Roberts v. Permanente Corp.

• Decision Date: 26 January 1961
• Citation: 188 Cal.App.2d 526,10 Cal.Rptr. 519
• Parties: Urban H. ROBERTS and Juanita P. Roberts, Plaintiffs and Appellants, v. PERMANENTE CORPORATION, Defendant and Respondent. Civ. 18251.
• Court: California Court of Appeals Court of Appeals

Page 519

10 Cal.Rptr. 519

188 Cal.App.2d 526

Urban H. ROBERTS and Juanita P. Roberts, Plaintiffs and Appellants, v. PERMANENTE CORPORATION, Defendant and Respondent.

Civ. 18251.

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

Jan. 26, 1961.

Rehearing Denied Feb. 24, 1961.

Augustus Castro, Cooley, Crowley, Gaither, Godward, Castro & Huddleson, Thomas A. H. Hartwell, San Francisco, for appellants.

Thelen, Marrin, Johnson & Bridges, San Francisco, for respondent.

SHOEMAKER, Justice.

Plaintiffs since 1942 have owned and resided in a home located in Los Altos approximately one mile to the north of a cement plant and quarry owned and operated since 1939 by defendant Permanente Cement Company. On December 29, 1954, plaintiffs brought this action to recover damages which they complain were suffered by them by reason of the operation of the cement plant and quarry in such a manner that dust and other substances escaped therefrom, settled on their property, and not only physically damaged it but also deprived them of their use and enjoyment thereof.

The defendant's answer admitted the ownership and operation of the cement plant and quarry, but denied liability for any damage plaintiffs claim to have suffered, and particularly alleged that they were conducting their operation in an area zoned therefor, and that they hold a permit from Santa Clara County authorizing their activities in which they have reasonably and properly engaged.

The case proceeded to trial before a jury and a verdict was returned in favor of the defendant, and from the judgment entered thereon plaintiffs appeal. (The first count of the complaint sought an injunction. This phase of the case was tried by the court and judgment was rendered denying the injunction. This aspect of the action ended there.)

We do not recite the conflicting evidence as to the dust, wind currents, atmospheric conditions, the discoloration of brick and other matters at issue between the parties, for there is no dispute but that, depending upon which testimony was believed, a judgment in favor of either party would have been supported.

Respondent's plant was located in a zone which permitted its operation. It comes within the protection of section 731a of the Code of Civil Procedure which, subject to certain exceptions, generally provides that where a manufacturing or commercial operation is permitted by local zoning, no private individual can enjoin such an operation. It has been determined, however, that this section does not operate to bar recovery for damages for trespassory invasions of another's property occasioned by the conduct of such manufacturing or commercial use. Kornoff v. Kingsburg Cotton Oil Co., 1955, 45 Cal.2d 265, 271, 288 P.2d 507; McNeill v. Redington, 1944, 67 Cal.App.2d 315, 319, 154 P.2d 428.

The appellants argue that error has been committed by the trial court warranting reversal of the judgment by (1) the giving of certain instructions, (2) failing to submit to the jury the issue of exemplary damages, (3) admitting into evidence respondent's exhibit 'L', and (4) the exclusion of certain evidence proffered by appellants.

The appellants first point out that in giving respondent's instructions numbered 2, 14, 15 and 19, the court erred in that it told the jury that in the absence of negligence respondent was not liable for damages caused by a continuous trespass unless there was an intent to harm on the part of respondent. As we examine the instructions, we find no error in Instruction No. 2, for it merely told the jury that the factual issues for them to determine were whether respondent operated so as to intentionally or negligently invade appellants' property or rights therein ¹; Instruction No. 15 correctly stated that doing an act with knowledge at the time that there is a substantial certainty that it will result in entry of foreign matter on another's property is an intentional trespass ²; Instruction No. 19 told the jury a use of land which inevitably causes loss to his neighbor is not in itself the basis of negligence ³, which is a correct statement of the law. Instruction No. 14, however, did tell the jury that there had to be either negligence or an 'intent to cause damage or injury' for liability. ⁴ In other words, that to impose liability in the absence of negligence they would be required to find an 'intent to harm.' This is not the law. The doing of an act which will to a substantial certainty result in the entry of foreign matter upon another's land suffices for an intentional trespass to land upon which liability may be based. (Kornoff v. Kingsburg Cotton Oil Co., supra; Rest., Torts, § 158.) It was error to instruct the jury that an 'intent to harm' was required. Dandoy v. Oswald Bros. Paving Co., 1931, 113 Cal.App. 570, 298 P. 1030. The jury was correctly instructed that doing an act with substantial certainty of entry sufficed for recovery in Instruction No. 15 (supra, footnote 2), and the question presented for our determination is whether the erroneous Instruction No. 14 (supra, footnote 4) was prejudicial. The record discloses that some time after the jury had begun its deliberations, it returned to court and asked whether respondent could be liable for damages without negligence. The court repeated four of its instructions, namely, Nos. 14 and 15 already discussed, and appellants' Nos. 4 and 7. ⁵ Instructions Nos. 4 and 7 properly state the law. However, No. 7 cannot be reconciled with the directions given the jury in Instruction No. 14. The confusion of the jury is apparent from the question asked, and the answer of the court did not dispel the confusion. Where the jury is both correctly and incorrectly instructed, and it cannot be determined from the record which of the conflicting instructions were followed in reaching the verdict, such constitutes prejudicial error, especially where, as here, the evidence is conflicting and the jury's confusion is apparent. Lane v. Pacific Greyhound Lines, 1945, 26 Cal.2d 575, 586, 160 P.2d 21; Hobart v. Hobart Estate Co., 1945, 26 Cal.2d 412, 447-449, 159 P.2d 958. We are convinced that the giving of the erroneous instruction was prejudicially erroneous.

