STEWART v. Lewis Cox, Defendant and Appellant.* (1960)

Respondent sued appellant Cox and others, including Wahlstrom Bros., Inc. (hereinafter referred to as Wahlstrom), Skinner and Skinner Pool Plastering Inc. for damages arising from the negligent construction of a swimming pool. In May, 1957, Wahlstrom, a general contractor, entered into a written contract with respondents for the construction of a pool; appellant Cox was the subcontractor who poured the concrete for Wahlstrom; defendants Skinner were the plasterers. Prior to trial Wahlstrom paid respondent $4,500 and a dismissal was entered; after the commencement of the trial, upon payment of $750, the case was dismissed against the Skinner defendants. Judgment was rendered against appellant Cox for $19,224, taking into account the $5,250 paid by the other defendants. Cox appeals from the judgment and order denying his motion for new trial.

The evidence shows that on June 28, 1957, appellant did the gunite work on the pool and that he performed the same ‘negligently, unskillfully, recklessly, unlawfully, and in an unworkmanlike manner’ (Finding IV), in that—the concrete was poured too thin and in such a manner that the steel rested on the ground causing it not to be imbedded in, and not to properly reinforce the concrete, resulting in a pool too weak to withstand the water pressure; and further, that the negligence of appellant caused cracks of a structural nature in the concrete permitting water to escape undermining the earth and damaging the pool, cement deck, yard, yard improvements and portions of the house. On the issue of damages the parties entered into a trial stipulation concerning the various items, totalling $24,474.

Appellant extensively argues that Wahlstrom had ‘full undisputed knowledge that the pool had failed, cracked and leaked’ and that this, together with Wahlstrom's inspection and repairs of the pool during the two months prior to the final pool failure on November 2, 1957, operated as an intervening agency absolving appellant from liability (A.O.B. p. 5); and in support of his position submits certain evidence that after the pool was finished and filled (August, 1957) respondents advised Wahlstrom a crack had appeared and there was a water loss of approximately 2 inches daily, that at the end of September Wahlstrom sent a representative of Skinner Pool Plastering Inc. to check the plaster and repair the crack, that the latter emptied the pool, patched the crack with plaster and refilled the pool, that immediately thereafter the same crack, wider and longer, and several others appeared, and that Wahlstrom was advised and knew of the reappearance of the crack and subsequent leakage up to the failure of the pool on November 2, 1957, when several feet of water suddenly disappeared and Wahlstrom ordered it drained.

Appellant's contention raises the issue of proximate cause. Whether a plaintiff has sustained the burden of establishing that defendant's negligence was the proximate cause of his injury is normally for the trier of fact (Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12; Hilyar v. Union Ice Co., 45 Cal.2d 30, 286 P.2d 21; Hill v. Matthews Paint Co., 149 Cal.App.2d 714, 308 P.2d 865); and before it can be held, as a matter of law, that want of proximate cause exists, the evidence must point unerringly to that conclusion. Bady v. Detwiler, 127 Cal.App.2d 321, 273 P.2d 941; Merlino v. Southern Pacific Co., 132 Cal.App.2d 58, 281 P.2d 583. We find nothing in the record to justify our treatment of the issue of proximate cause before us as one of law.

In accord with his prerogative and duty to find the facts, the trial judge, after finding appellant Cox negligent (Finding IV), found ‘that as a direct and proximate result’ of that negligence, water escaped causing damage to the pool and premises. Finding V. Thus, at this point the issue is whether there is substantial evidence to support the trial court's finding of proximate cause; if there is, the finding will not be disturbed. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183. In this connection, we view the evidence in the light most favorable to the respondents (Primm v. Primm, 46 Cal.2d 690, 299 P.2d 231; Grainger v. Antoyan, 48 Cal.2d 805, 313 P.2d 848) and resolve all reasonable inferences in favor of the finding and judgment. Burke v. Chrostowski, 46 Cal.2d 444, 296 P.2d 545; McCarthy v. Tally, 46 Cal.2d 577, 297 P.2d 981; McCreary v. Mercury Lumber Distributors, 124 Cal.App.2d 477, 268 P.2d 762. With the foregoing rules in mind, we deem the finding of proximate cause to be supported by ample evidence, and to be proper.

