*1 December 31, A. No. 15445. Bank. [L. 1935.] al., Appellants, ALMA A. NORTON et Plaintiffs and Municipal Re- (a Corporation), CITY OF POMONA spondent; COM- SOUTHERN CALIFORNIA EDISON PANY, Corporation), (a Appellant. LTD. *3 Joseph Seymour for Plaintiff Hews and and
Kelley & Appellant. Cunningham E. W. F. and B. Woodard for Reppy, V.
Roy Appellant. and Defendant Pillsbury, Wright, L. Madison & Sutro, Samuel
Alfred Spaulding, W. H. and as Amici Sutro, J. Straub Thomas Appellant. Defendant and on Behalf Curiae Respondent. R. Stead Charles Schrader, Ray Chesebro, City Attorney, von L. Frederick City Attorney, Deputy Thomas David, Leon Assistant and (Los City Attorney City Huls, Attorney Angeles), Harold (Pasadena), Brennan, City Attorney (Glen and Bernard dale) , Respondent. as Amici Curiae Behalf A hearing
THE granted COURT. in or this case fully der to consider more the contention of defendant South Company, Ltd., ern California Edison could not negligent deemed in maintaining power pole in location by authority. approved point public The same was involved in Gerberich v. A. 14528 L. Edison Southern California p. 46 (2d) 948]), day (ante, decided, we approved holding Appeal. the District Court of conformity therein, with hereby the conclusion reached we adopt opinion following pro of Mr. Justice tern. Willis as opinion of this court: are appeals
“There two herein. One defendant (hereinafter Southern California Company, Edison Ltd. re- Company’), ferred to as ‘Edison judgment from a for dam- ages in favor of Norton, Alma A. Norton and Ed. husband, injuries person wife property re- sulting from a collision their automobile with an electric power and light erected the Edison Company in parkway near the corner of street City by plaintiffs judgment of Pomona. The other Pomona, in favor municipal of defendant corpora- tion.
“Plaintiffs commenced action on 31, December complaint their second sought amended charge de- fendant maintaining Pomona with public street in a dangerous or condition, defective charged both defend- maintaining ants with power an electric *4 place light pole dangerous at a on said portion and defective dangerous unguarded of street in position said thereon, and a result plaintiffs, as of which knowledge without on their part dangerous condition, of drove their automobile into pole, causing and collided with said damage complained of. After trial before the court jury without a was, the cause April 14, 1933, ordered submitted on of briefs. On 2, 1933, the June court made its minute judgment order for plaintiffs against Company
in and defendant Edison favor of damages, of Po- $6,065 in of defendant and favor findings waived. fails to mona. The record show that were hand, 23, 1933, plaintiff Ed. Norton died his own On June testamentary July 24, 1933, and on letters were issued 22, August his estate. On Alma A. Norton as executrix of Norton, individually as executrix 1933, plaintiff Alma A. and Norton, court for an order Ed. moved the of the estate of pro of the findings judgment in nunc tunc as file and the case 1933, 1, 2, On November court date June 1933. signed its and filed granted same and on the date same appealed findings judgment herein and conclusions from, on November judgment entered'by was the clerk pursuant 1933, 6, 1933, pro 2, as of June to the nunc tunc On incorporated judgment. in do, order of court so to sub- 10, 1933, Norton, executrix, as was Alma A. November plaintiff, place in Ed. Norton stituted stead as objections entry findings reserving all of the the defendants pro No- judgment 1933. On nunc tunc as June 14, 1933, A. A. Alma Norton and Alma Norton as vember. in appeal judgment from the favor executrix notice of filed only, 15, 1933, on November defend- of Pomona Company judg- appeal filed notice ant Edison against it. ment “ Company. Appeal Edison of urged (1) it appeal that the fact established “On this parkway proof undisputed pole that was governmental under public street and there of a law, complete as a matter authorization, defense of such did the maintenance that inasmuch as showed nuisance; company (2) was not that not constitute pole; maintenance of said any negligence guilty of contributory negligence as guilty (3) plaintiffs were upon the death law; (4) abated that the action a matter of it was error to order husband, Norton, Ed. pro nunc tunc of a date judgment favor deceased death, particularly in favor said prior his plaintiff. “ significance problems apprehend nature and To necessary reproduce appeals herein it is presented on both of the accident some detail. the scene and circumstances City Fifth street of the accident At time *5 west, ran in San Pomona east and and course intersected public streets right angle, being Antonio avenue at both 100 feet city. West of the Fifth street was said intersection curb property 68 feet between wide between lines and wide lines, paved and curb. East of from curb to and was used prop- the intersection Fifth street 70 feet between was wide lines, erty 46 feet the reduction lines and wide between curb portion approximately side, being in 11 feet width on each being paved generally for ve- between curb lines and used hicular travel. On corner of intersection the southeast erected, forming there was curb thence a rounded corner respective streets, proceeding along pavement the street on ground being one on side and the level side the other top space even with the of the curb. 12'-foot The between property corner, line and curb line at this on the south side street, level, Fifth consisted of with earth filled to the curb no sidewalk constructed thereon. point property
