Opinion
Rehearing Granted Dec. 21, 1936.
Appeal from Superior Court, Los Angeles County; Charles D. Ballard, Judge.
Action by Berthold M. J. Conlin against William R. Coyne and another. From the judgment and from an order denying defendants’ motion for new trial, the defendants appeal.
Judgment and order affirmed. COUNSEL
Pacht, Turnbull, Pelton & Warne, Halverson & Halverson, Isaac Pacht, and George Halverson, all of Los Angeles (Lazare F. Bernhard, of Los Angeles, of counsel), for appellants.
Harry K. Sargent and Malcolm Archbald, both of Los Angeles, for respondent.
OPINION
SHINN, Justice pro tem.
Plaintiff recovered damages against defendants resulting from the caving of plaintiff’s land into an excavation made by defendants upon their land, by reason of which excavation plaintiff’s land was deprived of lateral support. Before us are two appeals, to be considered together, one an appeal by defendants from the judgment, and the other an appeal from an order denying their motion for new trial, made under section 953e of the Code of Civil Procedure.
The ground of the motion for new trial was that defendants were unable to obtain a transcript of the testimony and other proceedings at the trial on account of the death of the court reporter. We have held that the order denying the motion made on that ground was appealable. Conlin v. Coyne (Cal.App.) 59 P.2d 884. The appeals come before us on bills of exceptions from which, and from affidavits used on the motion for new trial, it is shown that the testimony was only partly transcribed by the reporter. The testimony of plaintiff’s witnesses is set out in full and there is also a complete transcript of the testimony of defendant William R. Coyne, who was questioned at length by plaintiff’s counsel under section 2055 of the Code of Civil Procedure and by his own counsel as well. It was under the sole direction of this defendant that the excavation was made upon the land of defendants.
Section 953e of the Code of Civil Procedure provides that the court may grant a new trial when it shall be unable to obtain a phonographic report of the trial because of the death or other disability of the reporter. A new trial is not given as a matter of right by the terms of the section, but the disposition of a motion made upon that ground rests in the discretion of the court. In the instant case there was no abuse of discretion. The bill of exceptions showing proceedings upon the trial contains a summary of the testimony of defendants’ witnesses, a statement of evidence offered and excluded under rulings of the court, as well as the instructions given and refused. It does not appear that the court refused to incorporate in the bill any statement as to evidence introduced, rulings made, or other proceedings had which defendants sought to have included therein. The bill is not deficient in any particular to which our attention has been directed, and we must of necessity hold that defendants were not prejudiced in the presentation of their record on appeal by their inability to furnish a complete transcript of the evidence.
Defendants rely upon the insufficiency of the evidence to support the verdict. They owned two hillside lots facing south, at the northeast corner of intersecting strects. Plaintiff’s lot was a key lot extending across the rear of both lots owned by defendants. When defendants excavated their easterly lot down to street level, they built a retaining wall at the rear where it adjoined plaintiff’s lot. Later they excavated the westerly lot and, in so doing, as the jury decided, failed to take reasonable precautions to sustain plaintiff’s adjoining land, with the result that a shallow wall on plaintiff’s property at the division line, together with the earth in proximity therewith, fell into the excavation, which had been carried to a depth of some 25 or 30 feet below the level of plaintiff’s lot. The natural slope of the land was toward the south, and defendants’ excavation was on the approximate level of the street south of their land. The argument on this point discusses the facts quite fully and advances numerous theories which, if held controlling, would relieve defendants of responsibility. These we shall discuss briefly. The contention that the north wall of defendants’ excavation was left with a slope which insured its safety, and that therefore no negligence was shown, conflicts with testimony given by those skilled in such matters in that locality to the effect that the wall was too precipitous for safety, having a slope approximating 45 degrees where a 30-degree angle was required for safety. This testimony is supported by photographic exhibits showing the condition of the bank.
It is contended that the bank caved in as a result of a heavy rainstorm, and it is doubtless true that the rainfall was a contributing cause. The storm was described by defendants’ witnesses as an "unprecedented" one. However, while it was of unusual proportions, it was not the first of its kind, and its characterization by the witnesses as "unprecedented" presented their own conclusions and their choice of descriptive phraseology rather than proof of the fact. No evidence was given as to the amount of rainfall which fell during the storm nor as to the time within which it fell. The jury no doubt regarded occasional heavy rainfall as a hazard which should have been anticipated and against which precautions should have been taken to avoid injury such as the one we are considering. If we were to look beyond the testimony in the case to matters of common knowledge, our observations would tend more readily toward an agreement with the views of the jury than toward the contrary.
In the building of structures which are to be exposed to the elements, the exercise of due care requires that precautions be taken against storms and floods which may be reasonably anticipated. Asher v. Pacific Electric Ry. Co., 42 Cal.App. 712, 187 P. 976. Acts of God which are within the rule of law that "no man is responsible for that which no man can control" (Civ.Code, § 3526) are those which operate independently of human agency. Polack v. Pioche, 35 Cal. 416, 95 Am.Dec. 115; Newman v. City of Alhambra, 179 Cal. 42, 175 P. 414. The jury was required to determine as a fact whether the injury was caused by an act of God, and its conclusion, if reasonably supported by evidence, is conclusive on appeal. Holt Mfg. Co. v. Thornton, 136 Cal. 232, 68 P. 708; Fererira v. Silvey, 38 Cal.App. 346, 176 P. 371.
