Behr v. Santa Cruz County

• Decision Date: 10 August 1959
• Docket Number: No. 17747,17747
• Citation: 172 Cal.App.2d 697,342 P.2d 987
• Court: California Court of Appeals Court of Appeals
• Parties: Loucylie 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.

Page 987

342 P.2d 987

172 Cal.App.2d 697

Loucylie 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.

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

Aug. 10, 1959.

Hearing Denied Oct. 7, 1959.

Lucas, Wyckoff & Miller, Santa Cruz, for appellants.

Wyckoff, Parker, Boyle & Pope, John L. McCarthy, Grunsky & Pybrum, Watsonville, for respondents.

BRAY, Presiding Justice.

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 the 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 requie 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 or 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 it 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...