The appellants next contend that it was prejudicial error for the court to refuse to submit their proposed instructions on exemplary damages to the jury. Such damages are recoverable only where the defendant has been guilty of oppression, fraud or malice, express or implied. Generally, the question of exemplary damages is for the trier of fact. Beckett v. City of Paris Dry Goods Co., 1939, 14 Cal.2d 633, 639, 96 P.2d 122; Sheward v. Magit, 1951, 106 Cal.App.2d 163, 167, 234 P.2d 708. Exemplary damages may be awarded where a trespassory invasion is done with an intent which is malicious. Griffin v. Northridge, 1944, 67 Cal.App.2d 69, 76, 153 P.2d 800. Viewing the evidence in a light most favorable to the appellants, we do not find any of the prerequisites that would support an allowance of exemplary damages, nor is there any evidence from which they might reasonably be inferred; hence it was not error for the court to refuse to instruct thereon. Moore v. Pacific Coast Steel Co., 1915, 171 Cal. 489, 153 P. 912; Davenport v. Stratton, 1944, 24 Cal.2d 232, 254, 149 P.2d 4.

The appellants argue that the introduction of an exhibit entitled 'Study, San Antonio Hills, Inc., Air Pollution Complaint, 1955-1956, by the Santa Clara County Health Department, Santa Clara County Air Pollution Control District', constituted prejudicial error in that the report was inadmissible hearsay containing conclusions and opinions. Part of the report was read into evidence. The report purportedly covers an investigation of cement dust in the surrounding area made at the request of residents therein. It reviews the operations at the cement plant and nearby Neary Quarry. It concluded that the dust falling on local roofs was more likely to be quarry dust than cement dust, and set forth statements allegedly made by Neary, manager of the quarry, to the effect that the operation there by the former owners was not proper and created excessive dust, as well as conversations of respondent operator as to the steps it was taking to reduce outflow of cement dust. The report advised that respondent had one of the best cement plants in existence with regard to low atmospheric discharges, although some dust was discharged.

The preceding recitation of content shows the report clearly is hearsay, abounding in opinions and conclusions. The first question raised with regard to the report is whether it is excepted under Code of Civil Procedure, section 1920, as a public record. The Clerk of the Board of Supervisors for Santa Clara County brought the report to the court, and testified that it was part of the public records of the county. But, to be excepted, the records must be made by an official pursuant to governmental duty. Pruett v. Burr, 1953, 118 Cal.App.2d 188, 201, 257 P.2d 690; Reisman v. Los Angeles City School Dist., 1954, 123 Cal.App.2d 493, 506, 267 P.2d 36. The record is devoid of any evidence which indicates it was the duty of the County Health Department to investigate such alleged air pollution, or more important, record its findings pursuant to investigation. There is nothing in the Health and Safety Code, sections 24198-24341, dealing with Air Pollution Control Districts, which indicates the presence of such a duty. (See especially § 24260, Powers of control board; § 24212, Powers of district; § 24224, Duties of control officer.) Finding no duty on the agency to investigate or make this report, we conclude that it is not a public record within the meaning of Code of Civil Procedure, § 1920, and its introduction into evidence was error. Whether its admission was prejudicial we need not decide.

Appellants contend the court erred in excluding testimony relating to purported recommendations made by respondent's representatives...