It is further contended that the concrete wall on plaintiff’s land was weakened by the flowing of excessive amounts of water through the drains from the roof of plaintiff’s house, due to the obstruction of the drains, which rendered them inadequate to carry the water away and caused its diversion toward the bank. It is argued further that plaintiff’s land adjacent to his wall on the north had been filled in with loose earth and that the wall itself had insecure and inadequate footings and had been weakened by an earthquake shock. It is contended also that the bank had been softened by drainage from a cesspool on plaintiff’s lot immediately adjacent to the division line. All of these facts are stressed by defendants as showing that plaintiff’s own acts and the conditions which he suffered to exist on his property caused or directly contributed to the injury to his land. The argument goes to the weight of the evidence, and, although these facts tend strongly to show that the negligence of defendants was not the sole proximate cause of the injury, nevertheless the evidence and the inferences therefrom were not conclusive. The implied finding of the jury that the facts relied upon by defendants were not a proximate cause of the injury is not unreasonable and therefore is not vulnerable. It is earnestly contended that defendants were under no obligation to furnish lateral support to the wall on plaintiff’s land, and under a proper application of the provisions of section 832 of the Civil Code it must be conceded that defendants are correct in this position. However, plaintiff neither claimed nor was awarded any damages for the loss of his wall but only damages to the land itself occasioned by the cave-in. Defendants were required only to maintain lateral support of the land, and if the cave-in was a result of the weight of the wall, and if, as we believe the evidence establishes, plaintiff had sufficient notice of the excavation work under section 832 of the Civil Code, defendants should not have been held responsible in damages. However, the jury was instructed as to the obligations which defendants assumed in making their excavation, and the duty of furnishing support for the wall was not among them, but was definitely excluded. It must be presumed that the jury believed that insufficient lateral support was left for the land itself and that it would have caved in if there had been no wall resting upon it. The evidence on the point presented a clear question of fact for the determination of the jury, and although with reason it might have been held that the weight of the wall was a proximate cause of the injury, the conclusion of the jury that the fact was otherwise is supported by reasonable inferences of fact. We cannot override the finding of the jury that it was the manner in which the excavation was made by defendants and not one or all of the conditions existing on plaintiff’s property which constituted the immediate, efficient cause of the injury. The implied finding that defendants failed to take reasonable precautions to sustain plaintiff’s land, based as it is upon reasonable deductions from the evidence, is controlling upon that issue of fact.
Defendants offered in evidence an ordinance of the city of Los Angeles which required all sewers, in the district in which the property involved is located to be connected with the city sewer system. Upon objection the evidence was excluded, and this ruling is assigned as error upon the ground that violation of the terms of the ordinance would in itself constitute negligence. Under the facts of the particular case we do not regard the ruling as erroneous. If the seepage from plaintiff’s cesspool had caused a saturation of the soil on the bank of the excavation, and if this condition had been a proximate cause of the caving of the bank, defendants would have been entitled to rely upon the fact as a defense to the action. If the cesspool was negligently maintained because it was maintained unlawfully, proof of the ordinance would have tended to confuse the jury by injecting the element of negligence which was not essential to the defense. It is not, nor could it be, seriously contended that defendants would have been bound to furnish lateral support to plaintiff’s land if it had been kept in a state of artificial saturation. In presenting proof in support of their asserted defense, defendants did not have to prove, nor was it necessary that they should have relied upon, negligence of plaintiff in maintaining and using the cesspool. Furthermore, the jury under proper instructions found that the seepage from the cesspool was not a proximate cause of the injury. Proof that the cesspool was used in violation of law would not have altered this finding.
The court also excluded evidence that defendants’ land had been excavated in part before plaintiff acquired title to his property. It is urged that this ruling was erroneous for the reason that the principal excavation was made at a time when plaintiff did not own the property and that therefore no right of action was lodged in plaintiff. But plaintiff’s predecessor could not have sued until the damage occurred, and there can be no doubt that plaintiff alone was entitled to redress for the injury to the land which occurred during his ownership thereof.
The point is made that no proof was offered that defendant Myrtle Coyne was one of the owners of the property upon which the excavation was made, and from this fact it is argued that the verdict and judgment should not have held her jointly liable with defendant William R. Coyne. It was alleged in the complaint and not denied by answer that at the time the excavation was made said defendants were the owners of the property. While the excavation work was under the direction of defendant William R. Coyne, it would be quite unreasonable, we believe, to assume that it was done without the knowledge and consent of his co-owner, Myrtle Coyne. It does not appear from the record that the latter disclaimed knowledge of the improvement of the land.
We have read the instructions proposed by defendants which were refused, as well as those which were given. We do not find that the instructions given were conflicting, as defendants contend. The jury was correctly instructed as to the matters to which the refused instructions related. The judgment and the order denying defendants’ motion for new trial are affirmed.
We concur: YORK, Acting P. J.; DORAN, J.