“At on the on side of the curb the south street, Fifth curb, side of flush with stood position ordinary light vertical an power pole, electric base, about twelve inches in diameter near its its west surface being about 16 feet from easterly curb line of San An- being avenue, unpainted tonio color, and of a neutral with warning lights signs no thereon. pole The had been by erected and was Company the Edison under constitutional franchise and under an ordinance of the adopted of Pomona authority Broughton under (Act by Act No. Deering’s Laws, p. 1244), Gen. right company given terms which the was to select place poles along of location of its the property side of previous lines flush with curb. curb said At least two pole collisions automobiles with this were shown tending dangerous as evidence show the character of such (Gorman County Sacramento, pole. App. 656, 92 Cal. 1083].) space The between curbs and at property past this corner lines had been used public turning corner, and the surface of such space up to the was clear and level with the curb and pavement street wet weather and darkness would present appearance highway. of a used eight night January 1, 1931, o’clock
“About plaintiffs drove their along automobile eastward south curb, speed eight street, feet at Fifth about
side of per hour the intersection ten or miles entered twelve It driving. avenue, Norton plaintiff Ed. at Antonio San dark, the auto- raining very the windshield of was wiper working on the moisture, mobile obscured portion headlights The over a thereof. driver’s side *6 lights or near lighted were no on automobile were but there except filling intersection, at a station pole the at this nor light gooseneck a" corner, on southwest and a small at the westerly pole the of the intersection. the side attached to plaintiffs were un- entered the intersection As the automobile narrowing the of street and course was main- aware of the eastward, running straight line wheels over in a the tained easterly space the the curb line on side dirt the level onto against directly pole at corner and the above described. the pole at the plaintiffs the same instant saw for the first Both it, ten twelve feet from when when some the driver time stop the but could not the car to put on brakes time avoid collision. substantially above stated and these facts found
“On the court, erection, also found ‘that the trial was mainte- pole place of at permission nance and said said time and permitted by negligently defendant, done and Southern Company’; pole, negligently Edison ‘that said so California maintained, constituted placed a hazard to the and travel- herein’, ling plaintiffs negligent to and that ‘the lo- public and pole condition of driven cation and said caused the automobile plaintiff plaintiff, Norton, in Ed. A. Alma riding, run into collide with the pole’. Norton was and said contributory was no negli- further found that there The court part plaintiffs, they and that gence on the had not filed damages legislative body City for with the any claim Pomona, required by relating liability act and etc., municipalities, approved 19, 1931, June damages of August From 1931. these facts court con- in effect plaintiffs not entitled to were recover from cluded judgment against were entitled to Pomona but City Company $6,065. for Edison “ pole place maintenance of That the shown cannot herein the circumstances deemed under 3482 of the Civil section Code settled nuisance is courts, nothing for appellate our which is done decisions
61 express authority under the of law can be Co., (Carson R. 35 deemed a nuisance. v. Central R. Cal. 657, 1 325; Barry Terkildsen, Am. Cal. Pac. Rep. Co., 55]; Barrett v. 207 Cal. St. Southern 481].) But while the maintenance erection and appear by ordinance, pole herein to have been authorized part the Edison Com liability still exists on the negli consequential injuries pany arising from its gence exercising right power granted to erect (Carson poles maintain within Pomona. v. Central Co., supra; R. R . supra.) Barrett v. Southern Pac. “ theory Herein sued —not that of nuisance—and contend that the of Pomona negligently permitted dangerous hazardous condition public Edisgn exist, of a street Company negligently dangerous place, maintained a concurrently two operating proximately acts cause the injuries plaintiffs. case it became fact the court to determine whether under the circum *7 the pole stances shown maintenance of street, the and the separately together, negligence or constituted on part the (Barrett either or both defendants v. Southern Pac.