Extensive testimony included that of numerous experts and is too lengthy to review in any detail, but it is apparent from the evidence that although Mrs. Stewart did, on numerous occasions, inform Wahlstrom that a crack had appeared and there was some water loss, it is likewise apparent that Wahlstrom had reason to and did believe it to be a harmless surface crack. The evidence shows that surface cracks in plaster are usual in pool construction and it is the common practice in the trade for the contractor to send a repair man to plaster patch them; that even experts are unable to determine from normal visual inspection if a crack is structural or surface; and that Wahlstrom, after the usual inspection determined it to be only a surface crack which would not cause a pool failure. The evidence simply does not bear out appellant's position that Wahlstrom had ‘full undisputed’ or any knowledge that the pool ‘had failed’ prior to November 2, 1957.

Relative to Wahlstrom's diagnosis that it was only a surface crack, all experts (including appellant) agreed that one cannot determine by the normal visual inspection whether a crack is structural or surface. Nevertheless such inspection is the common and usual method of dealing with cracks appearing in the plaster. According to Mrs. Stewart, although the width of the crack was visible, it was not measurable; and Carl Stokes testified that when he first saw it around the end of September it was short about a foot and a half long. It is recognized among the experts who testified that cracks occurring in the plaster, referred to as surface cracks, are quite common and may be caused by a variety of factors—inclusions, a foreign substance in the plaster, a valve at the bottom of the pool, a leak around a piping not set tight, differential settlement, and so on; and the same experts agreed with appellant Cox, who testified that ‘(Y)ou can't look at a crack and tell whether it is structural or not.’ Stokes, who repaired the crack for Wahlstrom, also testified that one could not tell just by looking at a crack whether it is structural or otherwise; as did Joseph L. Randall, Assistant Building Superintendent of the City of Burbank and a licensed engineer. As to water loss, many factors other than a crack can cause it. Leakage of even 2 inches in a 24-hour period, according to the witness Skinner, although unusual, does not necessarily indicate water is escaping through a crack, but does indicate an open valve on the backwash, a punctured plumbing line or some defect in the pool, or that a large crowd of people have been using it. Randall testified that ‘it can be any number of small things which cause it (water loss),’ as did Stokes, ‘that water may be going to other places than a crack.’

During the several months prior to November 2 (the day the water loss suddenly increased) Wahlstrom, after the normal visual inspection common in the trade, believed it to be a surface crack in the plaster, treated it as such, and so notified Skinner—there is a ‘crack in the pool * * * a crack in the plaster,’—and asked him to go out and repair it. Skinner sent Stokes who drained the pool and, with two Wahlstrom employees, inspected the crack. Wahlstrom, having diagnosed it and believing it to be a surface crack, ordered him to repair the plaster.

Cracks appearing in pool construction are quite usual; and Randall testified that it is common practice where cracks show up to repair them, and an engineer is not called unless the repair fails, and that ‘(T)he usual thing is to widen a crack wide enough so that you can pack in a solid material and replaster over the top of it. This is a common approach.’ This is exactly what Wahlstrom asked Stokes to do and what the latter did to repair the crack in respondents' pool.

Factually, any contention that ‘knowedge of general contractor (Wahlstrom) of pool failure operated as intervening agency’ (A.O.B. p. 5) falls inasmuch as although the evidence discloses Wahlstrom knew a crack existed and there was some water loss, it does not reveal that prior to November 2, when the failure actually occurred and the pool was drained, Wahlstrom had any knowledge or even reasonably should have had any knowledge that a ‘pool failure’ existed or the crack was a structural one which could cause damage. Nevertheless, appellant claims that such knowledge and Wahlstrom's knowledge of the cracks and leakage, together with its inspection and repairs of the pool two months before the pool failure on November 2, 1957, operated as an intervening agency. Nor can such contention legally be sustained. The commonplace nature of surface cracks in pool construction and the common practice of sending a repair man to patch and replaster them, have considerable bearing on the matter of foreseeability, here a determining factor on the question of intervening agency. On the issue of proximate cause, where defendant's negligence is the stimulus for some other act, force or omission which then causes harm, there is no break in the chain of causation; the intervening force which is the normal reaction to defendant's negligent conduct is known as a dependent intervening force and does not constitute a superseding cause relieving the original negligent actor from liability. Rest. of Torts, Section 443; Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 218 P.2d 43; Champagne v. A. Hamburger & Sons, 169 Cal. 683, 147 P. 954; Haverstick v. Southern Pacific Co., 1 Cal.App.2d 605, 37 P.2d 146. On the other hand, where subsequent to defendant's original negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. The test of whether the intervening force becomes a superseding cause appears to be foreseeability—if the risk of injury may have been reasonably foreseen, the defendant (original negligent actor) is liable, but if the independent intervening act is of a highly unusual or extraordinary nature not reasonably likely to happen and hence not foreseeable, it becomes a superseding cause and the defendant is not liable. Stasulat v. Pacific Gas & Electric Co., 8 Cal.2d 631, 67 P.2d 678; Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; McEvoy v. American Pool Corp., 32 Cal.2d 295, 195 P.2d 783; De Mirjian v. Ideal Heating Corporation, 129 Cal.App.2d 758, 278 P.2d 114; Ferroggiaro v. Bowline, 153 Cal.App.2d 759, 315 P.2d 446, 64 A.L.R.2d 1355.

