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LAURENZI v. VRANIZAN ET AL.
While walking in front of 522–524 Front Street the plaintiff fell. For the injuries he suffered in falling he commenced this action to recover damages. He named as defendants George Vranizan, the owner of the abutting property, Charles, John G. and Joseph Vinci, copartners doing business under the name of Oregon Restaurant the tenants of the owner, Louis Ferro and Attilio Vanucci, doing business under the name of L. Ferro Produce Company, who were subtenants of the Oregon Restaurant. He also named the City and County of San Francisco as a defendant. The defendants filed demurrers. The record discloses the contents of the demurrer of Vranizan only. That document will receive further notice as we proceed. The L. Ferro Produce Company entered into a contract with the plaintiff under the terms of which the action as to it was dismissed. The plaintiff pleaded his grievance in three separate counts. In the first one he alleged a cause of action against all of the defendants including the City and County of San Francisco under the terms of the Public Liability Act, Stats.1923, p. 675. In the second count he alleged a cause of action against all of the defendants for conspiring to maintain and for maintaining a nuisance. In the third cause of action he alleged facts showing or tending to show that the sidewalk was constructed in violation of certain statutory provisions. The same parties were named as defendants. The demurrer of George Vranizan was sustained as to the first and second causes of action and was overruled as to the third. That count he answered.
When the pleadings presented such issues the cause came on for hearing in the trial court. The plaintiff called some witnesses and introduced some documents. When he rested the defendants as above listed severally made motions for a nonsuit. Each motion as made was granted. The plaintiff contends that each ruling was erroneously made. For reasons too numerous to be stated it is necessary to consider the motion made by each set of defendants separately.
Taking up the motion of the defendant Vranizan we do not understand the appellant to claim that the trial court erred in sustaining his demurrer. As appellant says nothing on the subject in his brief this court is entitled to treat such errors as abandoned. Title G. & T. Co. v. Fraternal Finance Co., 220 Cal. 362, 30 P.2d 515. It remains to consider the court's ruling as applied to the third count. As stated above that count was based on the charge that the sidewalk was improperly constructed. Mr. Vranizan testified that the sidewalk was built in 1908 and that it was built pursuant to the specifications of the board of works. There is not a particle of evidence in the record at variance with his testimony. It follows that the trial court did not err in granting the motion of said defendant.
Taking up the motion of the Oregon Restaurant it is at once apparent that it had nothing whatever to do with the construction of the sidewalk and therefore under no circumstances was it liable on the third count. As lessee of the building it sublet No. 522 Front Street to L. Ferro Produce Company. The record discloses the subletting was done by an oral contract. The only witness who testified regarding the contents of that contract was Mr. Ferro. He testified that he made his contract with Mr. J. Vinci. The consideration was $100 and the term was from month to month. As we understand the record there was no claim the store was not rented. But an attempt was made by the plaintiff to show that the contract let to L. Ferro Produce Company the right to use the sidewalk for store purposes. However the trial court sustained objections stating to counsel the sidewalks were public property and, as the record then stood, the Vincis showed no authority in themselves to rent to the L. Ferro Produce Company any public property. It is also clear no duty was cast on the Oregon Restaurant to care for the sidewalk in front of L. Ferro Produce Company (Lucid v. Citizens' Investment Co., 49 Cal.App. 257, 193 P. 161), and it was not responsible for the manner in which the sidewalk in front of the store was maintained. Furthermore, as there was no evidence that Oregon Restaurant had any authority to act for the City and County of San Francisco, no duty devolved on it pursuant to the Statute of 1923, page 675. It follows there was no evidence under which any judgment could be entered against it under either the second count or the first count.
As to the motion of the City and County of San Francisco the record is short but requires the statement of additional facts. That the plaintiff was injured by falling on the sidewalk in front of the premises occupied by L. Ferro Produce Company is not disputed. Whether his case comes under the provisions of the statute above mentioned is the one issue presented by the briefs. Only one witness, Mr. Ferro, testified on the subject. He testified as follows: “I saw one hole. It was just between the Oregon Restaurant and my place of business. It was about one inch wide, or an inch and a half, and half an inch deep. * * * It had been there four or five years. It might not have been that big; if you walk on it you know it kind of wears. The condition of the sidewalk in front of my premises at 522 Front Street, San Francisco, as shown in that photograph, Plaintiff's Exhibit 5, is similar to the condition of the sidewalk as it existed on July 1, 1940.”
Except as of the date of the accident no other witness testified regarding the hole. Hence there was no other evidence that would show notice to the defendant. There was no claim of actual notice and the case rests on whether the facts showed constructive notice. In Nicholson v. City of Los Angeles, 5 Cal.2d 361, at page 364, 54 P.2d 725, at page 726, the court said:
“Constructive notice ordinarily involves, as an essential element, actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice. It is so provided in our Code definition. Civ.Code, § 19. * * * Consequently there must be shown, in order to charge the city with constructive notice under these principles, some element of conspicuousness or notoriety so as to put the city authorities upon inquiry as to the existence of the defect or condition and its dangerous character. It is equally clear, we think, that, where the city is charged with constructive notice on the basis of a duty to inspect, it must be made to appear that a reasonable inspection would have disclosed the defect or dangerous condition; that is, that, had there been no neglect of duty, there would have been actual knowledge on the part of the city officers.
“Under the rule contended for by respondent, the mere existence of a defect, no matter how slight or obscure for a substantial period of time, would be sufficient to charge the city with notice and render it liable for injuries received on account thereof. It is well settled that a municipality is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident.” (Italics ours.)
