 P.2d 716, a report of a city fire inspector who was not present at the fire stating the cause of the fire was admitted in evidence without objection. It was the only purported evidence of the cause of the fire. The reviewing court held that as it was based entirely upon hearsay and therefore that section 1920, Code of Civil Procedure, was not applicable, it could not be considered evidence to support the court's finding of the cause of the fire.

Here, had the fire ranger been testifying orally, his testimony, being based entirely upon hearsay, would not have been admissible.4 Merely placing the same material in a written report could not replace the rules of evidence. The above mentioned code sections could never have been intended to apply to reports based entirely upon hearsay.

The court acted properly in excluding the report.

3. The Nonsuits.

The second counts alleged that defendant county so negligently operated at the dump a motor vehicle, a self-propelled loader, as to ignite a fire in the dump which spread to plaintiffs' properties and caused the damage complained of. Section 400, Vehicle Code, provides that a county is responsible to every person who sustains damage by injury to person or property ‘as the result of the negligent operation of any said motor vehicle by an * * * employee * * * when acting within the scope of his * * * employment * * *’

About 1 p. m. July 29, 1954, fire broke out in the rubbish dump owned, maintained and operated in the Santa Cruz mountains by defendant county. The general area is forested, in which there is grass and weed cover. The State Division of Forestry classifies the area as a Number One Fire Zone. In the opinion of the Chief Ranger it is not a safe place for the operation of an open rubbish disposal dump. The day of the fire was a high fire hazard one. The dump had two terraces, the upper being used by local garbarge collectors and the lower by defendant and the public for disposal of all kinds of materials. The dumped material was thrown on top of the ground or over the bank. The material included wet garbage, brush, rags, bottles, cardboard, paper, shingles, wood and tree trimmings. Some of these materials created sources of ignition (bottles acting as magnifying glass) within the dump itself. Brush grew within the dump area itself and within 35 to 40 feet of a pile of brush and tree trimmings considered by one witness to be the place of origin of the fire. Prior to this fire there had been numerous fires in the dump, one of which almost escaped beyond the dump's confines. Fire in the dump was never actually out; the materials were smoldering almost constantly.

The pile of brush and tree trimmings deposited at the westerly end of the lower terrace of the dump projected onto the terrace. The caretaker had requested the defendant's road foreman in the area to send up a piece of equipment to push this material and other debris over the bank. In compliance with this request a county employee came to the dump with a scoopmobile to do the work. A scoopmobile or skiploader is a three-wheeled motor vehicle with two drive wheels in front and a steering wheel in the rear. It had a bucket on an arm which operated in front of the vehicle to pick up and drop materials and was equipped with rubber pneumatic tires. The front axle had a differential so that one of the drive wheels might spin while the other remained stationary. It was not equipped with a spark arrester but it had a muffler, which is considered a sort of arrester. The soil at the dump was sandy and a vehicle of this type is not a proper one for operation in that type of soil because of the risk of its getting stuck in the soil.

On the day in question, the scoopmobile went over the bank and became stuck as it was carrying brush off the terrace into the dump proper. Its front wheels were over the bank and resting upon brush and tree limbs, about four feet below the edge of the terrace, and its rear wheel was up on the bank, with its muffler and exhaust near the surface of the edge of the terrace. At the time the fire broke out the operator was engaged in attempting to extricate it which caused its wheels to spin. The burned out vehicle was found in the same position after the fire.

After the fire it was noted that the burned out area in the dump fanned out in a southerly direction from the scoopmobile, with the vehicle located at the apex of the fan. At the start of the fire the wind was blowing out of the north. Normally, the point of origin of a fire is at the apex of the burned out area. It was also found that the left front wheel of the scoopmobile rested on a partially burned log approximately 8 to 12 inches in diameter, having a rounded-out depression at its point of contact with the wheel.

There is no testimony by any of the witnesses who were at the dump at the time of the fire as to the exact location of its start or the source of ignition. However, prior thereto one witness had seen smoke, but no flame, about 10 feet below the rim of the dump, and another saw smoldering at the bottom of the dump in the general trash located there. The Chief Ranger for the Division of Forestry for the area gave expert testimony. He testified that he had supervised and participated in the investigation of the source of ignition, discussed it with his assistant, and visited the dump after the fire had been brought under control, probably again the next day, and again several days after the discussion with his assistant. Based on the investigation and his personal inspection of the ground which disclosed that the fire had fanned out from the apex there the scoopmobile was located, that the scoopmobile was over the bank, that the partially burned out log was under the left front wheel of the scoopmobile, it was his opinion that the most logical source of ignition was the friction caused by spinning the wheel in attempting to extricate the vehicle. In arriving at this conclusion he eliminated three other possible causes as less logical. They are: (1) Oil, rags, wet garbage under the cover of the dump which could have ignited by spontaneous combustion. (2) Possible prior chemical treatment of the debris upon which the scoopmobile was working, which could have caused ignition by ‘the rig pressure.’ (3) The exhaust from the scoopmobile igniting material that was possibly under the scoopmobile.