As a result of appellant's original negligent act in the high pressure application of the concrete in the construction of the pool, a break occurred in the concrete causing the plaster to crack. The crack, because of its appearance, position in the pool and size, appearing to be only superficial and at most in the plaster alone, was treated and repaired in accord with the common practice in pool construction, as a surface crack. Appellant Cox, 20 years a licensed contractor specializing in pneumatically placed concrete, was then seven years experienced in guniting swimming pools and repairing structural failures, and had worked on over 1,500 pools; he testified that he had ‘done about everything (work) in the pool except plastering,’ that one of the purposes of plaster applied over gunite is to seal the latter, and that ‘it is common practice of the trade’ to use plaster to repair structural defects because ‘you cannot look at a crack and tell whether it is structural or not.’ Appellant had subcontracted for Wahlstrom for five years; it was not his business to repair ‘a crack like this or failure like this unless it was taken care of and prepared’; and it was the job of the pool contractor to prepare it.

If, then, the foreseeability rule is to be applied to determine proximate cause in this case, a reasonable inference from all of the circumstances is that appellant Cox with his experience and knowledge and prior dealings with Wahlstrom, should have foreseen and anticipated that if his gunite work was negligently done a structural crack might well occur and that it would, unless properly repaired, emit enough water over a period of time to undermine the earth and cause substantial damage; that a structural defect would initially appear as a surface crack in the plaster and that in the ordinary course of common practice in pool construction it would on normal inspection be determined to be the usual surface crack and be repaired as such; that Wahlstrom, the pool contractor would, from the normal and usual inspection common to the trade, diagnose it as a surface crack and treat and repair it as such; and that if in fact it was a structural crack in the concrete the crack would reopen and other cracks might appear permitting water to gradually escape into the ground until the surrounding condition became such that it could be determined that the crack constituted a structural, not a surface defect. Under these circumstances, although Wahlstrom's conduct may have constituted an intervening agency in the chain of causation, it is clear that such agency was not a superseding cause exonerating appellant of liability for his original negligence in applying the concrete. As affecting appellant's liability, whether Wahlstrom's acts and conduct were of a negligent nature is of little consequence—if they were not, appellant nevertheless is responsible for the proximate cause of his own original negligence; if they were and constituted one of the proximate causes of the damage, appellant would still be liable as a joint tort-feasor. If the injury be caused by the concurrent effect of two separate negligent acts or omissions, each is a proximate cause of the injury and neither can operate as an efficient intervening cause with regard to the other, and neither can escape liability as long as his own negligent act is one of the proximate causes of the injury (Westover v. City of Los Angeles, 20 Cal.2d 635, 128 P.2d 350; Wilson v. Zemen, 134 Cal.App.2d 382, 285 P.2d 1026; Bady v. Detwiler, 127 Cal.App.2d 321, 273 P.2d 941; Fagan v. Union Pacific Railroad Co., 85 Cal.App.2d 583, 193 P.2d 776.) ‘Liability may be imposed upon a defendant where his negligence is one of several contributing factors, each of which is a proximate cause of the injury.’ Westover v. City of Los Angeles, supra, 20 Cal.2d 635, 128 P.2d 350, 352.

