Connor v. Grosso , 41 Cal. 2d 229 ( 1953 )

TRAYNOR, J.

This action was consolidated for trial with Herzog v. Grosso, ante, p. 219 [259 P.2d 429], The trial court found that defendants Paul Grosso and Madolyn Grosso deposited 3,184 cubic yards of material on plaintiff Nan Connor’s property and entered judgment against both defendants for $4,362.08.

Defendant Madolyn Grosso contends that the award of damages against her is not supported by the evidence.^* We agree. The fact that Paul Grosso was her husband and that he held the property with her as a joint tenant does not establish her liability. (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 211].) In Brown v. Oxtoby, 45 Cal.App.2d 702, 709 [114 P.2d 622], and similar cases relied upon by plaintiff, there was evidence that the wife actively participated in the tort, or that the husband acted as her agent, or that she ratified his conduct. Plaintiff pleaded a cause of action against Madolyn Grosso, but no evidence was introduced to support her allegations, although the case was vigorously contested and on trial for seven days. The trial court will therefore be directed to enter judgment for Madolyn Grosso. (Code Civ. Proc., §53;, see Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 835 [256 P.2d 933].)

The trial court found that defendants ‘ ‘ dumped upon said real property of plaintiff 3,184 cubic yards of dirt, rocks and other debris” and that the “cost of removal of said material so unlawfully dumped upon said real property of plaintiff, including slippage necessarily incidental to such removal, is the sum of $4,362.08.” Defendants’ contention that this finding is not supported by substantial evidence is sustained by the record. Before defendants acquired their property, a considerable amount of dirt had already been dumped on the Connor property by Herzog and Mrs. Schneider in the course of building the road on parcel 3, filling in the ground near the telephone pole, and leveling land between the road on parcels 2 and 3 and the road to the top of the hill. Defendants acquired the hilltop property in March, 1949. Defendant Paul Grosso dumped dirt on the Connor property in November, 1949, when he regraded his road, and again in September, 1950, when he built the ramp across the fill.

One witness, Bert Willis, testified that to restore the Connor property to its natural condition by removing all of the fill and the dirt that would fall in upon removal thereof, would require excavation of 3,184 cubic yards of dirt at a cost of $4,362.08.^* Another witness, Kenneth Cook, testified that the last fill, in September, 1950, amounted to 1,570½ yards. According to Willis, removal of 1,570½ yards would cost $2,625.84. Witnesses called by defendants testified that Grosso dumped only 150 yards of dirt on the Connor property but the trier of fact could, of course, resolve the conflict in the evidence in favor of plaintiff. Neither party introduced evidence showing the depreciation in value of plaintiff’s property caused by the dumping of the dirt.

Defendant, of course, should be required to pay the cost of removing any slippage that may reasonably occur in the course of removing the material that he dumped on plaintiff’s property. The evidence, viewed most favorably to plaintiff, shows that Grosso actually dumped 1,570½ cubic yards of material on plaintiff’s property and that to remove all the fill, including material dumped by other persons, plus the dirt that would slide down the hill from parcels 2 and 3 during such removal, it would be necessary to excavate 3,184 cubic yards. There is no evidence that the material previously dumped by other persons, lying under the dirt subsequently dumped by Grosso, would have to be removed in order to remove the dirt dumped by him. Nor is there any evidence to show the amount of dirt that will slide down the hill if only the 1,570½ yards dumped by Grosso were removed. Since Grosso did not act in concert with the other persons dumping dirt on the Connor land, he cannot be required to pay for removal of the dirt dumped by them. (Slater v. Pacific American Oil Co., 212 Cal. 648, 654 [300 P. 31] ; Prosser, Torts, p. 333.) The judgment holds Grosso responsible for all the dirt fill on the Connor property and is thus without adequate support in the evidence.

Defendant argues that the error in the award of damages requires a complete new trial. After a lengthy trial, the trial court resolved the question of liability in favor of plaintiff and the question of exemplary damages in favor of defendants. The only issue on which the judgment is not supported by the evidence is the amount of compensatory damages, and we are of the opinion that a separate trial on that issue will expedite the administration of justice and will not deny defendant-Paul Grosso a fair trial, for he has already had a fair trial on the issue of liability, and the trial court’s findings on that issue are amply supported by the evidence.

The judgment against defendant Madolyn A. Grosso is reversed, and the trial court is directed to enter judgment in her favor. The judgment against defendant Paul A. Grosso is reversed, and the trial court is directed to retry the issue of compensatory damages only. Madolyn Grosso shall recover her costs on appeal. The other parties shall bear their own costs. .

Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.

* In the companion case of Herzog v. Grosso, ante, p. 219 [259 P.2d 429], the award of damages was against Paul Grosso only.

* Willis testified that he based his computation on the amount of filled ground lying between the red line and the dotted line on plaintiff’s exhibit C-2. That exhibit is a survey map prepared by witness Cook. He testified that the red line represented the boundary between the Connor property and parcels 2 and 3, and that the dotted line indicated the .bottom of the fill on the Connor property. Cook stated that he dug four test holes in the fill and concluded that only part of the dirt in the fill could be attributed to the last dumping on the Connor land.

The trial court asked Willis, “I take it from your testimony so far, Mr. Willis, that what you are conveying is that it would require the removal of 3,184 yards to restore the Connor property to its original ground level.” (Emphasis added.) The witness replied, “That is right, sir.’’