The fact that the burned out area fanned out from the scoopmobile and the opinion of the Chief Ranger that the most logical source of origin was the spinning of the wheels against the log, plus the photographs showing the fan-like burned area and the testimony of the witness Gum to the effect of a spinning wheel, were sufficient evidence that the fire might have started from the scoopmobile to require that the issues under the second count be submitted to the jury.

The ranger's opinion was based upon his personal investigation. Applicable here is: ‘In this case the experts set forth in detail the facts and reasons on which they based their opinions. Their conclusion that the fire was caused by careless smoking was reached by a process of elimination of other possible causes.’ George v. Bekins Van & Storage Co., 1949, 33 Cal.2d 834, 844, 205 P.2d 1037, 1044. Such evidence would support a finding in plaintiffs' favor on these issues had one been made. The weight to be attached to the opinion and whether it was contradicted by other evidence is not material here since on an appeal from a nonsuit we must consider the evidence and the reasonable inferences therefrom most favorable to the plaintiffs and determine therefrom whether there is substantial evidence that would have supported a verdict in their favor.

Defendant contends that the second counts fail because the Public Liability Act and not section 400, Vehicle Code, applies. By rather involved reasoning it contends that because the counts apparently alleged a combination of the manner in which the dump itself was maintained with the negligent operation of the scoopmobile no recovery could be had under section 400. The scoopmobile was in “operation” as it was in a “state of being at work” and was “in the active exercise of some specific function' by performing work or producing effects at the time and place the injury is inflicted.' Chilcote v. San Bernardino County, 1933, 218 Cal. 444, 445, 23 P.2d 748, 749. The fact that negligence of the county in other respects may have contributed to the cause of the fire does not lessen the county's liability under section 400 if the negligent operation of a motor vehicle also proximately contributed to its causes as an independent act of negligence. Independent acts of negligence concurring to cause an injury are actionable. In Behling v. County of Los Angeles, 139 Cal.App.2d 684, 294 P.2d 534, one of the county's bulldozers was inoperative because its blade was on the ground and could not be lifted by the bulldozer itself. Another of the county's bulldozers was moved to a position where its blade was butted against the broken blade so that the second bulldozer could lift the broken blade to enable the inoperative bulldozer to be towed away. It was alleged that the operative bulldozer was so negligently operated in lifting the broken blade as to cause it to fall on the plaintiff's hand. It was held that this was “the negligent operation of any said motor vehicle” as the phrase is used in section 400. 139 Cal.App.2d at page 685, 294 P.2d at page 535. If defendant's contention that the negligent operation of the scoopmobile in our case is immaterial in determining liability then in the Behling case there could have been no cause of action stated for the negligent operation of the operative bulldozer for the reason that the defective condition of the other bulldozer was also involved. Yet there the cause of action which the court upheld was based upon section 400, Vehicle Code.

Chilcote v. San Bernardino County, supra, 218 Cal. 444, 23 P.2d 748, cited by defendant for the proposition that recovery, if any, could be had only under the second counts under the Public Liability Law (the jury verdict under the first counts determined that there was no liability under that law) is not in point. There the complaint charged a defective and dangerous condition of the highway due to a large pool of oil left standing on the highway which caused the plaintiff's motorcycle to overturn. ‘Supplementing these facts are allegations that the condition of the highway was due to the negligent operation of motor oil trucks by servants of said county * * *’ 218 Cal. at page 446, 23 P.2d at page 749. This referred to the deposit of oil on the highway by such trucks. The court in holding that the latter fact was not the type of ‘operation’ of a motor vehicle contemplated by section 1714 1/2, Civil Code, the predecessor of section 400, Vehicle Code, referred to the Public Liability Law and pointed out that it would cover the oil negligently permitted on the highway, but that section 1714 1/2, Civil Code, was intended to apply only to motor vehicles actually performing work on the highway. The court at no time held, or even discussed, the question of the effect of concurrent acts of negligence.

Defendant contends that section 453, subdivision (b), of the Vehicle Code, providing certain exemptions of publicly owned motor vehicles ‘engaged in work upon the surface of a highway’ applies. Here the scoopmobile was engaged in working on a part of the dump and not in work ‘upon the surface of a highway.’ In Behling v. County of Los Angeles, supra, 139 Cal.App.2d 684, 294 P.2d 534, the accident occurred on a dirt roadway, ungraded and unpaved, in a forest reserve, not open to the public travel and blocked off by means of a chain and lock. The court held that this was not a ‘highway’ within the meaning of the Vehicle Code. The county road commissioner testified that the terrace where the scoopmobile was working was not a part of the county road system. By no stretch of the imagination can a terrace on a garbage dump be considered a ‘highway.’

Third and Fourth Counts. Nuisance.