Appellant seeks to avoid liability under the early rule of McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F. 696, involving a manufacturer's liability, thereafter applied by California courts to contractor's negligence. Johnston v. Long, 1943, 56 Cal.App.2d 834, 133 P.2d 409; Hale v. Depaoli, 1948, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183; Hogan v. Miller, 1957, 153 Cal.App.2d 107, 314 P.2d 230; Johnson v. City of San Leandro, 179 Cal.App.2d 794, 4 Cal.Rptr. 404. To invoke the rule of the foregoing cases, that a general contractor is not liable for the injuries to third persons resulting from his negligence in the construction of work after it is completed and accepted by the owner, appellant in oral argument denominated respondents Stewart ‘third persons,’ Wahlstrom ‘owner’ and appellant Cox ‘contractor.’ He argued that the pool contract between Wahlstrom, the general contractor and respondents, owners of the land, provides that the equipment and materials ‘affixed to owner's realty, shall remain the property of the contractor until the price of the pool’ has been paid in full, and inasmuch as the pool had not then been fully paid for, Wahlstrom became ‘the owner,’ respondents, ‘the third persons' and appellant ‘the contractor’; and further, that as between appellant and respondents, the latter are ‘third persons' because there is no privity of contract between them and appellant.

It is of course true that appellant was never a party to the contract referred to, but this is not sufficient to absolve him of liability for his own negligent acts. Moreover, appellant urges upon us a strained interpretation of the contract. For the sole purpose of securing payment of the equipment and materials installed by Wahlstrom, as between it and respondents, Wahlstrom under the provision in question was to retain title thereto until paid in full by respondents; but it is reasonable as to all others, that respondents, owners of the land on which the pool was built were also owners of the pool, and had a personal injury occurred to a third party on the premises, they no doubt would have been sued as such, as in the authorities cited by appellant; nor does the security provision change respondents' status as owners of the land, house, shrubs, improvements, et cetera. We find nothing in the contract between the owners of the premises and the general contractor to prevent the former from recovering damages against another for his negligent performance of work done on the premises. The superficial designations appellant gives the parties to bring his case under the rule relating to general contractors for injuries to third persons cannot change their true status, legal relationships and resultant duties. In fact, respondents are the owners of land on which Wahlstrom built the pool, Wahlstrom is the general contractor who also was named a defendant in the within action, and appellant is the subcontractor who performed the work on respondents' premises and who is liable for his own negligence. No third persons are here involved as in Johnston v. Long, 56 Cal.App.2d 834, 133 P.2d 409 (a tradesman), Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183 (daughter of lessee), Hogan v. Miller, 153 Cal.App.2d 107, 314 P.2d 230 (an employee) and Johnson v. City of San Leandro, 179 Cal.App.2d 794, 4 Cal.Rptr. 404 (pedestrian); the liability of the general contractor as in Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 321 P.2d 736; Johnson v. City of San Leandro, 179 Cal.App.2d 794, 4 Cal.Rptr. 404; Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1 and Johnston v. Long, 56 Cal.App.2d 834, 133 P.2d 409, is no longer of concern to us because Wahlstrom was dismissed as a defendant and respondents do not here seek to impose liability on Wahlstrom for the negligence of his subcontractor but sued appellant Cox as a joint tort-feasor; and the liability of the owners of the premises (here, respondents Steward) as contemplated in the rule appellant seeks to apply, is not here involved as in Johnston v. Long, 56 Cal.App.2d 834, 133 P.2d 409 (owners of building and ‘land occupiers' (at page 836, 133 P.2d at page 410)); Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1 (‘owner of real property’ (at page 229, 201 P.2d at page 2)); Hogan v. Miller, 153 Cal.App.2d 107, 314 P.2d 230 (owner of ‘the real property in question’ (at page 109, 314 P.2d at page 232)); and Johnson v. City of San Leandro, 179 Cal.App.2d 794, 4 Cal.Rptr. 404 (city). This is the case of a land owner suing directly one who committed negligent acts on his premises; the fact that appellant is also the subcontractor does not absolve him from liability for his own negligence. It is clear from the cases relied upon by appellant that in the rule relating to general contractors and third persons the ‘owner’ means the owner of the premises or the building upon which the work was done, and ‘third persons' do not refer to the owner of the property, but on the contrary to those coming on, or on the property for some purpose.

