Dufour v. Henry J. Kaiser Co.

• Decision Date: 11 April 1963
• Docket Number: Nos. 20354 and 20355,s. 20354 and 20355
• Citation: 29 Cal.Rptr. 871,215 Cal.App.2d 26
• Court: California Court of Appeals Court of Appeals
• Parties: George DUFOUR, Plaintiff and Appellant, v. HENRY J. KAISER CO., a corporation, Defendant and Respondent. Sven HANSEN and Flnn Hansen, Plaintiffs and Appellants, v. HENRY J. KAISER CO., a corporation, Defendant and Respondent. Civ.

Page 871

29 Cal.Rptr. 871

215 Cal.App.2d 26

George DUFOUR, Plaintiff and Appellant, v. HENRY J. KAISER CO., a corporation, Defendant and Respondent.

Sven HANSEN and Flnn Hansen, Plaintiffs and Appellants, v. HENRY J. KAISER CO., a corporation, Defendant and Respondent.

Civ. Nos. 20354 and 20355.

District Court of Appeal, First District, Division 3, California.

April 11, 1963.

Rehearing Denied May 7, 1963.

Hearing Denied June 4, 1963.

Lucas, Wyckoff, Miller, Stanley, Scott & Bennett, Stephen Wyckoff, Ronald K. Dunton, Santa Cruz, for appellants.

Cushing, Cullinan, Hancock & Rothert, John Hancock, Douglas M. Phillips, Thelen, Marrin, Johnson & Bridges, Douglas B. Hughmanick, San Francisco, for respondent.

DRAPER, Presiding Justice.

Two actions for property damage were consolidated for trial and on appeal. Jury verdict was for defendant in each case, and plaintiffs appeal from the judgments.

Plaintiffs' business is the raising of trout for sale. Plaintiff Dufour owns the land upon which these businesses are conducted, including springs which furnish water used in Dufour's operation as well as that of Hansen, who leases part of the Dufour property. From these springs, the land slopes upward, and defendants own the higher ground immediately adjoining that of Dufour.

The watershed draining into plaintiffs' springs area consists of some 606 acres in two canyons. A coffer dam was constructed by defendant in Canyon No. 1, and no damage from runoff of that canyon is here claimed. Some 326 acres drained into Canyon No. 2, runoff from which is claimed to have caused the damage which is the subject of this action. Of this total area, 32 acres were owned by defendant. In preparation for quarrying sand, defendant had removed the begetation from 10 acres, and had stripped the topsoil from 3 of the 10.

Heavy rains fell in this area September 17 through 19, 1959, with some 8 inches of rainfall in one 24-hour period. Sand was washed down Canyon No. 2 into plaintiffs' springs, catch basin and fish raceways, killing substantial numbers of fish. There is evidence that defendant knew much earlier that introduction of sediment into the water would kill fish. Plaintiffs seek damages for loss of the fish and for injury to the spring and catch basin.

The trial court gave an instruction on unavoidable accident, in the form set forth in BAJI (4th Rev.Ed.) 134 (but withdrawn in the 1959 pocket part). In 1958, this instruction was held to be erroneous (Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1). Whether such error is prejudicial depends on all the circumstances of the case, including the other instructions given (id., p. 661, 320 P.2d p. 506). Decisions holding the instruction not prejudicial to a plaintiff because of strong evidence of contributory negligence (Pobor v. Southern Pacific Co., 55 Cal.2d 314, 11 Cal.Rptr. 106, 359 P.2d 474; Rayner v. Ramirez, 159 Cal.App.2d 372, 324 P.2d 83), do not aid this defendant. Here the jury was not instructed on contributory negligence because there was no evidence to support that defense. There is support for the view that the instruction standing alone was prejudicial (see Yockel v. Hatley, 172 Cal.App.2d 1, 341 P.2d 816). We need not determine this question, however, since we have concluded that this instruction, coupled with that on act of God, unduly emphasized defense contentions, and that the cumulative effect of the two instructions was to blur the jury's view of the real issues--foreseeability of the heavy rain and its harmful results.

The instruction on act of God emphasized foreseeability of the rainstorm which did occur, and stated that 'if injuries result from a storm which could not reasonably have been anticipated, * * * as to the amount of precipitation * * * then any injury resulting from a failure * * * to anticipate such a storm * * * results from an act of God for which no one is responsible.' This overstates the rule, since it excuses any and all injury if the storm were not foreseeable. In fact, the exculpatory rule applies only when human agency does not participate in proximately causing the harm. If defendant's negligence combines with an 'act of God' to cause injury, liability will result (London Guarantee & Accident Co., Ltd., v. Industrial Accident Comm., 202 Cal. 239, 259 P. 1096, 54 A.L.R. 1392; Newman v. City of Alhambra, 179 Cal. 42, 175 P. 414; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11).

Aside from this error, the combination of an instruction on 'act of God' and one on 'unavoidable accident' results in unwarranted emphasis on defense contentions. The human tendency to attribute success to self and failure to fate has not achieved the status of an exculpatory rule of...