Green v. Smith

• Decision Date: 19 April 1968
• Citation: 67 Cal.Rptr. 796,261 Cal.App.2d 392
• Court: California Court of Appeals Court of Appeals
• Parties: Richard GREEN, Plaintiff and Appellant, v. Richard B. Smith et al., Defendants and Respondents. Civ. 8689.

Page 796

67 Cal.Rptr. 796

261 Cal.App.2d 392

Richard GREEN, Plaintiff and Appellant, v. Richard B. Smith et al., Defendants and Respondents.

Civ. 8689.

Court of Appeal, Fourth District, Division 2, California.

April 19, 1968.

Hearing Denied July 3, 1968.

Kinkle, Rodiger, Graf, Dewberry & Spriggs, Los Angeles, for defendants and respondents James R. Kirchnavy and William Kirchnavy, doing business as Kirchnavy Brothers.

Robert B. Holland, Orange, for defendants and respondents Richard B. Smith, Inc., Richard B. Smith and Richard B. Smith and Company.

OPINION

TAMURA, Associate Justice.

Plaintiff, a wholesale grower of ornamental nursery trees brought this action for damages for crop loss allegedly sustained by him by reason of defendants' destruction of a concrete irrigation pipeline. The complaint was in two counts--one based on intentional trespass and one on negligence. Following a non-jury trial the court found that defendants unlawfully and intentionally, though not maliciously, demolished the pipeline and that as a consequence plaintiff was unable to harvest nursery stock having an 'alleged market value in excess of $17,000.' However, it found that plaintiff could have avoided the loss by utilizing a substitute means of conveying water to the land at a cost of not more than $600 and, hence, limited plaintiff's recovery to a judgment for that sum against certain of the named defendants. Plaintiff appeals. ¹

Plaintiff contends that the court 'abused its discretion' in applying the doctrine of mitigation of damages. To state it more accurately his contention appears to be that on the findings made, the court erred in concluding that plaintiff failed to mitigate damages.

Plaintiff was the owner of a leasehold interest in a parcel of land on which he planted and grew, among other items, 110 rows of ornamental nursery trees, each row containing approximately 425 trees. A cement pipeline which he used to irrigate the trees and to water the ground preparatory to harvesting them ran along the northerly edge of the premises. Plaintiff's lease was due to expire on December 31, 1962.

On December 13, 1962, defendant Richard B. Smith, Inc. (Smith, Inc.), acquired title to the land, subject to the lease, and contracted with Kirchnavy Brothers, a partnership composed of defendants James R. Kirchnavy and William Kirchnavy, to clear the land for subdivision development. Some time in December 1962, pursuant to instructions from Smith, Inc., but without plaintiff's permission or consent, Kirchnavy Brothers demolished the pipeline.

In December, prior to the destruction of the pipeline, plaintiff had commenced harvesting the trees. The procedure required the trees to be cut by running a U-shaped blade, mounted on a tractor, through the ground at a depth of 18--24 inches. On December 26 plaintiff discovered that he was unable to continue harvesting because the soil had become too dry and hard to operate the cutter. He immediately attempted to irrigate the land by constructing a ditch along the site of the demolished pipeline, but because of a swale the berms failed to contain the water. After waiting for a few days to permit the soil to dry, he constructed a larger ditch with higher and thicker berms and was thereby able to convey water to approximately 19 rows which he subsequently harvested. However, because of the swale he was unable to convey water to approximately 25 rows. On January 8 or 9 he left the premises stating that he was unable to harvest the remaining 25 rows. As soon as plaintiff left the premises, defendants plowed under the remaining trees.

Defendants introduced evidence to show that plaintiff could have conveyed water to the remaining 25 rows at a cost not exceeding $600 either (1) by constructing a ditch with higher or thicker berms; (2) by renting portable irrigation equipment and connecting it to a standpipe located at the edge of the property; (3) by obtaining water from a city fire hydrant located near the property; (4) by obtaining water from a domestic water meter; (5) by requesting use of defendant's water tank trucks which were on the land for subdivision work. Plaintiff admitted that he had the financial ability to incur an expenditure of $600 for substitute service.

On the issue of mitigation the court found:

'Plaintiff's nursery stock was ready for market in December of 1962 and prior to the demolition of said pipeline plaintiff had commenced the harvesting of his nursery stock; from and after the date of demolition of said pipeline plaintiff was unable to irrigate his nursery stock preparatory to harvesting as he had done theretofore. That as soon as plaintiff discovered that the land was dry and his nursery stock could not be harvested without irrigating, he immediately thereafter with the use of his equipment and employees endeavored to irrigate said nursery stock through an open ditch or trench which he constructed along the site of the demolished pipeline; when this operation was unsuccessful as the open ditch or berm broke, plaintiff again endeavored to irrigate said nursery trees by constructing another ditch or trench higher and thicker than the previous one and upon turning the water thereon was able to irrigate 19 rows of nursery trees and subsequently harvested them, but because of a swale in the land the open ditch could not carry the water to the remaining 25 rows of nursery trees and the berm again collapsed--resulting in approximately 9300 trees having an alleged fair market value in excess of $17,000.00 from being harvested.

