Wardrop v. City of Manhattan Beach

• Decision Date: 26 May 1958
• Parties: Eva Jane WARDROP, a minor by Ebell Wardrop, her Guardian ad litem, George C. Wardrop and Ebell Wardrop, Plaintiffs and Appellants, v. CITY OF MANHATTAN BEACH, a municipal corporation, Ray Baker, B & B Development Corp., a corporation, Frank A. Barso and Harry Barron, individually and as co-partners doing business under the fictitious firm name and style of B & B Homes, Frank A. Barso and Harry Barron, individually and as co-partners doing business under the fictitious firm name and style of B & B Construction Co., Defendants. Frank A. Barso, Harry Barron, Roy Baker, B & B Homes and B & B Construction Company, Respondents. Civ. 22599.
• Court: California Court of Appeals Court of Appeals

Page 15

326 P.2d 15

160 Cal.App.2d 779

Eva Jane WARDROP, a minor by Ebell Wardrop, her Guardian ad litem, George C. Wardrop and Ebell Wardrop, Plaintiffs and Appellants, v. CITY OF MANHATTAN BEACH, a municipal corporation, Ray Baker, B & B Development Corp., a corporation, Frank A. Barso and Harry Barron, individually and as co-partners doing business under the fictitious firm name and style of B & B Homes, Frank A. Barso and Harry Barron, individually and as co-partners doing business under the fictitious firm name and style of B & B Construction Co., Defendants.

Frank A. Barso, Harry Barron, Roy Baker, B & B Homes and B & B Construction Company, Respondents.

Civ. 22599.

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

May 26, 1958.

Rehearing Denied June 23, 1958.

Hearing Denied July 23, 1958.

Gray, Glass & Allen, Gardena, and Martin, Hahn & Camusi, Los Angeles, for appellants.

Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.

WHITE, Presiding Justice.

Plaintiffs instituted this action against defendants to recover damages for crippling injuries sustained by minor plaintiff Eva Jane Wasdrop, in contracting bulbar poliomyelitis from fecally contaminated waters allegedly contained in an open sump in the vicinity of plaintiffs' home. Prior to trial, the action was dismissed as to all defendants except Harry Barron, Frank A. Barso doing business as B & B Homes, a co-partnership, and Roy Baker.

The complaint contains six causes of action, the first three of which are on behalf of minor plaintiff, and the first of which alleges the existence of a nuisance occasioned by the mere maintainance of the aforesaid sump. The second alleges a trespass by the intentional pumping of the sump water into the backyard of plaintiffs' home where, it is alleged, the minor plaintiff came into direct contact with said water. The third cause of action is predicated on the alleged negligent maintenance of the sump and its contents.

The first, second and third causes of action on behalf of the adult plaintiffs, parents of the minor plaintiff, are based, respectively, on the three causes of action brought on behalf of the minor plaintiff, and by them, the adult plaintiffs seek to recover special damages for hospital and medical expenses incurred for the care of minor plaintiff.

At the outset of the trial the first cause of action on behalf of all plaintiffs, founded on a claimed nuisance by reason of the mere maintenance of the sump, was dismissed.

The cause proceeded to trial before a jury. Upon conclusion of plaintiffs' case, the court granted a motion for nonsuit as to plaintiffs' third cause of action, based on negligence. A similar motion by defendants as to plaintiffs' second cause of action (trespass by the intentional pumping of the sump water into the backyard of plaintiffs' home) was denied, and when both sides had rested their case, the court denied defendants' motion for a directed verdict as to the second cause of action.

The jury returned verdicts in favor of the minor plaintiff in the amount of $54,000, and in favor of the adult plaintiffs, in the sum of $12,530.49. Judgment on the verdicts was accordingly entered. Thereafter, defendants filed written notice of motion for judgment notwithstanding the verdict (alternative or under Code Civ. Proc., secs. 629 and 659), and defendants also filed their notice of intention to move for a new trial. The court granted the motion for judgment notwithstanding the verdict. As to the motion for a new trial, the minute order thereon reads: 'No action is taken by the Court on Defendants' Motion for New Trial herein'. The trial judge stated: 'I am going to say this, counsel. I am going to bring an end to this lawsuit. If the Supreme Court holds that there is sufficient evidence to take this case and uphold the verdict, then I am going to go along with the jury. So I will not make any order granting the motion for new trial, if the order non obstante is reversed. If the Supreme Court holds that the evidence is sufficient under this record to take the case to the jury, then I am going to hold that the jury found properly. In my opinion, the record on proximate cause is devoid of evidence, for the reasons I have stated, but if my reasoning is wrong, then the jurors' verdict is correct.'

