Stewart v. Wahlstrom Bros., Inc.
| Decision Date | 02 December 1960 |
| Citation | 9 Cal.Rptr. 412 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ralph E. STEWART and June D. Stewart, husband and wife, Plaintiffs and Respondents, v. WAHLSTROM BROS., INC., a California corporation, et al., Defendants. Lewis Cox, Defendant and Appellant. Civ. 24458. |
Warner, Sutton & Warner, Los Angeles, for appellants.
Max Candiotty, Los Angeles, for respondent.
Respondent sued appellant Cox and others, including Wahlstrom Bros., Inc. (hereinafter referred to as Wahlstrom), Skinner and Skinner Pool Plastering Inc. for damages arising from the negligent construction of a swimming pool. In May, 1957, Wahlstrom, a general contractor, entered into a written contract with respondents for the construction of a pool; appellant Cox was the subcontractor who poured the concrete for Wahlstrom; defendants Skinner were the plasterers. Prior to trial Wahlstrom paid respondent $4,500 and a dismissal was entered; after the commencement of the trial, upon payment of $750, the case was dismissed against the Skinner defendants. Judgment was rendered against appellant Cox for $19,224, taking into account the $5,250 paid by the other defendants. Cox appeals from the judgment and order denying his motion for new trial.
The evidence shows that on June 28, 1957, appellant did the gunite work on the pool and that he performed the same 'negligently, unskillfully, recklessly, unlawfully, and in an unworkmanlike manner' ( IV), in that--the concrete was poured too thin and in such a manner that the steel rested on the ground causing it not to be imbedded in, and not to properly reinforce the concrete, resulting in a pool too weak to withstand the water pressure; and further, that the negligence of appellant caused cracks of a structural nature in the concrete permitting water to escape undermining the earth and damaging the pool, cement deck, yard, yard improvements and portions of the house. On the issue of damages the parties entered into a trial stipulation concerning the various items, totalling $24,474.
Appellant extensively argues that Wahlstrom had 'full undisputed knowledge that the pool had failed, cracked and leaked' and that this, together with Wahlstrom's inspection and repairs of the pool during the two months prior to the final pool failure on November 2, 1957, operated as an intervening agency absolving appellant from liability (A.O.B. p. 5); and in support of his position submits certain evidence that after the pool was finished and filled (August, 1957) respondents advised Wahlstrom a crack had appeared and there was a water loss of approximately 2 inches daily, that at the end of September Wahlstrom sent a representative of Skinner Pool Plastering Inc. to check the plaster and repair the crack, that the latter emptied the pool, patched the crack with plaster and refilled the pool, that immediately thereafter the same crack, wider and longer, and several others appeared, and that Wahlstrom was advised and knew of the reappearance of the crack and subsequent leakage up to the failure of the pool on November 2, 1957, when several feet of water suddenly disappeared and Wahlstrom ordered it drained.
Appellant's contention raises the issue of proximate cause. Whether a plaintiff has sustained the burden of establishing that defendant's negligence was the proximate cause of his injury is normally for the trier of fact (Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12; Hilyar v. Union Ice Co., 45 Cal.2d 30, 286 P.2d 21; Hill v. Matthews Paint Co., 149 Cal.App.2d 714, 308 P.2d 865); and before it can be held, as a matter of law, that want of proximate cause exists, the evidence must point unerringly to that conclusion. Bady v. Detwiler, 127 Cal.App.2d 321, 273 P.2d 941; Merlino v. Southern Pacific Co., 132 Cal.App.2d 58, 281 P.2d 583. We find nothing in the record to justify our treatment of the issue of proximate cause before us as one of law.
In accord with his prerogative and duty to find the facts, the trial judge, after finding appellant Cox negligent ( IV), found 'that as a direct and proximate result' of that negligence, water escaped causing damage to the pool and premises. Finding V. Thus, at this point the issue is whether there is substantial evidence to support the trial court's finding of proximate cause; if there is, the finding will not be disturbed. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183. In this connection, we view the evidence in the light most favorable to the respondents (Primm v. Primm, 46 Cal.2d 690, 299 P.2d 231; Grainger v. Antoyan, 48 Cal.2d 805, 313 P.2d 848) and resolve all reasonable inferences in favor of the finding and judgment. Burke v. Chrostowski, 46 Cal.2d 444, 296 P.2d 545; McCarthy v. Tally, 46 Cal.2d 577, 297 P.2d 981; McCreary v. Mercury Lumber Distributors, 124 Cal.App.2d 477, 268 P.2d 762. With the foregoing rules in mind, we deem the finding of proximate cause to be supported by ample evidence, and to be proper.
