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

Clarence E. LAMBERT, John F. Lambert, Plaintiffs and Appellants, v. SOUTHERN COUNTIES GAS COMPANY OF CALIFORNIA, a corporation; Louis G. Dreyfus, Jr.; Constance Dreyfus Lazear; Isidora D. Parsons; County National Bank and Trust Company of Santa Barbara, a national banking association, as Trustee; Isidora D. Parsons, as Trustee and Constance Dreyfus Lazear, as Trustee, Defendants and Respondents.*

Civ. 23063.

Decided: February 24, 1959

W. P. Butcher, Frank R. Crandall, Santa Barbara, for appellants. Schramm, Raddue & Seed, by Edw. W. Schramm, Santa Barbara, for respondent Southern Counties Gas Co. of California.

Plaintiffs appeal from a judgment for defendant Southern Counties Gas Company after its general demurrer to the first amended complaint was sustained without leave to amend.

The pertinent allegations of the first amended complaint are that plaintiffs' equipment worth $32,000 was bailed with driver to the defendant ranchowner with the understanding that it was to work by the hour at the direction of the ranch overseer. Early in the second day, the equipment blade hit and punctured defendant Southern Counties Gas Company's high pressure gas pipe less than 15 inches under the surface of the ground, the gas ignited and the plaintiffs' equipment was totally destroyed. The action is against the ranchowner (named only in the first court) and the gas company (named only in the second count) to recover the $32,000 damage caused by the destruction of the equipment and to recover certain other damages alleged.

In the first count, it is alleged that the ranchowner, having made a contract with the gas company many years before for the right of way across the ranch, should have known where the pipe was located and was negligent in directing the work of the plaintiffs' equipment over said pipeline. By stipulation, the ranchowner will not answer until this appeal from the judgment after ruling on the gas company's demurrer is decided.

In the second count, it is alleged that the gas company was negligent in permitting its pipeline to remain so near the surface of the ground.

The general demurrer of the gas company, the defendant named only it Count II of the complaint, was sustained without leave to amend, because of negligence of the ranch overseer alleged in Count I of the complaint and imputed to the plaintiffs, the owners of the equipment, under Section 402 of the Vehicle Code of California.

Said Section 402 provides in part that ‘Every owner of a motor vehicle is liable and responsible for the * * * injury to * * * property resulting from negligence in the operation of such motor vehicle * * * by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.’

First, appellants' claim that it was error to classify the appellants' equipment as a motor vehicle will be considered. Respondent gas company relies upon the decision in Behling v. County of Los Angeles, 139 Cal.App.2d 684, 294 P.2d 534, and particularly the language of Mr. Justice Fourt, speaking for this court at pages 687 and 688 of 139 Cal.App.2d, at page 537 of 294 P.2d, where he said: ‘Tested by the definitions heretofore set forth, it is apparent that a bulldozer is a motor vehicle within the commonly understood meaning thereof * * * Had the Legislature been so minded to exempt such equipment from the provisions of the code (Vehicle Code, Sec. 400), wherein the operation of such equipment might bring about liability to a political subdivision, such as a county, it could have done so easily. It did not do so.’

In the Behling case, supra, the plaintiff sought damages for personal injuries caused by the negligent operation of the County's bulldozer in connection with road work. Judgment for defendant was reversed with instructions that its demurrer to the complaint be overruled. The allegations of the complaint in the Behling case, supra, are not stated in the opinion.

Each ruling on demurrer must be made upon the facts as stated in the pleading which is attacked by the demurrer.

Paragraph I of the First Count is identical with Paragraph I of the Second Count of the First Amended Complaint in the instant action. Those paragraphs contain the only description of appellants' said equipment to be found in the complaint, and they read as follows: ‘That plaintiffs at all times herein mentioned were the owners of a Caterpillar D8 tractor equipped with a Bulldozer 8S blade attachment and No. 29 Cable Control attachment; that hereinafter said equipment will be referred to as plaintiffs' bulldozer.’

The Vehicle Code, Section 31, defines a ‘vehicle’ as ‘a device in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway, excepting a device moved by human power or used exclusively upon stationary rails or tracks.’ Section 32 provides that a motor vehicle is a ‘vehicle which is self-propelled’.

The agreement between plaintiffs and said ranchowner alleged in said First Amended Complaint was that said bulldozer was to be used ‘on said Eagle Canyon Ranch for a period of six days'. It is also alleged that U. S. Highway 101 ‘extends across' said ranch; that approximately 300 feet north of said Highway 101, also crossing said ranch, is ‘an old and abandoned paved portion of what used to be many years ago, the old state coast highway’; that there is a private ranch dirt road intersecting said old coast highway and running north to the ranch buildings; that the bulldozer would be delivered to the private ranch dirt road where it intersects the old abandoned coast highway; that the equipment was delivered to that point as agreed; and that the equipment was used on said Eagle Canyon Ranch according to said agreement for one day and a portion of another before the striking of the gas pipe.

The appellants' equipment involved in the instant action is concededly ‘self-propelled’. Appellants urge that it is not a device ‘in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway’.

In ruling on a demurrer only the facts pleaded and those of which the court takes judicial notice may be considered. Southern Pac. R. Co. v. Wood, 124 Cal. 475, 57 P. 388; Livermore v. Beal, 18 Cal.App.2d 535, 539–540, 64 P.2d 987; Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666.

Therefore, the further characteristics of plaintiffs' equipment described by them in their opening brief and claimed to negative any finding that said equipment is a motor vehicle have not been considered by this court in connection with the instant appeal.

A meticulous reading and rereading of the complaint fails to find any allegation that plaintiffs' said equipment was a ‘motor vehicle’ or a ‘device in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway’. There is no allegation that the equipment ever had been so used, and the agreement set forth is that the equipment was intended to be and was used only upon the ranch.

According to Webster's New International Dictionary, a bulldozer is ‘an upsetting machine, as a forging or bending press. The ram slides in a horizontal path and is actuated by a pair of powerful cranks and connecting rods.’

The courts are not required to take judicial notice of the fact—if it be a fact—that ‘a Caterpillar D8 tractor equipped with a Bulldozer 8S blade attachment and No. 29 Cable Control attachment’, or even ‘a Caterpillar D8 tractor’ without such other equipment is a device which ‘may be propelled, moved or drawn upon a highway’.

Because of our decision above stated, it is not necessary to consider appellants' contention that the court erred in considering the allegations of the first count, or of a superseded complaint, in connection with the demurrer of a defendant named only in the second count of plaintiffs' first amended complaint.

The judgment is reversed with directions to overrule the general demurrer of defendant gas company, allowing a reasonable time within which said defendant may file its answer if so advised.

WHITE, Presiding Justice.

FOURT and LILLIE, JJ., concur.

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