Judgment vacating the former judgment entered on the verdict and granting judgment notwithstanding the verdict was thereupon entered. From such judgment plaintiffs prosecute this appeal.

Concerning the factual background surrounding this litigation the record reflects that plaintiffs George C. Wardrop and Ebell Wardrop are husband and wife and the parents of the minor plaintiff Eva Jane Wardrop and three other children ranging in age between 3 and 8 years. In June, 1954, the minor plaintiff herein, then within a month of her fourth birthday, was stricken with poliomyelitis. Plaintiff father is a welder by trade. In March, 1954, he, with his family established their home at 819 Meadows Avenue, Manhattan Beach, in Los Angeles County. They rented the home on a month-to-month tenancy from defendants Frank A. Barso and Harry Barron, doing business as B & B Homes. These defendants, doing business as a co-partnership, were engaged in the business of constructing tract houses in the Manhattan Beach area. The aforesaid house rented and occupied by plaintiffs, was one of the first constructed by B & B Homes. During the period here in question, defendant Roy Baker was employed as Superintendent for B & B Homes, which co-partnership had been in the building business since 1937 and continued to construct houses in the Manhattan Beach area until the latter part of 1954 or early in 1955. (Unless otherwise stated herein, use of the words 'defendants' or 'appellants' will indicate Frank A. Barso, and Harry Barron doing business under the name and style of B & B Homes.)

Approximately in February, 1953, defendants signed a bond with the City of Manhattan Beach, under the terms of which they agreed to excavate a sump at the rear of the property rented from them and occupied by plaintiffs, which excavation was to be 150 feet long, 50 feet wide and 6 feet deep. The sump was required as a condition to the construction by defendants of a tract of 65 homes just east of Meadows Avenue and across the street from the property rented by plaintiffs. The sump is located one and one-half miles from the ocean.

The sump was constructed in the lowest elevation in the neighborhood. From a survey of the area it is apparent that there is a bowl or saucerlike condition with the sump located in the lowest point thereof. This saucer-shaped area all drains into the lowest area where the sump is located. There was evidence that there was surface drainage from the surrounding area into the sump and that a considerable portion of the area surrounding the 65 homes naturally drained into the sump. All of the 65 houses were equipped with cesspools and there were no sewers in the area. Actual construction of the sump was commenced about December, 1953. It seems fair to state that defendants were required to construct the sump for the purpose of catching all waters in the drainage area, including the increased accumulation of water which would be caused by the construction of the aforesaid 65 homes. The theory of the sump was thus described by Frederick C. Butcher, City Engineer of the City of Manhattan Beach: (1) The sump would have a capacity to contain a certain amount of water and prevent the same from encroaching on and damaging private property in the vicinity. (2) In digging through the overlayer of impervious soil it was felt that a more sandy soil would be reached, thus permitting more adequate drainage and percolation of water from the area. The sump was designed, stated Mr. Butcher, with the idea that it would reach soil coarse enough for water to seep away; that this was the original intention. But, for reasons not necessary here to narrate, the sump did not function as had been planned and on May 24, 1954, City Engineer Butcher advised defendants by letter that they would have to pump the water out of the sump and complete the installation of seepage pits; that the water in the sump could not evaporate or soak into the ground and was becoming stagnant; that complaints had been made to Mr. Butcher that the water was creating a stagnant odor and drawing flies and mosquitoes. Mr. Butcher concluded his letter with the statement: 'It is earnestly hoped that you will be able to wind this work up so that we can accept the improvements and therefore release you from your bond,'.

The seepage pits could not be installed until the water had been drained out of the sump. After receiving the letter of May 24, 1954, from the City Engineer, defendant Barso called the former and asked what could be done. Barso spoke to defendants Barron and Baker concerning this problem. Mr. Baker advised Mr. Barso that he, Baker, would pump the sump water out into the surrounding ground and Mr. Barso advised Mr. Baker to proceed to do so.

Plaintiff Mrs. Wardrop first observed Mr. Baker pumping the water from the sump into her backyard at approximately 8:00 a.m., Monday morning, June 14, 1954. The pumping went on for five days, from approximately 8:00 o'clock in the morning to 4:30 in the afternoon. Mrs. Wardrop asked Mr. Baker to stop pumping the water into her backyard, but Mr. Baker replied he had his orders. Mr. Wardrop also tried to stop the pumping of the water into the backyard with rather expressive words, but likewise failed. He spoke with defendant Barron the evening of June 14, and warned Mr. Barron that he was endangering the lives of the Wardrop children. Mr. Wardrop had advised Mr. Barron in the latter part of April that it would be wise to put fish in the sump to purify the water, and Mr. Wardrop did in fact put some catfish into the sump water thereafter. Baker testified that he was attempting to...