Paxton v. Alameda County

• Decision Date: 28 July 1953
• Docket Number: No. 15382,15382
• Citation: 119 Cal.App.2d 393,259 P.2d 934
• Court: California Court of Appeals Court of Appeals
• Parties: PAXTON v. ALAMEDA COUNTY et al.

Page 934

259 P.2d 934

119 Cal.App.2d 393

PAXTON v. ALAMEDA COUNTY et al.

No. 15382.

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

July 28, 1953.

Rehearing Denied Aug. 27, 1953.

Hearing Denied Sept. 24, 1953.

Gardiner Johnson, John A. Sproul, San Francisco, for appellants, Kent & Hass, Thomas J. Kent and Andrew T. Hass.

Robert E. Burns, Crimmins, Kent, Draper & Bradley, San Francisco, for California Council of Architects, as amicus curiae, on behalf of appellants Thomas J. Kent, Andrew T. Hass and Kent & Hass.

Donahue, Richards, Rowell & Gallagher, James E. Gallagher, Joseph T. Richards, Oakland, J. F. Coakley, Dist. Atty., R. Robert Hunter, Asst. Dist. Atty., Richard H. Klippert, Deputy Dist. Atty., Oakland, for appellant Alameda County.

Anderson & Peck, Milner J. Anderson, Edward F. Peck, Gordon W. Nelson, Oakland, for respondents.

FRED B. WOOD, Justice.

Amos Paxton was injured while applying a tar and gravel surface to the roof of a livestock pavilion which was in course of construction at Alameda County Fair Grounds. He was carrying two 50-lb. buckets of hot tar along the roof toward the place of intended application. At a certain point the sheathing under his left foot gave way. He fell through up to his thigh, sustaining injuries to his left arm, wrist and hand from the spilling of hot tar. He was in the employ of a roofing sub-contractor at the time. He brought this action and recovered judgment for $25,000 against the County of Alameda and against Andrew T. Hass and Thomas J. Kent, individually and as copartners, the architects who designed the pavilion and prepared the plans and specifications for it. The defendants have appealed.

As to the architects, plaintiff claims that Hass was negligent in specifying 1"' X 6"' sheathing with a spread of 30"' between the rafters, that such was too thin a covering for such a span, resulting in a dangerous and defective condition for workmen who were to apply the tar and gravel surface, facts which Hass knew or should have known.

As to the county, plaintiff claims that it was equally negligent in this respect because its governing body, the board of supervisors, approved the plans and specifications; additionally, that a considerable amount of sheathing of lower grade than specified was actually used and the county was chargeable with notice thereof through agents appointed by it to supervise and inspect the work of construction as it progressed.

In support of the appeals the several defendants and the California Council of Architects as amicus curiae advance various points which present the following issues: (1) Does the evidence sustain the implied finding that the defendants were negligent? (2) Was the failure of the general contractor to comply with the specifications as to the grade of lumber used a supervening act which broke the causal connection? (3) Did plaintiff fail to exercise due care for his own safety? (4) Were the damages awarded excessive in amount? (5) Did the trial court commit prejudicial error (a) by allowing the county to cross-examine defendant Hass, (b) by, assertedly, refusing to permit inquiry concerning plaintiff's second injury, and (c) by giving its instruction to the jury concerning future losses?

(1) Does the evidence sustain the implied finding that the defendants were negligent?

As to the architect, ¹ the issue is framed by the allegations of the complaint that the plans and specifications were so carelessly and negligently drawn that they called for construction and use of materials that were unsafe and dangerous and that the construction based thereon was dangerous and unsafe 'in that the materials specified * * * for the sheathing thereon was of insufficient strength to support workmen such as plaintiff who would go thereon.'

