Opinion
Page __
__ Cal.App.2d __249 P.2d 876CONNORv.GROSSO et al. Civ. 19054.California Court of Appeals, Second District, Third DivisionNov. 7, 1952.Hearing Granted Jan. 5, 1953.
Rehearing Denied Nov. 24, 1952.
W. F. Smith and Henry F. Walker, Los Angeles, for appellants.
Stanton, Stanton & Welbourn, and Louis B. Stanton, Los Angeles, for respondent.
VALLEE, Justice.
This action arose out of the tortious conduct of defendant Paul Grosso described in Herzog v. Grosso, Cal.App., 249 P.2d 869. In this case plaintiff had judgment for damages against defendants, husband and wife. Defendants appeal.
The causes were tried together and the two opinions should be read for a complete understanding of the facts.
A roadway, described as parcel 2, is owned by Mr. and Mrs. Herzog. An easement for road purposes is called parcel 3. Mr. and Mrs. Herzog are the owners of the dominant estate and defendants are the owners of the servient estate in the easement. Parcels 2 and 3 are on the side of a hill and constitute one road. Plaintiff, Mrs. Connor, and her deceased husband, in December, 1945, acquired a parcel of real property which lies immediately to the west of and abuts on parcels 2 and 3, and is at the bottom of a steep embankment. On July 10, 1950, plaintiff's husband signed and acknowledged a deed of the property to her. He died on July 13, 1950. Defendants, husband and wife, acquired their property in February, 1949. It lies immediately to the east of parcels 2 and 3. The court found that between August 1, and December 31, 1950, defendants 'with full notice of the ownership of said real property, [249 P.2d 878] and in disregard of the rights of plaintiff in and to said real property, maliciously, deliberately and wilfully, and with intent to prevent plaintiff from the use and enjoyment of said real property, dumped upon said real property of plaintiff 3184 cubic yards of dirt, rocks and other debris.' The court further found that in order to restore the property to its former condition, it will be necessary for the materials to be removed, and that the reasonable cost of removal, including slippage necessarily incidental thereto, is $4,362.08. Damages in that sum were awarded plaintiff.
The assignments of error are: 1) the evidence is insufficient to support any judgment against defendant Madolyn A. Grosso; 2) the evidence does not support the finding that defendants dumped 3,184 cubic yards on plaintiff's property, and that plaintiff was damaged in the amount of the cost entailed in removal of 3,184 cubic yards; 3) the evidence does not support the finding that 3,184 cubic yards of material were dumped on plaintiff's property by defendant Paul Grosso.
The first assignment of error must be sustained. The defendants are husband and wife. They acquired their property as joint tenants in 1949. There is no evidence that Mrs. Grosso dumped any material on plaintiff's property, or that she joined with her husband in any manner in the commission of the tortious acts done by him, or that he acted as her agent. There is no evidence or ratification or acceptance of the benefits, if there were any. The mere fact that she is the wife of the defendant Paul Grosso, and that they are joint tenants, is not sufficient to charge her with liability for his conduct. Goldman v. House, 93 Cal.App.2d 572, 576, 209 P.2d 639; Citizens State Bank v. Hoffman, 44 Cal.App.2d 854-855, 113 P.2d 221.
The cases relied on by plaintiff are not analogous. In each of them, there was some evidence that the wife actively participated in, or ratified, the act giving rise to the cause of action.
The cases relied on by plaintiff are: Martin v. Butter, 93 Cal.App.2d 562, 209 P.2d 636; Stegeman v. Vandeventer, 57 Cal.App.2d 753, 135 P.2d 186; Santa Cruz Rock Pavement Co., v. Lyons, 133 Cal. 114, 65 P. 329; Latta v. Da Roza, 100 Cal.App. 606, 280 P. 711, 281 P. 655; Hulsman v. Ireland, 205 Cal. 345, 270 P. 948.
The second and third assignments of error will be considered together. As we have stated, the court found that between August 1, and December 31, 1950, defendants dumped 3,184 cubic yards of material on plaintiff's property. Defendants' contention that this finding is without support in the evidence is well taken.
