Opinion
Rehearing Denied Jan. 9, 1929.
Hearing Granted by Supreme Court Feb. 7, 1929.
Appeal from Superior Court, Los Angeles County; Walter Guerin, Judge.
Action by Ethel Clayton Kaufman against Peter Tomich and the city of Los Angeles. Judgment for plaintiff, and defendants appeal. Judgment against defendant Tomich affirmed, and that against defendant City reversed.
COUNSEL
Jess E. Stephens, City Atty., and Lucius P. Green, Deputy City Atty., both of Los Angeles, for appellant city of Los Angeles.
Hewitt, Ford, McCormick & Crump, of Los Angeles (J. F. Moroney and Pierce Works, both of Los Angeles, of counsel), for appellant Tomich.
Miller & Ellis, of Los Angeles, for respondent.
OPINION
STROTHER, Justice pro tem.
This is an appeal from a judgment in favor of plaintiff for damages to real property. The city council of the city of Los Angeles adopted a resolution of intention to lay a sewer on Fairfield avenue, a street upon which plaintiff’s property abuts, to be constructed in accordance with specifications adopted by the council and plans and profiles on file in the office of the city engineer. A contract for the construction was let to the defendant Tomich.
Plaintiff’s property was situated on the south side of Fairfield avenue, and sloped at a considerable angle toward the street, and at the line was about 7 feet above the street. A concrete retaining wall formed the property line. The defendant Tomich, in performance of his contract, dug a ditch in the street 7 or 8 feet from plaintiff’s line and about 7½ feet deep in which to lay the sewer. The ditch was dug in sections 6 or 7 feet long, about 6 feet apart, with tunnels at the bottom between the sections. Directly after the excavation of the ditch, the westerly part of plaintiff’s lot and part of a vacant lot west of hers began to slip diagonally toward the street, breaking the retaining wall and taking out part of the foundation of plaintiff’s house, which was set about 15 feet back of the street line. It was the contention of plaintiff that the damage to her resulted from the conjoint negligence of the city in improperly planning and locating the sewer line and of the contractor in negligently performing the work. There was testimony on her behalf that the side of the ditch nearest her property cracked and bulged in, and that the contractor did not properly brace the sides of the ditch, so as to prevent movement of the earth. Judgment went for the plaintiff, and the defendants appeal separately upon a joint bill of exceptions.
It is argued on behalf of the appellant city of Los Angeles that the only act of the city was a governmental one, in declaring the necessity for the construction of the sewer; that the plans and specifications for its construction were the work of an independent agent, the city engineer, and the carrying out of the plans and specifications solely the responsibility of the contractor. The case of Haughawout v. Hubbard, 131 Cal. 675, 63 P. 1078, and other cases, are cited in support of the proposition that the city is not liable for the acts of its officers in preparing specifications and doing other engineering work. But in all of these cases the court was considering, not the liability of the municipality, but the sufficiency and regularity of the proceedings as authority for proceeding with the proposed work, or the enforcement of the lien of assessments against the property liable for its cost. The cases which hold that a municipality is not liable for the acts of its administrative officers are those where the officer had omitted the performance of his legal duty, or done some act in violation, or in excess, of his legal duty, as in the case of Sievers v. San Francisco, 115 Cal. 648, 47 P. 687, 56 Am. St. Rep. 153.
Section 34 of the "Vrooman Act" (St. 1885, p. 147, as amended by St. 1891, p. 206) does not, as argued by the appellants, give complete power and discretion to the city engineer in the preparation of plans and specifications and other engineering work necessary in carrying out public improvements, and, if it did, it would be merely substituting him as another agency of the municipality for the city council or the board of public works, and would not change its liability, if any, for the results. The city council in its resolution of intention expressly designated the specifications for the work-which specifications it had theretofore adopted by ordinance-and defined the location of the sewer. In determining the necessity of the sewer, the city, by its council, was acting in its governmental capacity; in planning the location and construction of the sewer, in its corporate or ministerial capacity, in the construction of a public work of the municipality. If, by reason of its construction in the particular location, the plaintiff’s property was damaged, no "compensation having first been made," as required by article 1, § 14, of the Constitution, the city committed a legal wrong for which it is liable.
The question whether the liability existed at common law or was created by the constitutional provision is immaterial, as the nature of the liability is the same in either case. In Perkins v. Blauth, 163 Cal. at page 789, 127 P. 53, it is said: "Upon the other hand, if the act is one commanded by the municipality itself, if inherently wrong, the municipality and the agent who performed will both be liable." Again: "Wherever the injury complained of is the taking or damaging of private property for public use without compensation then under the guarantee of the federal constitution against such invasion of the private rights of property, neither the state itself nor any of its agencies or mandatories may claim exemption from liability." Id. The decisions in this state are uniform to the same effect. In this case, the court having found from competent evidence that the plan and location of the sewer was inherently dangerous, it comes within the rule.