Stultz v. Benson Lumber Co., 6 Cal.2d 688, 59 P.2d 100, relied upon by appellant as conclusive of this appeal, clearly relates to a situation in which the negligent act of the second tort-feasor superseded the negligence of the first; the superseding agency consisted of knowledge of an apparent defect. Plaintiff, a painter, worked on a scaffold constructed by Newby his employer; a defective plank caused the same to collapse injuring him. The plank was manufactured and sold to Newby by defendant Benson Lumber Co. which knew the purpose for which the plank was to be used and the defect, the same being obvious (the wood was full of knots and cross grained); Newby, with knowledge of the obvious defect, used the plank as the main support of the scaffold. The court there properly interpreted Newby's act as an unforeseeable independent negligent one, a superseding cause absolving the original manufacturer or seller from liability. Unlike in the case at bar, the defect was apparent to the second tort-feasor and it was this knowledge and his deliberate use of the defective board that cut off the liability of the original tort-feasor. Factually the instant situation is dissimilar, for although a crack was apparent and Wahlstrom knew of it and the water loss, the evidence falls short of establishing that it was apparent as a structural defect which could cause injury, or known to Wahlstrom during the period in question as other than a superficial crack. The court in Nebelung v. Norman, 14 Cal.2d 647, at page 654, 96 P.2d 327, at page 331, similarly held that Stultz v. Benson Lumber Co., 6 Cal.2d 688, 59 P.2d 100, did not there control, ‘as that case involved the manufacture and sale of lumber in which the defects were apparent.’

Appellant also urges that the trial court erred in failing to find that Wahlstrom had knowledge the pool failed, cracked and leaked. Even if the evidence supported such a finding, there was no error, for the trial court found the ultimate fact—that as a direct and proximate result of the negligence of appellant Cox in guniting the pool, water escaped causing damage. The fact of knowledge of a crack, whatever its nature, loss of water, and pool failure is evidentiary; and true or not, it need not be found; findings of fact should be ultimate conclusions educed from the facts. Hahn v. Hahn, 123 Cal.App.2d 97, 266 P.2d 519; Goldman v. Goldman, 169 Cal.App.2d 103, 336 P.2d 952. So, too, it is here implicit in the finding of proximate cause either that it is not true that Wahlstrom had knowledge that the pool ‘failed, cracked or leaked,’ or if true, its knowledge was no such as to break the chain of causation.

Nor was it error for the trial court to fail to specifically find that Wahlstrom was negligent in repairing and filling the pool. The dismissal against Wahlstrom prior to trial upon its payment of $4,500 removed its negligence as a direct issue under the pleadings; and on the matter of whether appellant's negligence was the proximate cause of the damage, Wahlstrom's negligence, if any, was clearly not material since under the circumstances it would not affect the liability of Cox. Even had Wahlstrom been negligent, its conduct would not, under either the rule relating to proximate cause or that relating to joint tort-feasors, alter appellant's liability.

Appellant argues that in the absence of a finding of an inherently dangerous condition, under Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 321 P.2d 736, there is no contractor's liability for property damage. Our views hereinabove expressed on the source of appellant's liability make it unnecessary to deal further with this contention.

Appellant asserts that respondents were guilty of contributory negligence as a matter of law by their failure to adopt reasonable measures and make reasonable inspection of the pool upon noticing the crack. Contributory negligence is normally a question for the trier of fact and it becomes a question of law only when the court determines that but one inference can be drawn reasonably from the evidence (M & M Livestock Transport Co. v. California Auto Transport Co., 43 Cal.2d 847, 279 P.2d 13); we find no such situation here. Nor do we find that in the lower court appellant sustained his burden of proving contributory negligence. Rush v. Lagomarsino, 196 Cal. 308, 237 P. 1066; Anthony v. Hobbie, 25 Cal.2d 814, 155 P.2d 826; Ross v. San Francisco Unified School District, 120 Cal.App.2d 185, 260 P.2d 663.

The trial judge expressly found respondents were not guilty of contributory negligence; and from his oral statements at the time, nothing in the record to the contrary, it is apparent that he related his finding to the fact that the pool ‘is on cut land and cut ground.’ Contributory negligence was not raised by answer but was introduced in the pre-trial order. The record discloses, and it was conceded by appellant's counsel in his argument to the trial court, that appellant's ‘main contention is that the reason the pool cracked is because the pool was constructed partially on virgin soil and partly on filled soil and the fill was not properly compacted.’ The defense was tried on this theory; appellant failed to show that the pool had been built on filled ground, the evidence affirmatively establishing that the pool was constructed entirely on cut ground. The matter of contributory negligence as here argued—that respondents should have added no water to the pool, emptied the same and had it professionally inspected—is developed and raised for the first time on this appeal. This is borne out not only by the evidence but the statement of appellant's counsel to the trial court, ‘* * * the Stewarts had been damaged and someone is at fault because they are free from all liability or all claim of contributory negligence in this matter.’ (Emphasis added.) However, we find nothing in the record to show that respondents acted other than as reasonable persons in a prudent manner under the circumstances.