The test used during the course of the trial for determination of the negligence, if any, of the defendant architects is reflected by the instruction thereon to which none of the parties has taken exception: 'By undertaking professional service to a client, an architect impliedly represents that he possesses, and it is his duty to possess, that degree of learning and skill ordinarily possessed by architects of good standing, practicing in the same locality. It is his further duty to use the care ordinarily exercised in like cases by reputable members of his profession practicing in the same locality; to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed. * * * In determining whether the defendants architects' learning, skill and conduct fullfilled the duties imposed by law, as they have been stated to you, you are not permitted to set up arbitrarily a standard of your own. The standard is that set by the learning, skill and care ordinarily possessed and practiced by others of the same profession in the same locality, at the same time. It follows, therefore, that the only way you may properly learn that standard is through evidence presented in this trial by other persons in the field of architecture, called as expert witnesses. * * * Accordingly, in considering your verdict as to the liability of the defendants architects, you are entitled to consider only evidence, if any, which would support that specific charge of alleged negligence, namely, the charge that said architects were negligent in specifying sheathing of insufficient strength to support the workmen who would go on it.'

The plans and specifications called for Douglas Fir select, merchantable, seasoned sheathing 1"' X 6"' (sized four sides, making a net dimension of 25/32"' X 5 5/8"') laid solid horizontally across the rafters and nailed with two nails at each bearing; the rafters to be 2"' X 4"' spaced 32"' apart measured from center to center.

The only testimony which tended to indicate negligence in the specification of the materials was that of Guy L. Rosebrook. ² He testified that he was and had been a licensed architect for 25 years, engaged in drawing plans and specifications for 35 years. He had done buildings of every kind; about 150 millions worth in the last ten years; his practice was all over the United States, including Alameda County; he happened to live in Alameda County and had an office in Oakland. He had been at the County Fair Grounds; had been through this building but did not pay any attention to its construction. He was familiar with the custom and practice of good building in the County of Alameda. He was shown photographs of the pavilion (Exhibits 1, 2, 4, and 5; Exhibits 4 and 5 portrayed the rafters and the sheathing from the inside of the building looking upward). He was not shown the plans and specifications.

In response to the hypothetical question 'If you are determining custom and good practice in building, if I told you there was a 32 inch span between the refters of 1 by 6 inches--1 inch by 6 inch sheathing, would that be good building practice in the County of Alameda?' (Objected to as not a correct statement of the facts in evidence), he said 'If I understand your question correctly, the rafters are spaced 32 inches on centers and the 1 X 6 is 30 inches--no, it is not good practice. I have never seen it done in the 35 years of my business.'

Defendants claim that this question and answer amounted to the expression of an opinion that it is not good practice to lay 1"'X6"' sheathing (across a 30"' span) with the sheathing boards 30"' apart instead of being laid solid, edge to edge. Such an interpretation is literally possible but the questions and answers which followed convince us that the witness' opinion was predicated upon sheathing laid solid, edge to edge, across the rafters, and that the jury and the trial judge so understood him.

We observe that this hypothetical question failed to include, as an element, the type or grade of the lumber (Douglas Fir, select merchantable) which the specifications called for. That left open the possibility that Rosebrook had in mind roofing boards of a tensile strength much lower than specified. However, later on he said that examination of the plans and specifications would be of no help to him in determining the safety of 25/32"' X 5 5/8"' sheathing with a thirty inch span; that he based his opinion upon sheathing of those dimensions with that span between the rafters. In effect he said that, under those circumstances, lumber of the highest tensile strength would be unsafe.

Rosebrook further testified that he would not consider that such construction would provide a safe place for roofers to walk upon. He would consider it dangerous. He would consider it safe if one used 2"' sheathing instead of 1"'. He had never seen a 32"' span on a house; 24"' is common, usual practice. The F.H.A. will not permit any further spanning on any house. The 24"' span is not limited to homes; it applies to any roof; 24"' is the customary spacing for rafters. He would not know if there were any other buildings in Alameda County that had a 32"' span. There might be such.

His attention was directed to the fact that the county building ordinance permitted 2"' X 4"' rafters to be spaced 12, 16, 24, or 32 inches apart. He asked what kind of sheathing did the ordinance specify for those several spacings, but did not receive an answer. In his opinion, for a 30"' span, 2"' sheathing instead of 1"' would be safe. He apparently had no basis for his opinion as to safety except what he termed 'customary practice.' Asked how he would go about determining the type of material which could be employed when the rafters are placed on 32"' centers, he replied, 'In the first place, that isn't customary practice' and 'I would have no reason to figure it because we just don't do it.'

The legal significance of Rosebrook's testimony can best be determined if first we review the pertinent testimony of the other expert witnesses in the case.

De...