supra), negligence, and whether such any, if proximately injuries plaintiffs, caused the without contributory negli gence part. on their The establishing evidence the facts herein circumstances is such that reasonable might minds opposite draw different inferences both as to contributory negligence. The court found that the de Company negligently fendant Edison erected and maintained place shown, the placing the that such and maintain ing traveling public constituted a hazard to the and caused happening collision, the of the that was no negli gence part contributing on thereto. There ample support evidence to was conclusions deduced there by court, and under the well-known rule these findings binding are on appeal conclusive this and can not by be substituted of our own deductions. disposes points presented
“This first three by the Company, Edison and leaves for determination the validity propriety of the act of the court in filing judgment plaintiff decision and after its death Ed. Norton, 62 making pro judgment
nunc tunc as the date of its order for 2, 1933. June person, “A of action cause founded on tort to injuries, personal does not such as the instant action for person by survive the death of either whom adopted by wrong is is common law rule done. This state, changing rule as affected is no statute and there Goodwin, 170 527 (Clark v. Cal. the situation herein. Bach, 357, 1916A, 1142]; Pac. R. A. Munchiando L. [150 762'].) Hence the cause of action Cal. 457 203 plaintiff upon his on June Ed. death favor of Norton abated by the action 1933, was avoided 23, unless such abatement judg findings entering its trial court 1933, 2, prior to his a date pro ment nunc tunc as of June death. judgments pro power enter nunc tunc
“The fault, party Where the at inherent the courts. moving the court is whether consideration the determinative ready party the death or not the action at judgment. When the state record rendition of final that a suitor was kept the court or clerk show the minutes judgment judgment but particular to a entitled may been, judgment might it when have such was not entered time relate back to the when entered as to subsequently be so delay providing entered, was not have been should party applying. Such an order occasioned require in view justice may granted or be refused should (Estate particular Pills of a ease. circumstances 1396].) 3 L. R. Not A. bury, Cal. Pro of the Code of Civil withstanding and 633 sections without of a case tried it essential to decision make cedure findings waived, findings are not jury and in filed, the made and court must of law and conclusions fact findings be filed authority to order the same has *8 thereon judgment to be it has to order pro tunc as nunc parties have which the invoked The decision entered. so statutory and technical necessarily to make is court 633, final it is the deter to section but referred ‘decision’ every step rights parties of includes mination of the judgment upon requisite final is the court which to or act of prejudiced by rights be are not rights. to These their proceed- acts or respect any to of these delay court of the ings, mating filing the court authorized to or direct the findings law, of its of fact and of as as the conclusions well entry judgment thereon, pro of nunc tunc of such date as preserve as will them. Nor section 669 the Code does of Procedure, provides judgment of entry Civil which of death, party death of after on a before verdict decision away do with the rule that the court direct that authorizes decision, necessary so far the same be protect as shall rights parties, pro shall be entered nunc tunc as day (Fox party. anterior to the death of a v. Leavitt, &Hale Norcross S. M. 328]; Cal. 478 Gibson, 3 (2d) (2d) 1091].) Cal. herein,
“In view of the facts as revealed the record measured applied the rules above stated were cited, set of a similar facts cases we conclude that justified fully the trial court was carrying in mating and pro out its nunc tunc order. This un conclusion renders it necessary to consider the the effect abatement spouse by rights as to one death in re the other community spect represented property by the cause action.
“Appeal by Plaintiffs. appeal “On it urged (1) that the evidence showed that defendant guilty Pomona was proximately contributing injuries to cause the accident and reason of the condition in which it place the street accident, at (2) that failure damages to file a verified claim legislative body with the city preclude before suit does not plaintiffs from recovery. will first We determine point, the second logically first in comes order of consideration. legislature “In 1931 enacted, 14, on August 1931, effective, which, there became an act principal in its parts, provided any that ‘whenever it person is claimed that injured has been property damaged as a result of the dangerous or defective any public street, condition of high , way, building, grounds, park, or property works a verified damages claim for presented shall in writing and filed with such officer and the clerk or secretary legislative body municipality . ninety days . . within after (Act accident has occurred’. Deering’s No. Gen. Laws.) day On the same another duplicating act the lan-
64 quoted, guage but above with the words ‘and/or any public carelessness of officer’ inserted after the words property’, (Act ‘works or went into effect. No. Deer- Laws.) ing's a provision Gen. Act 5149 also contains No. authorizing municipality compromise pay any to such provision. claims. 5150 Act No. omits Nowhere provision any requiring of such filing either act is precedent commencing maintaining condition to claim a damages for referred to. Nor does the charter action any requiring City provision Pomona contain to such or claims as condition maintenance (Stats. 1913.) 1911, p. action thereon. it not a claim in