Ralph E. Stewart did not testify and no evidence was offered concerning him; June D. Stewart is a housewife and from her testimony it is clear she had little or no prior knowledge of swimming pool construction, care and use, and was completely dependent in the matter upon the one with whom she had contracted for the pool, Wahlstrom. There is no evidence that she did anything other than what she was told to do by Wahlstrom at the time the pool was turned over to her use. Upon discovering the crack she immediately contacted Wahlstrom describing the same and the loss of water. Wahlstrom was an expert in pool construction and its failure to take any immediate steps would certainly indicate to a reasonable person that neither the crack nor the loss of water was of any serious nature. That a housewife could not and did not diagnose the crack as a structural defect is no proof of negligence on her part. Even experts, including appellant, are unable to determine the nature of a crack and the cause of water loss by normal visual inspection; and the fact is that the experts did diagnose the crack as a surface crack and attributed the water loss to other causes. Later Mrs. Stewart was told by Stokes who repaired the pool that the loss was due to evaporation; she had no way of knowing the crack to be structural or that water was seeping into the soil. Any suggestion that under these circumstances Mrs. Stewart should have had an engineer inspect the pool, is wholly without merit. She did what any ordinary person acting prudently would have done—contacted the contractor who built the pool. Inasmuch as it (the builder and an expert in pool construction) was undisturbed by the condition what reason would Mrs. Stewart have to go to the additional expense of hiring an engineer?

As to appellant's present contention that respondents by their conduct knowingly assumed the risk in using the pool knowing their home was on fill and the pool was leaking, it is again apparent that the issue of assumption of risk is brought up for the first time on appeal. Not pleaded as an affirmative defense in the answer nor appearing on the face of the complaint, assumption of risk was neither mentioned in the pre-trial order nor in the argument of counsel to the court. The issue made its first appearance on this appeal. In any event appellant's argument is predicated, as it must be to support the defense of assumption of risk, on the fact that respondents voluntarily accepted the risk of using the pool ‘with knowledge and appreciation of the risk.’ Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 162, 265 P.2d 904, 906. Although evidence shows that respondents knew of the existence of the crack and loss of water and that some of their lot was fill (without knowing how much or where it was located), the respondents certainly did not know the gunite had been applied too thin and in such a careless manner that the pool was not properly supported by steel, that the crack constituted not surface defect in the plaster but a structural defect, that such a defect was responsible for the loss of the water, or that water would seep from the pool into the ground. The facts simply are not such that respondents knew or reasonably could have known of the hazard or danger involved; thus the defense of assumption of risk is not available to appellant. Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414, 289 P.2d 226; Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484.

The issue of damages was tried separately from that of liability. After the trial court found in favor of respondents on the latter issue, appellant's counsel requested a recess, ‘I think we can cut down on the question of damages by stipulation.’ In excess of an hour and considerable negotiation later counsel for respondents advised the court, ‘Your Honor, subject to the testimony of the expert as to cause of damage, we have arrived at a stipulation as to damages,’ and then proceeded to present the same—$7,000 cost of repair of swimming pool, $14,474 damage to house, $1,000 cost of repair of patio, $1,000 cost of replacing shrubs and planting, and $1,000 loss of the use of house. Relying upon this stipulation, respondents excused their real estate expert and offered testimony only on the cause of damage; and the court assessed damages in accord with the stipulation basing its judgment thereon.

The last day of trial was January 15, 1959. Thereafter on January 29, appellant secured new counsel, who on March 11, 1959, filed a notice of motion to be relieved of the stipulation relative to damages. Numerous affidavits in support of the motion were filed asserting mistake of fact and excusable neglect on the part of appellant and misrepresentation on the part of respondents in entering into the stipulation. Appellant's main arguments to the trial court, and on appeal, are—that respondents on November 19, 1958, filed a permit for proposed repair to the house and swimming pool at a cost of $6,000, which permit was not known to appellant and knowledge of which was withheld by respondents when negotiating for the damage stipulation; and that the proper measure of damage was not the cost of repairs, as assumed by both parties, ‘but the difference, if any, in the market value of the real property.’ (A.O. B. p. 35), citing LeBrun v. Richards, 1930, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336.