Extensive testimony included that of numerous experts and is too lengthy to review in any detail, but it is apparent from the evidence that although Mrs. Stewart did, on numerous occasions, inform Wahlstrom that a crack had appeared and there was some water loss, it is likewise apparent that Wahlstrom had reason to and did believe it to be a harmless surface crack. The evidence shows that surface cracks in plaster are usual in pool construction and it is the common practice in the trade for the contractor to send a repair man to plaster patch them; that even experts are unable to determine from normal visual inspection if a crack is structural or surface; and that Wahlstrom, after the usual inspection determined it to be only a surface crack which would not cause a pool failure. The evidence simply does not bear out appellant's position that Wahlstrom had 'full undisputed' or any knowledge that the pool 'had failed' prior to November 2, 1957.
Relative to Wahlstrom's diagnosis that it was only a surface crack, all experts (including appellant) agreed that one cannot determine by the normal visual inspection whether a crack is structural or surface. Nevertheless such inspection is the common and usual method of dealing with cracks appearing in the plaster. According to Mrs. Stewart, although the width of the crack was visible, it was not measurable; and Carl Stokes testified that when he first saw it around the end of September it was short about a foot and a half long. It is recognized among the experts who testified that cracks occurring in the plaster, referred to as surface cracks, are quite common and may be caused by a variety of factors--inclusions, a foreign substance in the plaster, a valve at the bottom of the pool, a leak around a piping not set tight, differential settlement, and so on; and the same experts agreed with appellant Cox, who testified that '(Y)ou can't look at a crack and tell whether it is structural or not.' Stokes, who repaired the crack for Wahlstrom, also testified that one could not tell just by looking at a crack whether it is structural or otherwise; as did Joseph L. Randall, Assistant Building Superintendent of the City of Burbank and a licensed engineer. As to water loss, many factors other than a crack can cause it. Leakage of even 2 inches in a 24-hour period, according to the witness Skinner, although unusual, does not necessarily indicate water is escaping through a crack, but does indicate an open valve on the backwash, a punctured plumbing line or some defect in the pool, or that a large crowd of people have been using it. Randall testified that 'it can be any number of small things which cause it (water loss),' as did Stokes, 'that water may be going to other places than a crack.'
During the several months prior to November 2 (the day the water loss suddenly increased) Wahlstrom, after the normal visual inspection common in the trade, believed it to be a surface crack in the plaster, treated it as such, and so notified Skinner--there is a 'crack in the pool * * * a crack in the plaster,'--and asked him to go out and repair it. Skinner sent Stokes who drained the pool and, with two Wahlstrom employees, inspected the crack. Wahlstrom, having diagnosed it and believing it to be a surface crack, ordered him to repair the plaster.
Cracks appearing in pool construction are quite usual; and Randall testified that it is common practice where cracks show up to repair them, and an engineer is not called unless the repair fails, and that This is exactly what Wahlstrom asked Stokes to do and what the latter did to repair the crack in respondents' pool.
Factually, any contention that 'knowedge of general contractor (Wahlstrom) of pool failure operated as intervening agency' (A.O.B. p. 5) falls inasmuch as although the evidence discloses Wahlstrom knew a crack existed and there was some water loss, it does not reveal that prior to November 2, when the failure actually occurred and the pool was drained, Wahlstrom had any knowledge or even reasonably should have had any knowledge that a 'pool failure' existed or the crack was a structural one which could cause damage. Nevertheless, appellant claims that such knowledge and Wahlstrom's knowledge of the cracks and leakage, together with its inspection and repairs of the pool two months before the pool failure on November 2, 1957, operated as an intervening agency. Nor can such contention legally be sustained. The commonplace nature of surface...
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