In 1944, the predecessor in interest of the parties, a Mrs. Schneider, made a road on the easement by bulldozing into the hill and dumping the earth over the embankment onto the property later acquired by plaintiff and her husband. Shortly after February, 1944, Mrs. Schneider caused a road to be made from the top of the hill on the property now owned by defendants to the easement, and dumped earth onto the property later acquired by plaintiff and her husband. In 1945, Mrs. Schneider caused the hillside abutting parcels 2 and 3 to be cut out and leveled and the earth dumped onto the property later purchased by plaintiff and her husband. About the same time, Mr. Herzog, the owner of parcel 2 and the easement, widened the then 10 to 12-foot road to 14 feet, by cutting into the side bank and dumping the earth down the embankment onto what later became plaintiff's property. This was done with the permission of the then owner of plaintiff's property, Mrs. Schneider. The evidence does not disclose the amount of earth dumped on the property by Mrs. Schneider or Mr. Herzog, but it must have been considerable. Between June 1, 1949, and August 1, 1950, defendant Paul Grosso dumped earth onto plaintiff's property; the evidence does not show how much.
An expert called by plaintiff testified that in November, 1950, the bottom of the fill of loose dirt on plaintiff's property was from 18.4 to 37.2 feet west of her property [249 P.2d 879] line, which is the west side of parcel 2, and the west side of part of parcel 3. He testified there were several fills, and that in April, 1951, there were 1,570 1/2 cubic yards in the last fill--the last material dumped onto plaintiff's property. The last fill was made by Grosso in September, 1950. Another expert called by plaintiff testified there were 3,184 cubic yards of filled ground west of plaintiff's east vertical property line. He testified it would cost $4,362.08 to remove this filled material and restore plaintiff's property to its original ground level; that it would cost $1.63 1/4 per cubic yard to remove 1,570 1/2 cubic yards. We have not been referred to, nor have we found, any other evidence bearing on the question.
It is patent that the finding that defendants dumped 3,184 cubic yards of material onto plaintiff's property between August 1, and December 31, 1950, is without support in the evidence. The total amount of material dumped from 1944 to December 31, 1950, was 3,184 cubic yards. Defendant Paul Grosso may not be charged with the cost of removal of material dumped on plaintiff's property by others except such material dumped by others as may slip in removing material dumped by him. Grosso acquired hsi property in February, 1949. There is no evidence that he dumped any material onto plaintiff's property prior to June 1, 1949. The complaint so alleges. Of course, he should be charged with the cost of removing any slippage that may reasonably occur by reason of the removal of material dumped by him. There is no evidence that all the material dumped on plaintiff's property to her east line will slip on removal of that dumped by Grosso. There is no evidence as to the amount that will slip, or as to the cost of removing the same. The finding that defendants dumped 3,184 cubic yards of material onto plaintiff's property between August 1, and December 31, 1950, is vital to the award of damages.
A person is liable for his own acts, and not for the acts of others with whom he was not acting in concert. Miller v. Highland Ditch Co., 87 Cal. 430, 431-433, 25 P. 550; Slater v. Pacific American Oil Co., 212 Cal. 648, 654-655, 300 P. 31.
The part of the finding to the effect that defendant Paul Grosso, with full notice of the ownership of the property, 'maliciously, deliberately and wilfully, and with intent to prevent plaintiff from the use and enjoyment' of her property dumped dirt, rocks and other debris thereon is amply supported by the evidence. A retrial of that issue is unnecessary. Lobree v. L. E. White Lumber Co., 53 Cal.App. 85, 92, 199 P. 821. While the judgment must be reversed, there is no occasion to order a retrial of the issues as to which the findings are supported by the evidence. Northern California Power Co. v. Flood, 186 Cal. 301, 307, 199 P. 315; Paul v. Williams, 64 Cal.App.2d 696, 703, 149 P.2d 284. The only issues remaining are how much material defendant Paul Grosso dumped on plaintiff's property, what it will cost to remove that material and any other material that may slip by reason of such removal, and what damages plaintiff may recover.
The judgment against defendant Madolyn A. Grosso is reversed. The judgment against defendant Paul J. Grosso is reversed, with directions to retry the single issue of the amount of damages, and to make findings of fact on the issue of his liability in accord with the findings previously made, and on the amount of damages in accord with the views we have expressed and the evidence to be taken, and to render judgment for plaintiff in that amount.
SHINN, P. J., and PARKER WOOD, J., concur.