Addressed to the sound discretion of the trial court, the latter may set aside a stipulation entered into through inadvertence, excusable neglect, fraud, mistake of fact or mistake of law, where the facts stipulated have changed or where special circumstances exist rendering it unjust to enforce the stipulation. Gonzales v. Pacific Grayhound Lines, 34 Cal.2d 749, 214 P.2d 809. The court's action will be interfered with on appeal only on a clear showing of abuse of discretion. Sacre v. Chalupnik, 188 Cal. 386, 205 P. 449; Truett v. Onderdonk, 120 Cal. 581, 53 P. 26; Ross v. Atchison, Topeka & Santa Fe Railroad Co., 141 Cal.App.2d 178, 296 P.2d 372. Numerous affidavits were filed by both parties for the consideration of the trial judge. The rule for resolving factual conflicts created by affidavits is the same as the governing oral testimony—it is primarily for the lower court to determine the credibility of the affidavits and the weight of their averments, and its determination is rarely disturbed on appeal. Zuver v. General Development Co., 136 Cal.App. 411, 28 P.2d 939; Williams v. Reed, 43 Cal.App. 425, 185 P. 515; Brown v. De Waard & Sons, 99 Cal.App. 222, 278 P. 257; Estate of McCarthy, 23 Cal.App.2d 389, 73 P.2d 914.

The lower court obviously accepted as true the assertions contained in the counter affidavits, finding against appellant's claims of mistake of fact and excusable neglect, misrepresentation and fraud on the part of respondents, and a change in the facts stipulated and of circumstances rendering it unjust to enforce the stipulation. The reporter's transcript, counter affidavits, and personal observations of the trial judge reveal that it was appellant's counsel who at the outset requested a recess for the purpose of negotiating a stipulation; that counsel and the parties carried on their discussions in the court room for in excess of an hour going over the facts and figures; that respondents had actual bills of what the charges for repair had been or would be and submitted them to appellant who carefully examined them; that respondents submitted all bills and charges to appellant and went over the exact costs and value of everything in detail; that considerable discussion accompanied the examination of the bills; that to expeditiously dispose of the matter and avoid further lengthy testimony, respondents were willing to, and did, reduce their claim $8,000; and that appellant was in no way misled, imposed upon or misinformed and had as much information concerning the damage and cost of repair as respondents. They further disclose that the repairs in question had in fact been made by respondents without a permit. In any event, the cost set forth in the permit in question, although some evidence of the reasonable cost of repairs, is in no way determinative of the actual cost; and at all times since November 19, 1958, the permit was a matter of public record, available to appellant and with reasonable diligence he could and should have obtained the same had he deemed it material. In reliance on the stipulation respondents' counsel excused the real estate expert who was prepared to testify to the amount of damage, and offered testimony solely on the damage and its cause. We find no abuse of the trial court's discretion in denying the motion.

Nor do we find error in the trial court's application of the rule of damage relied upon by the parties in the stipulation. Although the measure of damage to real property set forth in LeBrun v. Richards, 1930, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336, is proper, it is well established that this rule is not inflexible and another method of measuring damage to property may be substituted if it is a more appropriate means of determining that damage. Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12; 14 Cal.Jur.2d, Damages, Section 159, p. 794. If the damage to real property is susceptible of repair, the measure may well be the cost of repair (Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12), as long as the cost is less than the value of the property prior to infliction of the injury (Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60 A.L.R. 475; Kell v. Jansen, 53 Cal.App.2d 498, 127 P.2d 1033; Sager v. O'Connell, 67 Cal.App.2d 27, 153 P.2d 569), to which is added the value of the loss of use of the property for the period the owner was deprived of it. The trial court obviously believed that counsel were fully aware of the law on the subject of damages and chose the measure used in the stipulation, and found that the cost of repair did not exceed the value of the property prior to the damage, adding the value of loss of use of the premises.

