Jones v. City of South San Francisco

• Decision Date: 13 March 1950
• Citation: 96 Cal.App.2d 427,216 P.2d 25
• Court: California Court of Appeals Court of Appeals
• Parties: JONES et al. v. CITY OF SOUTH SAN FRANCISCO et al. Civ. 14221.

Page 25

216 P.2d 25

96 Cal.App.2d 427

JONES et al. v. CITY OF SOUTH SAN FRANCISCO et al.

Civ. 14221.

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

March 13, 1950.

As Corrected March 29, 1950.

Elkins & Ross, Harold Elkins, Saul N. Ross, San Bruno, James F. Boccardo, San Jose, Charles R. Wayland, San Bruno, for appellants.

Millington, Dell'Ergo, Weeks & Morrissey, Redwood City, for respondents.

PETERS, Presiding Justice.

Plaintiff Lois Margaret Jones (now Mrs. Gordner), then a minor, and plaintiff George K. Gordner, Jr. (now the husband of Lois) received serious injuries when hit by an automobile driven by defendant Genevieve Iverson (now Mrs. Finsterbusch) in South San Francisco. In addition to Miss Iverson, the City was joined as a defendant on the theory that it, with knowledge of the condition, so negligently maintained the street and highway at the scene of the accident that the sidewalk and street were flooded, thus requiring plaintiffs, who were walking on the sidewalk area, to leave the sidewalk and walk in the street, where they were hit.

At the close of plaintiffs' case, the City moved for a nonsuit on the grounds first, that, assuming the City was negligent, such negligence, as a matter of law, was not a proximate cause of the accident, and secondly, that the evidence showed contributory negligence on the part of the plaintiffs as a matter of law. Defendant Iverson moved for a nonsuit on the contributory negligence ground. The trial court denied the Iverson motion, but granted the nonsuit in favor of the City, stating that the motion was granted on the ground that the negligence of the City, if any, was not, as a matter of law, a proximate cause of the accident. The jury returned verdicts in favor of plaintiffs against defendant Iverson. The plaintiffs appeal from the judgment of nonsuit in favor of the City.

At the threshold of this appeal we are met by the contention of the City, raised for the first time on appeal, that the nonsuit should be sustained for the reason that, under sections 5640 and 5641 of the Streets and Highways Code, a City is not liable for knowingly maintaining defective streets and sidewalks, even where the defective condition is the proximate cause of an injury to a person not guilty of contributory negligence. The City may properly urge this defense, although it was not mentioned to or considered by the trial court. 'The correct rule is that grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion.' Lawless v. Calaway, 24 Cal.2d 81, 94, 147 P.2d 604, 610. The defect here claimed, if it existed, is of the type that could not have been remedied had it been called to the attention of appellants. This being so, respondents may properly raise the contention.

Before discussing the facts, therefore, we turn to a discussion of this point of law, because, if sound, it is a complete defense to the City, regardless of the facts.

The contention that a city is not liable to a person injured because of the defective condition of a public street allowed to exist after the city has knowledge of the condition, is a somewhat startling one. There are many cases in the books where liability has been imposed in such circumstances, without any reference, however, to sections 5640 and 5641 of the Streets and Highways Code, but decided after those sections were placed in that code. These cases have held that a municipality is liable for the defective condition of its street and sidewalks where the city has actual or constructive knowledge of the defective condition. See, for example, Warren v. City of Los Angeles, 91 Cal.App.2d 678, 205 P.2d 719; Fackrell v. City of San Diego, 26 Cal.2d 196, 157 P.2d 625; 158 A.L.R. 773; Kirack v. City of Eureka, 69 Cal.App.2d 134, 158 P.2d 270, and cases cited therein. All of these cases were incorrectly decided if the contention now made by the City is sound.

Liability in such cases is predicated on the Public Liability Act of 1923, Stats. of 1923, p. 675; Deering's Gen. Laws, Act 5619. Paragraph two of that statute reads as follows: 'Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.'