'That instead of using the open ditch or trench, plaintiff could have effected the delivery of the water to said remaining 25 rows of trees by other means at his disposal, to wit, from water available at a standpipe at the edge of said Minnick property by means of portable irrigation equipment or by installing a temporary line of water available from the City of Chino. Therefore, plaintiff's actual and real loss for which he is entitled to compensation was the cost of effecting the delivery of such water from other sources and the cost of said delivery would not have exceeded the sum of $600.00.'

From the findings the court concluded that defendants intentionally, though not maliciously, destroyed the pipeline and that as a result plaintiff sustained damages but that he 'failed to mitigate his damages as he was required to do.'

It has been the policy of the courts to promote the mitigation of damages. (Geddes & Smith, Inc. v. St. Paul Mercury Indem. Co., 63 Cal.2d 602, 605, 47 Cal.Rptr. 564, 407 P.2d 868; Jordan v. Talbot, 55 Cal.2d 597, 610, 12 Cal.Rptr. 488, 361 P.2d 20, 6 A.L.R.3d 161; Mabb v. Stewart, 147 Cal. 413, 417, 81 P. 1073.) The doctrine applies in tort, wilful as well as negligent. (See Kleinclaus v. Marin Realty Co., 94 Cal.App.2d 733, 739, 211 P.2d 582; Rest., Torts, § 919, com. a.) A plaintiff cannot be compensated for damages which he could have avoided by reasonable effort or expenditures. (Guerrieri v. Severini, 51 Cal.2d 12, 23, 330 P.2d 635; Valencia v. Shell Oil Co., 23 Cal.2d 840, 844, 147 P.2d 558; Schultz v. Town of Lakeport, 5 Cal.2d 377, 382--383, 54 P.2d 1110, 55 P.2d 485, 108 A.L.R. 1168; Murphy v. Kelly, 137 Cal.App.2d 21, 31, 289 P.2d 565.) The frequent statement of the principle in the terms of a 'duty' imposed on the injured party has been criticized on the theory that a breach of the 'duty' does not give rise to a correlative right of action. (Ellerman Lines, Limited v. The President Harding (2d Cir. 1961), 288 F.2d 288, 289--290; 5 Corbin, Contracts, § 1039, p. 242; 20 Am.Jur.2d 50.) It is perhaps more accurate to say that the wrongdoer is not required to compensate the injured party for damages which are avoidable by reasonable effort on the latter's part. (Ellerman Lines, Limited v. The President Harding, supra, at p. 290; 5 Corbin, Contracts, pp. 242--243; Restat., Torts, § 918; McCormick (1935) Damages, p. 127; see Murphy v. Kelly, supra, 137 Cal.App.2d 21, 31, 289 P.2d 565.) As Judge Friendly observed in Ellerman Lines, Limited v. The President Harding, supra, 288 F.2d at p. 290, the current phraseology of the principle may lead to sounder results than its statement in terms of a 'duty.'

The doctrine does not require the injured party to take measures which are unreasonable or impractical or which would involve expenditures disproportionate to the loss sought to be avoided or which may be beyond his financial means. (Jordan v. Talbot, supra, 55 Cal.2d 597, 611, 12 Cal.Rptr. 488, 361 P.2d 20; Valencia v. Shell Oil Co., supra, 23 Cal.2d 840, 846, 147 P.2d 558; Schultz v. Town of Lakeport, supra, 5 Cal.2d 377, 384, 54 P.2d 1110; Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 28, 276 P. 1017; 2 Witkin, California Law, p. 1608.) The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight. (Basin Oil Co. of Cal. v. Baash-Ross Tool Co., 125 Cal.App.2d 578, 602--603, 271 P.2d 122; McCormick, Damages, pp. 133--134; Sedgwick, Damages, § 221, p. 415.) The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. (Basin Oil Co. of Cal. v. Baash-Ross Tool Co., supra, at pp. 602--603, 271 P.2d 122.) 'If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.' (McCormick, Damages, p. 134.) The standard by which the reasonableness of the injured party's efforts is to be measured is not as high as the standard required in other areas of law. (See Ellerman Lines, Limited v. The President Harding, supra, 288 F.2d 288; McCormick, Damages, p. 134.) It is sufficient if he acts reasonably and with due diligence,...