Appellant's new counsel also moved the trial court to reopen the case on grounds that ‘the evidence as presented (at the trial) was incomplete and misleading to the court and in derogation of the truth,’ urging that appellant can now establish to the court that ‘the gunite was in fact properly processed and that it was the soft fill that was the proximate cause of the pool cracking and the water damage loss.’ Also urged is that appellant did not then know about the permit on file November 19, 1958, relating to th cost of the proposed repairs. The motion was heard on February 15, 1959, the notice of motion having been filed some 20 days after the termination of the trial and on the same day judgment was ordered for respondents (February 6, 1959). In support of the motion various affidavits were filed as well as numerous counter affidavits. Reading the record and the contents of the affidavits we, as no doubt the trial court, are impressed by the fact that after appellant changed counsel the latter made a more through investigation into the cause and that what appellant now wants in another opportunity, with a new lawyer, to retry the issues and correct any mistakes made during the trial.

It is seldom that a reversal will be justified when leave to reopen is denied. Faulkner v. Faulkner, 153 Cal.App.2d 751, 315 P.2d 14. There are several restrictions which, as a matter of law, justify denial—thus, if newly discovered evidence is merely cumulative there is no prejudicial error in refusing to receive it (Fry v. Sheedy, 143 Cal.App.2d 615, 300 P.2d 242; Wilson v. Gurney, 123 Cal.App.2d 889, 268 P.2d 77), and if the proffered evidence would not have altered the court's conclusions as to the facts, the denial is proper. Crawford v. Senegram, 7 Cal.App.2d 449, 46 P.2d 173; Lobree v. L. E. White Lumber Co., 53 Cal.App. 85, 199 P. 821. Perhaps most important, the moving party must show diligence. Giomi v. Viotti, 144 Cal.App.2d 714, 301 P.2d 597; Hanson v. Wells Van & Storage Co., 100 Cal.App.2d 332, 223 P.2d 509; Taylor v. Continental Southern Corporation, 131 Cal.App.2d 267, 280 P.2d 514. In denying the motion the trial court doubtless found appellant was not diligent in sooner attempting to procure the proffered evident. Inasmuch as the records appellant sought to offer to controvert respondents' case were available at the time of the trial and related to the defense he had relied upon from the outset of the action, it is obvious that due diligence on his part would have developed the facts appellant now seeks to prove by the records before the close of trial, as easily as after the case was submitted and judgment was ordered. Maunder v. Pozzo, 175 Cal. 740, 167 P. 145. The same may be said of the witnesses appellant asserts would testify that the gunite was properly poured, a defense he had used from the beginning. The affidavits filed on the motion being conflicting, it was within the trial court's prerogative to accept the averments of one or more against those of others and overrule the motion. Kataoka v. Hanselman, 150 Cal. 673, 89 P. 1082. The record and affidavits disclose that appellant had ample time to prepare his defense and to bring all witnesses necessary; that the defenses that the gunite was properly poured and it was the soft fill that was the proximate cause of the cracking (denials in answer; pre-trial order), to which the proffered testimony went, were not new; that evidence of soil condition was defensive as was the pouring of the gunite and appellant should have been prepared; that the evidence proffered could with due diligence have been brought up at the trial; that the trial lasted four days, was tried in a painstaking manner, and extensive testimony was received, mostly from numerous experts; and that the only questions to be determined by the trial court were of fact and had the court reopened the case and received additional evidence it very likely would not have produced a different result due to the overwhelming evidence and testimony of the experts that the pool was not located on fill, that what fill was on the lot was properly compacted, that had the pool been partly on fill the same could have had no effect had the pool been properly constructed, and that the crack was caused not by any soil condition but by insufficient guniting. Clearly the trial court found appellant failed to offer sufficient excuse for not having introduced the proffered testimony at the trial and that due diligence in that regard was not shown. As to the permit then on file, at most, its use would have been for impeachment. The trial was in every respect a full and fair hearing of the evidence on both sides. The ruling was the proper exercise of the court's discretion and thus conclusive.

Much the same may be said of the lower court's denial of appellant's motion for a new trial, and considering our conclusions on the issues raised herein we find nothing to cause a reversal of the court's order.

The matter of retraxit has been introduced by appellant who cites numerous decisions rendered prior to the new addition to Section 877, Code of Civil Procedure, by the legislature in 1957. A reading of Section 877 does not support a holding that the action is barred by retraxit. In full the section provides:

‘Release of one or more joint tort-feasors; effect upon liability of others. Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort——

‘(a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater; and

‘(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.’

For the foregoing reasons the judgment is affirmed.

LILLIE, Justice.

WOOD, P. J., and FOURT, J., concur.