*1 in effect.” As so modified De- is affirmed.
fendant Paul Grosso is to bear appeal. the costs of this
Gibson, J., Shenk, J., Edmonds, J., C. Carter, J., Schauer, J., Spence, J., concurred. In A. No. 22312. July 7, Bank.
[L. 1953.] NAN CONNOR, VICTORIA Respondent, TRUE v. PAUL al., Appellants.
J. GROSSO et
230 Henry Appellants. F. Walker for
W. P. Smith Respondent. & Welbourn for Stanton, Stanton TRAYNOR, action was consolidated for with J. This trial ante, p. 429], 219 P.2d The trial Grosso, v. Herzog [259 Madolyn defendants Paul Grosso and court found that plaintiff 3,184 cubic material on Nan deposited judgment against and entered both de- Connor’s $4,362.08. for fendants Madolyn the award of Grosso contends supported by the against her is not evidence.* We
damages The fact Grosso was her husband agree. joint her he held the with as a tenant does liability. (Goldman House, Cal.App. her v. 93 not establish ; Hoffman, Bank 572, P.2d Citizens State v. 2d 576 [209 639] Oxtoby, 854, 211].) 855 P.2d In Brown v. Cal.App.2d 44 [113 702, 622], 709 P.2d and similar relied Cal.App.2d 45 cases [114 actively there was evidence that the wife upon plaintiff, tort, her in the or that the husband acted as participated pleaded she ratified his conduct. Plaintiff a agent, or that Madolyn Grosso, against but no evidence was cause of action although allegations, her the case was introduced to days. and on for seven contested trial The trial vigorously judgment Madolyn to enter for therefore directed court will be §53;, Proc., see Burtis Universal (Code Civ. v. Pic Grosso. 933].) P.2d 40 Cal.2d Co., Inc., tures [256 ‘ ‘ dumped upon trial found that defendants court ante, Herzog Grosso, p. companion P.2d [259 *In v. case against only. 429], was Paul Grosso award of plaintiff 3,184 said real dirt, rocks and other debris” and that the “cost of removal of said unlawfully dumped upon material so said real
plaintiff, including slippage necessarily incidental to such removal, $4,362.08.” sum of Defendants’ contention *3 supported by that this is not substantial evidence is by acquired sustained the record. Before defendants their property, a already considerable amount of had dirt been dumped property by on the Herzog Connor and Mrs. Schneider in building parcel filling the course of 3, the road on in the ground telephone pole, leveling near the and land between parcels the road on 2 top and 3 and the road to the hill. acquired hilltop property March, Defendants the in 1949. dumped Grosso dirt on the Connor November, 1949, in regraded road, when he his and again September, 1950, in ramp when he built the across the fill. witness, Willis,
One Bert testified that to restore the by removing Connor to its natural condition all upon of the fill and the dirt that would fall in removal thereof, require 3,184 yards would excavation of cubic of $4,362.08.* dirt at a witness, Cook, cost of Another Kenneth fill, testified the September, 1950, that last in amounted to 1,570½ yards. Willis, According 1,570½ yards removal to $2,625.84. would by cost Witnesses called defendants testified dumped only that Grosso of dirt on the Connor could, but the course, trier of fact resolve the plaintiff. conflict in the in party evidence favor of Neither depreciation introduced evidence in showing the value plaintiff’s property dumping caused the the dirt.
Defendant, course, required pay should be to the of removing any slippage may cost reasonably that occur in plain- course of the material that he computation *Willis his testified he based on the amount of filled ground lying between the red line and dotted line ex- survey map prepared by hibit C-2. That exhibit is a witness Cook. He represented boundary testified that property red line between Connor parcels and 2 and the dotted line indicated the property. dug of the fill on the Connor Cook stated that he four .bottom only part in test holes fill and concluded that of the dirt in dumping could be attributed to the last on the Connor land. Willis, your testimony far, The trial court “I asked take it from Willis, conveying Mr. that what are it 3,184 yards original removal of to Connor restore the to its ground added.) (Emphasis replied, right, level.” The witness “That sir.’’ favorably plain to evidence, viewed most property. The tiff’s actually dumped 1,570½ cubic tiff, shows that Grosso to remove all the plaintiff’s property of material plus the dumped by persons, other fill, including material parcels from and 3 dur the hill dirt that would slide down 3,184 excavate ing removal, would such it be previously material yards. There is no evidence that the subsequently lying under the dirt dumped by persons, other by Grosso, be removed order would have to any evidence dumped by him. Nor is there remove the dirt hill down the that will slide to show the amount dirt removed. 1,570½ yards dumped by were if per other with the did not act concert Since Grosso land, required be he cannot dumping dirt on the Connor sons v. dumped by (Slater them. pay for removal of the dirt *4 ; Co., P. Cal. American Oil [300 31] Pacific Prosser, Torts, p. 333.) judgment The holds Grosso property and is responsible for all the dirt on the Connor adequate support in the evidence. without thus in the award of argues the error lengthy After a requires complete a new trial. damages liability in question of favor trial, resolved the the trial court damages favor question exemplary plaintiff and the judgment is not only on which the of defendants. The issue compensatory evidence is the amount of supported opinion separate trial on damages, we that a and are of the justice and will expedite will the administration that issue already he trial, fair for has deny a not defendant-Paul Grosso court’s liability, and the trial a fair trial on the issue had supported by evidence. findings amply on that issue are against Madolyn A. judgment defendant Grosso The judgment enter reversed, court is directed to and trial A. against Paul judgment in her The defendant favor. retry reversed, is directed to and the trial court Grosso only. Madolyn compensatory damages Grosso the issue of parties shall appeal. her costs on The other shall recover own bear their costs. . Edmonds, J., Spence, J.,