The sections of the Streets and Highways Code relied upon by the City to free it from liability were added to that Code in 1941. Stats. of 1941, Chap. 79, p. 877. Section 5640, entitled 'Immunity of city' reads as follows: 'If, because any graded street or sidewalk is out of repair and in condition to endanger persons or property passing thereon, any person, while carefully using the street or sidewalk and exercising ordinary care to avoid the danger, suffers damage to his person or property, through any such defect therein, no recourse for damages thus suffered shall be had against the city.'

Section 5641 provides who may be held liable, using the following language: 'If the defect in the street or sidewalk has existed for a period of 24 hours or more after written notice thereof to the superintendent of streets, then the person on whom the law may have imposed the obligations to repair such defect in the street or sidewalk, and also the officer through whose official negligence such defect remains unrepaired, shall be jointly and severally liable to the party injured for the damage sustained; provided, that the superintendent of streets has the authority to make the repairs, under the direction of the legislative body, at the expenses of the city.'

These 1923 and 1941 statutes appear to be, and probably are, inconsistent. A consideration of their history and background, however, demonstrates to a certainty that where conflicting, the 1923 statute controls.

Sections 5640 and 5641 of the Streets and Highways Code were not enacted for the first time in 1941. In substance, they have been in our law since 1911 when the Improvement Act of 1911 was first passed. Stats. of 1911, Chap. 397, p. 730. Section 39 of that statute, Stats. of 1911 at p. 750, provided: 'If, in consequence of any graded street or public highway or sidewalk, being out of repair and in condition to endanger persons or property passing thereon, any person, while carefully using said street or public highway, or sidewalk and exercising ordinary care to avoid the danger, suffer damage to his person or property, through any such defect therein, no recourse for damages thus suffered shall be had against such city; but if such defect in the street or public highway shall have existed for the period of twenty-four hours or more after written notice thereof to the said superintendent of streets, then the person or persons on whom the law may have imposed the obligations to repair such defect in the street or public highway, and also the officer or officers through whose official negligence such defect remains unrepaired, shall be jointly and severally liable to the party injured for the damage sustained; provided, that said superintendent has the authority to make said repairs, under the direction of the city council, at the expense of the city.' Between 1911 and 1941 this section was never expressly amended. In 1941 the section was simply codified, and without substantial change placed in the Streets and Highways Code as the two sections above quoted, and section 39 of the 1911 act was repealed.

In 1940, it was expressly held that section 39 did not operate so as to relieve cities from liability created by the 1923 act. In Ackers v. City of Los Angeles, 40 Cal.App.2d 50, at page 53, 104 P.2d 399, 400, appears the following: 'Defendant contends that a city is not liable for the defective condition of its sidewalks, basing its argument upon the fact that by section 39 of the Improvement Act of 1911, St. 1911, p. 750, municipalities were exempted from liability to persons using a 'street or public highway, or sidewalk * * *'. It is pointed out that the Public Liability Act of 1923, St. 1923, p. 675, § 2, makes cities liable for the 'defective condition of public streets, highways, buildings, grounds, works and property * * *' without specifically mentioning sidewalks. We need not give serious consideration to defendant's contention nor the plaintiff's argument that the Act of 1923 repealed section 39 of the Act of 1911 and that the term streets includes sidewalks (19 Cal.Jur. 16), for the reason that cities have been held liable for the defective condition of sidewalks in so many cases since the enactment of the Act of 1923 that it must be considered as settled law in California that the Public Liability Act of 1923 includes injuries resulting from the defective condition of sidewalks.'

The decision of this case is undoubtedly sound. In 1911 cities in California were not liable for torts committed while acting in a governmental capacity. The first part of section 39 of the Improvement Act of 1911 merely restated that common law principle. The second part of the section imposed a personal liability upon certain city officials if they failed to repair. Section 39 was the law until 1923, when the Public...