Bettencourt v. State

Decision Date04 February 1954
Parties, 43 A.L.R.2d 545 . STATE et al. Civ. 15668. District Court of Appeal, First District, Division 1, California
CourtCalifornia Court of Appeals Court of Appeals

Jacobsen & Tobin, San Francisco, for appellant.

Ropers & Majeski, Redwood City, Edmund G. Brown, Atty. Gen., John E. Fourt, Deputy Atty. Gen., Robert E. Reed, Harry S. Fenton, Sacramento, for respondent.

BRAY, Justice.

Plaintiff, in an action for personal injuries, appeals from a judgment sustaining defendant State of California's demurrer without leave to amend.

Questions Presented.

1. Can the court take judicial notice of the character of the operation of the Dumbarton Bridge by the State of California?

2. Is that operation governmental or proprietary?

Complaint.

The complaint alleged that defendant State of California, together with the other defendants, operated and maintained 'that certain bridge and highway' between the counties of Alameda and San Mateo, commonly known as Dumbarton Bridge. It then alleges that defendants carelessly maintained the bridge in a defective and dangerous manner known to all defendants; that on a certain day when the lift span was raised no warnings were given or barriers raised, causing plaintiff's car to smash into the steel and concrete center roadway, injuring plaintiff. Defendant State of California demurred primarily on the ground that the operation of the bridge was a governmental function and that the state is not liable in tort for negligence in the discharge of such function in the absence of the state's consent to such liability, and California has given no such consent.

Operation of Toll Bridge Governmental?

The trial court took judicial notice of the fact that although originally the Dumbarton Bridge was a matter of private enterprise under franchise, at present it is operated for tolls, by the state, through its Toll Bridge Authority, and the character of its operation is governmental and not proprietary. Plaintiff contends that the trial court erred in taking such judicial notice.

'Courts take judicial notice of * * * 3. Public and private official acts of the * * * executive * * * departments of this state * * *.' Code Civ.Proc. § 1875. Dumbarton Bridge was purchased and is maintained and operated by the California Toll Bridge Authority under the provisions of the California Toll Bridge Authority Act, sections 30000-30506, Streets and Highways Code. '* * * the Authority is in reality the State of California.' Fowler v. California Toll-Bridge Authority, D.C., 46 F.Supp. 299, 301, affirmed, 9 Cir., 128 F.2d 549. Thus, it is obvious that the court may take judicial notice of the character of the operation. Such operation is the official act of the Toll Bridge Authority as specified in the act.

Moreover, the fact that the toll bridge is operated by the authority is a matter of such general common knowledge that the court may take judicial knowledge of it under the well-known rule that courts may take judicial knowledge of what is, or ought to be, generally known within their jurisdiction. See People v. Tossetti, 107 Cal.App. 7, 289 P. 881. In Varcoe v. Lee, 180 Cal. 338, 181 P. 223, in a well-reasoned discussion of the rule, the court lays down three material requisites: (1) The matter must be a matter of common and general knowledge. (2) It must be 'known,' that is, well established and authoritatively settled. (3) It must be known within the limits of the jurisdiction of the court, 180 Cal., at page 345, 181 P. at page 226. The operation of the Dumbarton Bridge meets all three requisites.

Dumbarton Bridge Governmental?

The character of the operations of the California Toll Bridge Authority has already been determined in Fowler v. California Toll-Bridge Authority, supra, 46 F.Supp. 299, 301: 'In all its functions, the Authority is representing and assisting the State in the performance of a traditional governmental function, that of building, operating and maintaining bridges and highway crossings as a part of the government system of state highways. The Authority is not a distinct and separate entity embarked upon a profit making commercial enterprise in competition with private citizens. The Authority owns no property. * * * The Authority does not act in any proprietary capacity. All of its acts are done for and on behalf of the State of California in the performance of a traditional governmental function.'

Yonker v. City of San Gabriel, 23 Cal.App.2d 556, 73 P.2d 623, pointed out that all authorities agree that the management, control, construction and maintenance of public highways is a governmental function as distinguished from any proprietary undertaking or business carried on by the public body. To the same effect, Fowler v. California Toll-Bridge Authority, supra, 46 F.Supp. 299, 301; Kansas City Bridge Co. v. Alabama State Bridge Corp., 5 Cir., 59 F.2d 48. 'Highway' includes 'bridges.' Sts. & Hy. Code, § 23. The power to construct bridges over navigable streams is included in the power to construct highways. Southlands Co. v. City of San Diego, 211 Cal. 646, 664, 297 P. 521. The enforcement and administration of the California Toll Bridge Authority Act is a part of the highway program of the state and all necessary expenditures therefor are payable out of the state highway fund. Sts. & Hy. Code, § 30809. The duty to provide and maintain a bridge as a part of a public highway, and to operate a suitable draw in the bridge for the benefit of the public highway up and down the stream are governmental functions. Daly v. City and Town of New Haven, 69 Conn. 644, 38 A. 397; Sylvester v. City of Milwaukee, 236 Wis. 539, 295 N.W. 696; Evans v. City of Sheboygan, 153 Wis. 287, 141 N.W. 265, 45 L.R.A.,N.S., 98; Mettet v. City of Yankton, 71 S.D. 435, 25 N.W.2d 460; Bremer v. City of Milwaukee, 166 Wis. 164, 164 N.W. 840; Arkansas State Highway Comm. v. Southwestern Bell Telephone Co., 206 Ark. 1099, 178 S.W.2d 1002, 1005; Groenewold v. Board of County Com'rs, 195 Okl. 526, 159 P.2d 258; Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355; Lyons v. Bottolfsen, 61 Idaho 281, 101 P.2d 1; Price v. Sims, 134 W.Va. 173, 58 S.E.2d 657. In Naumburg v. City of Milwaukee, 7 Cir., 146 F. 641, 650, contrary to the above decisions, a divided federal court held that the operation of a draw bridge by the city was 'not a governmental, but a corporate, duty' and therefore the city was liable for negligence in its operation. In Evans v. City of Sheboygan, supra, 153 Wis. 287, 141 N.W. 265, also a Wisconsin case, the court discussed the Naumburg case, approved the minority opinion and refused to follow the majority decision. Sylvester v. City of Milwaukee, supra, 236 Wis. 539, 295 N.W. 696, followed the ruling in the Evans case and completely ignored the Naumburg case.

Nor does the fact that tolls are charged change the character of the state's function. In Sears v. Tuolumne County, 132 Cal. 167, 64 P. 270, it was held that a toll bridge is a part of the public highway. In Talley v. Northern San Diego County Hosp. Dist., 41 Cal.2d 33, 257 P.2d 22, it was held that the fact that the district charged fees for hospital service did not make the operation of the district's hospital a proprietary function. 'The imposition of a charge for service is not inconsistent with the exercise of a governmental function. [Citations.] Neither is the profit or nonprofit phase of the activity engaged in determinative of either a proprietary or a governmental function. [Citations.] The test is whether the particular activity in which the governmental agency is engaged at the time of the injury is of a public...

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