Gibson, J., Shenk, J., and C. concurred. particular exception
SCHAUER, I take J. I dissent. directing judgment the trial court to enter in favor the order properly we Madolyn Even if can conclude that Grosso. support on this record is insufficient to the evidence .judgment against right her we have no to assume a against new trial no additional evidence her pro- could be duced. appears
It further to me to be inaccurate to state opinion judgment which that “The issue on is not supported by the evidence is compensatory the amount of damages ...” at the and same time to order a new trial on compensatory damages the issue of the amount of against as directing Madolyn. while a in favor of view, my In record, the state of the and on the facts majority opinion, and law stated in the there should be a complete parties. new trial on all issues as all
CARTER, J. I dissent. I think it is clear that the evidence is sufficient to the award of newa trial on that issue should not be ordered. majority opinion proceeds upon theory plain-
tiff was not entitled to the cost of more dirt than was her actually though even it would require the removal effectively additional amount to remove there is no evidence amount that the removal of the additional amount was
effectively dumped. remove the amount *5 proposition manifestly first is untenable. It the is saying
same as plaintiff a case where was entitled to dam- ages injury for an to the motor of his car that he could re- damage for the cover expense to the motor but not the of repairing part it repair where of the cost of was the removal replacement parts although necessary other repair the clearly motor. The evidence supports the necessity of re- moving the additional soil.
The majority holds that there was insufficient evidence to the trial court’s that defendant Grosso dumped 3,184 plaintiff’s of soil on property and hence damaged her in the sum $4,367.08, being arrived at computing the cost of removal of the per yard. $1.37 dirt at enough is evidence, There theory that while the total yardage plaintiff’s of soil may land have been 1,570½ 3,184, instead of it would the removal of the latter amount because to effectively remove 1,570 yards, an additional amount, up 3,184 yards, to the re- must be moved because of sliding plaintiff’s of other soil onto land as the 1,570 result of yards. had been 1,570 yards that testified While Cook removal of (Willis) on expert plaintiff’s land, thereof, testified: cost soil and the you make an esti- Willis, did request, Mr. my Now, at “Q. map this represented on ground filled amount mate of the C-2, lies be- Exhibit that to, Plaintiffs’ I have referred the mark red line and line or the the Connor tween spill from road’?” ‘Toe of entitled line
with the dotted end? What ‘‘The Court: within that ground enclosed Well, all the
‘‘Mr. Stanton: line. the red line and curved I to the that went back did, but in addition IYes, “A. toit You couldn’t excavate the land. natural contour of your property sliding hack line without your property original con- line to the back of line, we went hill. tours To excavate at a that, Willis? A. Mr. you do Why did “Q. hold the ma- line, you couldn’t line at the vertical property. into you slide down it, would terial above making your yardage, estimate words, in “Q. In other Is that correct? that dirt. removal of in mind the you had right. That A. line, along right you if removed Then “Q. into fall the other dirt would estimate your best it is as well? A. That be removed have to would place right. the amount of to estimate were asked “Q. Now, you along property line, necessary to remove dirt yards of right. That is A. you not? were number of cubic of the total your estimate “Q. What was yards. 3184 cubic A. earth ? earth only the amount of not includes “Q. That which estimate of earth yardage also the itself, but *6 fill in the Connor present fill, were the into the fall added.) (Emphasis A. Yes.” removed? ‘‘ testimony far, Mr. your from I take it : The Court conveying is that it you are Willis, what restore the Connor yards to the removal ground level.” original to its reasonably susceptible of the testimony is least at That soil on the remove the in order to construction necessary remove the soil it would be by Grosso land otherwise if land because original contour would slide down dumped, other soil part removed leaving soil on before; the same as to re- move all of the soil land, 3,184 to restore yards must be This finding removed. accord with the of the trial court. being
This record, state of the there ample evidence of the trial court as to the amount should, by plaintiff suffered and the therefore, be affirmed. July 7, A. No. 22656. In Bank.
[L. 1953.] THOMPSON, HELEN C. Appellant, v. CITY OF LONG al., Respondents.
BEACH et