“To hold that essential file accord bringing have the this statute before suit would ance with rendering meaningless nugatory, effect statute legislative permitting a to file purposeless gesture, claimant do only if he so. This conclusion finds chose claim convincing support City v. San in the decision of Bancroft 712], 120 wherein charter of Diego, Cal. 432 Pac. [52 damages that ‘all claims for city provided city presented council against must to the common be months after the occurrence the clerk within six with filed damages deciding In the ease the arose’. from which the say argued ‘But it the charter does that court said: brought presented, the claim is so shall be unless no action right as to the to sue. To hold is there a limitation that nor expiration city sued demand after the may be having presented, months, the demand not been would of six notwithstanding charter, such that, demand be hold .to imagine I motive the re presented. can no not be need present the fatal. a failure to so demand is quirement unless presented read “Claims must within six If law had present them shall not affect their months, a failure to so but have been at a loss validity,” we should understand self-professed have been a law. It would purpose of the present failure absurdity. implication I that a think the express plain have as would been an fatal to is as a claim is expressly ap This decision was effect.’ declaration City of Western Salt Co. v. San later proved case 345], it was wherein held Diego, 181 Cal. complaint sustained to properly general demurrer damages suffered Diego, reason city of San against collapse dam’, Otay of the ‘lower no which contained prior presentation allegation of damages. of "a claim for ‘‘ the ease of Crescent etc. Go. Los Wharf ap Angeles, 1028], reviewing Cal. 430 ap proving quoted the two cases above cited the court with proval following portion of ‘The the latter decision: *10 type legislation, requiring reason this of to first claims presented body legislative county to or city the of before brought, early in suit is thus stated an case in this state: prevent legislature think the intention of “We to the litigation county by being revenue of the from in consumed providing opportunity adjustment that of an amicable should county to charged be first afforded it can be with before . applies the cost of suit.” . . This reason with like force Ip. against city, originating.’ to all claims however view foregoing of the statement of the law we must that assume of legislature in enactment the act of took notice interpreted announced, of the thus law as and deemed express unnecessary in to terms that which the law would authorizing The inclusion imply. compromise clause supports assumption. It such claims this would therefore appear that the failure to file their bringing claim before suit plaintiffs recovering against would bar But plaintiffs Pomona. contend that inasmuch happened eight some accident and one-half months before act, effective of this they comply date could not there respect requirement filing to the with their claim within ninety days after accident true, occurred. This is but they had, August 14, 1931, still three and one-half months remaining before their cause of action would become barred (Sec. by applicable the statute of limitation to it. 340, Code Procedure.) They of Civil did not fact commence their thereon until December 1931. During action the inter they vening period ample opportunity had comply to with statute their advantage right claim. No could fully gained city be claimed reason of the fact days ninety the claim was not that filed within after the oc accident, requirement currence of the because in that case of the new law not any rights could attach. Nor were impaired by plaintiffs this action of the legislature; nor can that provisions it be said to enforce the of the act would making it retroactive, result for the act is remedial change pro- legislature power nature has rules may remedies, changes applicable cedure or be made and such upon, yet pending actions or to causes of sued action destroyed obligations provided rights that vested are not Angeles, (Thompson County impaired. Los contracts just In. App. (2d) 185].) 140 Cal. the case damages held failure a claim for cited this court to file resulting arising an from a condition from accident defective under highway, this act occurred two weeks before effect, brought to the consideration went into was fatal action thereon.
“For foregoing reason and authorities cited we are failure constrained to hold prior commencing their file claim their action herein bars recovery them from from the of Pomona. These con- question it unnecessary render consider the clusions liability city under evidence.” .the judgments is, The are, each affirmed. Dissenting.
THOMPSON, J., I dissent. concerning liability The of the defendant- *11 very simple may very properly appellant is be stated as guilty negligence in May it be main- follows: considered light pole taining street, the curb line of an electric inside intersecting of an feet from the curb line street and sixteen the inter- first-mentioned street is narrowed at where the words, ordinarily other would In reasonable section? prudence man, guided of care those considerations ordinarily regulate human the conduct of affairs which have pole elsewhere, or would he have compelled felt locate away from highway to locate it off and content rest- been were ing that those who to make use of upon the assurance lines, recognize pavement would curb the street stray? I beyond they should am natural barrier ordinary prudence would dictate compelled to conclude away only be located off that the should traffic, and that for vehicular portion constructed location. I believe that predicated may not City Alhambra, v. 6 announced principle Waldorf 207], (2d) supported (2d) App. Cal. present applicable cited, case therein authorities controlling. Barrett Southern v. should be Pacific 481], for plaintiff Cal. 154 no comfort very patent reason that obstruction was main- highway. tained middle of the Rehearing Thompson, J., rehearing. denied. voted for a No. December 31, A. 15537. Bank.
[L. 1935.] BART, Appellant, ANNA FERDINAND E. STREULI al., Respondents.
et Appellant. Chas. M. John C. Kleber and Delameter Meserve, Mumper, Hughes Respondents. & Robertson appeal THE COURT. This ismotion an to dismiss judgment in the above-entitled affirm cause. Plain *12 defendants, taking purchase property real tiff sold back money mortgage mortgage $1600. The contained provisions against removal or demolition usual build required ing, cultivate, that the defendants fertilize and prune growing brought trees. Plaintiff this action to fore-