In Rodkey v. City of Escondido, 8 Cal.2d 685, at page 688, 67 P.2d 1053, at page 1054, the court said: “The mere existence of the minor defect caused by the slight sinking of the contiguous surface of the roadway was not alone sufficient to charge the city with constructive notice.”
In Whiting v. National City, 9 Cal.2d 163, at page 165, 69 P.2d 990, at page 991, the court said: “It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise, the city could be held liable upon a showing of a trivial defect. * * * There is here present no element of conspicuousness or notoriety showing any dangerous character in the slight rise of a portion of the sidewalk, which would put the city authorities upon inquiry or place upon them the duty of remedying the defect or condition pursuant to the provisions of the statute. The holding in the Nicholson Case that the continued existence of a minor defect is in itself insufficient to impose liability upon the city for injuries resulting therefrom is recognized as the law in other jurisdictions.” (Citing authorities.) (Italics ours.)
In Nicholson v. City of Los Angeles, supra, 5 Cal.2d at page 363, 54 P.2d at page 726, the court said: “This statute constitutes a modification of the rule of non–liability of municipalities for acts performed in a governmental capacity, and recovery thereunder is only possible where all the requirements conditioning the city's liability are supplied. It is not enough to show a dangerous condition of the property. ‘The municipality must have had notice and have failed to exercise its opportunity to remedy the condition. The theory of the act seems to be that liability is imposed not alone for the dangerous condition, but for the failure to remedy it, upon knowledge or notice thereof. The elements of knowledge or notice are logically essential to show culpability in failure to remedy the condition, and proof of one or the other is necessary to recovery.’ ”
In the case before us there was no “element of conspicuousness or notoriety showing any dangerous character” in the break in the sidewalk, nor was there any evidence that “the municipality must have had notice and had failed to exercise its opportunity to remedy the condition.” It follows that the order granting the motion of the City and County for a nonsuit was properly entered as to the first count contained in the complaint.
In the second count of plaintiff's complaint it was alleged that all of the defendants combined in maintaining a public nuisance. If they did that was a crime. Penal Code, sec. 374b. But it is presumed that everyone is innocent of crime or wrong. Code Civ.Proc. sec. 1963 sub. 1. Hence there was no indirect proof of the alleged acts. As to direct proof there was not a particle of evidence of any combination to commit said act or any act. There was no evidence that at the time Vranizan let to the Oregon Restaurant or when the latter sublet to the L. Ferro Produce Company that a nuisance existed. Nor was there any evidence that the lease from Vranizan to Oregon Restaurant or the sublease from the latter to the L. Ferro Produce Company did not vest in the lessee and sublessee respectively full possession and control of the property let thereunder. The record indicates that the contrary was the fact. Said lessee and sublessee under such circumstances were severally liable for their wrongful acts of omission and commission. Lucid v. Citizens' Investment Co., 49 Cal.App. 257, 260, 261, 193 P. 161. It follows the L. Ferro Produce Company only was liable under the second count, as to it the action has been dismissed by stipulation of the parties, and the several motions for nonsuit made by the other defendants as to the second count were properly granted.
The nature of the third count has been specifically mentioned hereinabove. Mr. Vranizan, the owner of the lots and the building standing thereon, testified that he constructed the sidewalk in 1908. He further testified that he constructed the sidewalk in compliance with the specifications of the city. The sidewalk was so constructed under a contract. Except as herein mentioned no witness testified that the city did any act of omission or commission regarding the construction of the sidewalk. It follows that the trial court did not err in granting the motion of the city with reference to the third count.
When the assistant city engineer was on the stand as a witness the plaintiff propounded to him the question as to whether or not the hole in question was repaired October 7, 1940. The defendant city interposed an objection. The objection was sustained. We see no error in the ruling. 10 Cal.Jur. 829; Runyon v. City of Los Angeles, 40 Cal.App. 383, 180 P. 837.
When the plaintiff was a witness in his own behalf he was asked if he had not been paid $3,175 by the defendant the L. Ferro Produce Company. He now asserts that the propriety of the question is not involved on this appeal, but he asks an expression of opinion for the guidance of the trial court in conducting a new trial. Under all of the circumstances we do not feel called upon to discuss the subject.
Mr. Vranizan was called under section 2055, Code Civ.Proc., as a witness for the plaintiff. It was not shown by any evidence that under his contract with his lessees it was provided that he should repair minor breaks in the sidewalks. He was defending the third count which charged that the sidewalk was improperly constructed. The plaintiff asked him: “Q. Before July 1, 1940, did Mr. Ferro inform you that he had been injured by falling in this hole on the sidewalk and had been laid up for two weeks as a result of it?” The attorney for Mr. Vranizan objected on the ground the subject was incompetent, irrelevant, and immaterial. The objection was sustained. No offer of proof was made. The plaintiff now claims the ruling was erroneous. The point has no merit. Thompson v. Buffums' Inc., 17 Cal.App.2d 401, 404, 62 P.2d 171. For the same reason we find no error in the ruling sustaining the objection of the defendant to a question which was: “Q. Was a suit brought against you for damages by a man named Frank Colburn, who was injured on this same sidewalk on January 26, 1940?” As Mr. Vranizan had leased the property and no claim was made that the duty rested on him to repair the sidewalk he was not liable for injuries sustained by those using it. 15 Cal.Jur. 740.
We find no error in the record. The judgment is affirmed.
STURTEVANT, Justice.
NOURSE, P. J., and SPENCE, J., concur.
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Docket No: Civ. No. 12382.
Decided: January 11, 1944
Court: District Court of Appeal, First District, Division 2, California.
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