As pointed out by the trial court, the third counts did not state causes of action for nuisance as there are no allegations of nuisance in it. They merely allege that the fire was caused by negligence in the maintenance of the dump and in the operation of the scoopmobile. Therefore, the nonsuit on the ground that the counts did not allege nuisance was properly granted. Plaintiffs followed the suggestion of the court and filed fourth counts in which nuisance is properly alleged. While perhaps these counts allege too much in that they incorporate the allegations of the second counts, they do allege that the defendant maintained the dump in such manner as to be injurious to, and to cause an obstruction to the free use of the plaintiffs' property and so as to interfere with the comfortable enjoyment of life and property.

Defendant's first contention is that inasmuch as the maintenance and operation of a refuse disposal dump by the county is a governmental function maintained under authority of the statute5 ‘Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.’ Civ.Code § 3482. In Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720, 727, 317 P.2d 33, it was held that that code section is not applicable to a defectively constructed sewer outfall line. The rule in California is that a public agency or municipality may be liable for the maintenance of a nuisance even though it is exercising a governmental function in the activity at issue, and any person whose property is affected or whose personal enjoyment is lessened by a nuisance may maintain an action for damages. Phillips v. City of Pasadena, 27 Cal.2d 104, 106, 162 P.2d 625. In Hassell v. San Francisco, 11 Cal.2d 168, 171, 78 P.2d 1021, it is stated that authority given a municipality by charter to have exclusive control and management of parks, including the right to erect and superintend the erection of buildings therein, does not give it the right to exercise the power in such a manner as to create a nuisance.

The fourth counts of the complaints, therefore, pleaded causes of action.

Moot?

Defendant contends that the finding of the jury on the first causes of action makes the second and fourth causes moot. This is not true as to the second counts. The first counts charge, under the Public Liability Law, a dangerous and defective condition due to the accumulation of inflammable material, the habitual burning of brush at all hours of the day and night, failure to extinguish such smoldering and burning brush. The jury found against plaintiffs on this issue. While evidence of the negligent operation of the scoopmobile was admitted, the instructions to the jury were not based upon the theory of that negligence but on the theory of dangerous or defective condition. Hence the jury's finding could in no way be a bar to a subsequent determination of the question of the negligent operation of the scoopmobile. In a trial of the issues raised by the second count, the question will be not was a dangerous or defective condition of the dump a proximate cause of the fire, but the negligent operation of the scoopmobile.

As to the fourth causes of action a different situation arises. A dangerous or defective condition of the dump itself is a necessary part of the nuisance charge. Without it there could be no nuisance. To determine that would be the retrial of a matter of which the jury has already judged. Plaintiffs contend that the jury verdicts under the first counts might have been based, not upon a finding that there was no dangerous condition of the dump, but on a finding that one or more of three requirements of recovery under the Public Liability Law were not proved, to wit, notice of the condition, reasonable time to remedy it, and filing of the required claim against the county, none of which are requirements to prove a nuisance. However, under the evidence in this case the jury could not have based its finding on those grounds. The evidence was conclusive that the county knew of the condition of the dump for more than a reasonable time to remedy it if the condition needed remedying. No contention was made that the claim was not properly filed. In Hassell v. San Francisco, supra, 11 Cal.2d 168, 171, 78 P.2d 1021, 1022, the court said: “A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.' 46 Cor.Jur. p. 674.' Under that rule the grant of power to the county to maintain and operate a refuse dump including the burning of refuse thereon, protects the county from liability for the ordinary operation of the dump. Necessarily implied in the grant of power under section 25820 is the right to operate the dump in the usual and customary manner in which similar dumps are operated. However, a dump may not be operated in a negligent manner nor in such manner as to constitute a nuisance. See Ambrosini v. Alisal Sanitary Cist., supra, 154 Cal.App.2d 720, 726, 317 P.2d 33; 63 C.J.S. Municipal Corporations § 770, pp. 69–70. But in this case there is a jury finding that the dump was not operated in a negligent manner (the only basis for nuisance charged) and that the acts upon which plaintiffs base their claim of nuisance did not occur. The finding of the jury on the factual issues under the first causes of action is determinative of the same issues under the fourth causes even though different legal conclusions might be drawn had the jury found the other way upon them.

Under the pleadings, the evidence and the findings of the jury in this case, the charges in the fourth causes become moot.

The judgments on the first, third and fourth counts are affirmed. The judgments on the second counts are reversed. Each party will bear its own costs.

FOOTNOTES

1.  Plaintiffs moved for a new trial, thereby extending the time for appeal. The notice of appeal was timely, whether from the entry of the orders granting nonsuit or from the judgments on the verdicts.

2.  It is interesting to note that both parties assumed in their briefs that there was such an appeal and that this question was not raised until oral argument. Of course, the question of jurisdiction of this court to consider an appeal may be raised at any time.

3.  In Costa v. Regents of University of Cal., 103 Cal.App.2d 491, 229 P.2d 867, it was held that a minute order granting a nonsuit is in itself a judgment of dismissal and ordinarily as such is an appealable order.

4.  We are not dealing with expert testimony based upon assumed questions of fact. Such testimony of the Chief Ranger was admitted.

5.  Section 25820, Government Code, provides that the board of supervisors of a county may acquire, maintain and operate dump sites and other disposal plants for the disposal of combustible or noncombustible garbage or rubbish or both.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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