It is urged by appellant city of Los Angeles that the evidence was insufficient to support the finding that the "location and alignment of said sewer was intrinsically dangerous and inherently wrong." Over the objection of defendants, witnesses, who were shown to be experienced in excavation similar in kind and location to that in this case, were permitted to testify that the location and manner of construction of the ditch were likely to endanger plaintiff’s property. It is argued that this was not a matter upon which expert testimony was admissible, and appellant Tomich contends that, if the finding was true, he was not liable, and both appellants contend that no joint liability was shown. But it does not seem to us that the effect of the removal of lateral support from soil, on a hillside, composed of an overburden of black adobe on a thick layer of mixed shale and clay, with a subbase of clay, is of such common knowledge that the judgment of those experienced in working under such conditions would not be enlightening, or that the amount of care necessary to prevent soil of that character and in that position from caving, is matter of common knowledge. If they were matters of common knowledge it would seem hardly necessary to have the aid of an engineer, skilled in the planning and supervision of such work, in preparing its plans and specifications and locating its line. This evidence, with the evidence of the physical facts and of what happened, was sufficient to support the finding of the court.
The contractor having undertaken to carry out a work which the court found was inherently dangerous to plaintiff, and having been found by the court not to have taken the precautions which might have averted injury to plaintiff, was also liable.
Certain other findings of the court are objected to by appellants as not supported by the evidence. The finding that the city did not, by its specifications, require that the sides of the ditch should be braced, was contrary to the evidence. There was testimony, however, to the effect that they were not braced, and the court so found. The court having found that the location of the ditch endangered plaintiff’s property, it was the duty of the city at all events to prevent the injury and the finding was immaterial.
The complaint alleged, and the court found, that the notice mentioned in section 832 of the Civil Code, defining the rights of coterminous owners to lateral support, and providing that each shall have the right to make proper and usual excavations on his own land, on "giving *** reasonable notice to the other of his intention to make such excavations," was not given. There was, in the answer, no denial of the allegation, but merely a denial of the further allegation that "no notice was given."
It is claimed by appellants that the amount of damages found by the court was excessive. Plaintiff restored the retaining wall by the construction of a concrete garage. Witnesses on her behalf testified that the cost of this structure was less than would have been the cost of excavating for a solid foundation for an ordinary retaining wall and replacing the earth behind it, and served the same purpose of restoring and maintaining the stability of plaintiff’s property. This was sufficient justification for the court’s finding.
Appellants contend that the measure of damages adopted by the court in its finding was not correct, and that the finding should have been as to the difference in the value of the property before and after the injury, not the cost of restoring it to its original condition. The question is raised for the first time on this appeal, and the case was tried by both parties on the theory that the latter was the proper measure of damages. Appellants should not now be heard for the first time on appeal to complain that the case was tried on an erroneous theory. Kincaid v. Dunn, 26 Cal.App. 686, 148 P. 235.
The judgment should be affirmed.
KOFORD, P. J.
I concur in that part of the opinion which affirms the judgment against defendant Tomich, but do not agree with that part of the opinion which affirms the judgment against the defendant city of Los Angeles. I think the damage to plaintiff’s property was caused by the negligence of the contractor in failing to carry out faithfully the specifications and not by the public work as planned, specified, and contemplated. It could have been executed without harm to plaintiff, if proper care was used by the contractor; and so it was not the public work, but the manner of executing that public work by the contractor, which damaged the plaintiff. Although the specifications called for bracing, yet, quoting from respondent’s brief, "it clearly appears that no bracing or protection of plaintiff’s wall was taken until after the damage had occurred." In the authorities relied upon by respondent for upholding the liability of the municipality, the damage resulted from the very nature of the improvement as planned. This distinction is pointed out by Justice Sloss in Gay v. Engebretsen, 158 Cal. 21, 24, 109 P. 876, 139 Am. St. Rep. 67, and in the case of Perkins v. Blauth, 163 Cal. 782, at page 789, 127 P. 50, and in Sievers v. San Francisco, 115 Cal. 648, 652, 653, 47 P. 687, 56 Am. St. Rep. 153.
The public work planned and ordered was to open and close the street, again restoring it to its former state in good order. The work as planned, then, would do no harm to plaintiff; but the city is held liable by the judgment, because the work as located and aligned was inherently dangerous-inherently wrong and of such a nature as was likely to damage and injure plaintiff’s property. If the judgment is correct, then the municipality is responsible at all events for damages caused by the contractor if the work planned is dangerous, but not if the work is not dangerous inherently. No such distinction has been drawn in the authorities between dangerous work and safe work. The amount of danger only determines the amount of care required in executing the work.
The judgment against the defendant Tomich is affirmed. The judgment against the city of Los Angeles is reversed.
I concur: NOURSE, J.