Opinion
Department Two
Appeal from an order of the Superior Court of Fresno County denying a new trial.
COUNSEL:
Church & Corey, for Appellants.
Sayle & Corey, for Respondents.
JUDGES: McFarland, J. De Haven, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
This action was brought to recover damages for wrongfully digging, plowing, and scraping away the soil of plaintiffs' land, and for an injunction against continuing the said alleged trespasses. The jury returned a verdict for plaintiffs in the sum of $ 750, for which judgment was entered. Defendant appeals from an order denying a motion for a new trial.
1. The main point urged by appellant is, that the trial court erred in denying a motion for a nonsuit, made upon the ground "that no evidence has been adduced connecting the Fresno Canal and Irrigation Company with the alleged trespass set out in the complaint."
The appellant, a corporation, owned a canal running along the northern side of respondents' land; and for the purpose of raising and otherwise improving the canal, the top soil of respondents' land was plowed up to an average depth of about one foot, and over a space about sixty feet wide and a quarter of a mile long, and scraped off and piled up on the bank of said canal. The work by which this was accomplished was actually done by one Applegarth, and appellant contends that it was not responsible for the result of such work. But it sufficiently appears from the evidence that one Manuel was the surveyor of the appellant, regularly employed at a monthly salary, and that it was his business to have the work done on the canal; that he made some kind of contract (the particulars of which do not appear) with said Applegarth to do said work, and that by said contract said Applegarth was to take the soil from respondents' land. When A makes an independent contract with B, by which the latter is to do for the former a piece of work in itself harmless, and B does the work so carelessly or unskillfully as to injure a third party, A, as a general rule, is not liable. But when the contract is in its very nature and necessarily injurious to a third party, then the doctrine of respondeat superior applies. In such a case the injury does not result from the manner in which the work is done, but from the fact that it is done at all. In Boswell v. Laird , 8 Cal. 469, 68 Am. Dec. 345, frequently cited as a strong case against the liability of principals, the court, by Judge Field, says: "If the mode and manner which constituted the defect by which the injuries complained of were occasioned had been inherent in the plan, and this plan had been devised by Laird and Chambers, which the contractors were engaged to carry out, then liability would attach to Laird and Chambers." In the case at bar, the carrying away of respondents' soil was the very thing contracted for; and it inherently and necessarily caused the injury complained of.
Without reviewing the evidence here at length, it is sufficient to say, that in our opinion, the agency of Manuel to act for the appellant in the matter of repairing and enlarging the canal clearly appears. It was not necessary that his employment for that purpose should have been in writing.
2. The second point made by appellant is, that the verdict is not sustained by the evidence. This, however, is substantially the same as the one made about the nonsuit, and is not tenable.
3. The third and last point made by appellant [30 P. 962] is, that the court erred in allowing respondent to ask the witness Shipp the following question: "Would you give as much for that eighty acres of land since the digging and scraping as you would have given for that eighty acres of land before?" Assuming that this question was not in proper form, still it is impossible to see how it could have prejudiced appellant. Before the question was asked, the witness had testified at considerable length to the effect that he was a land-owner, and well acquainted with the nature of the soil and the value of land where the premises described in the complaint were situated; and that the digging and scraping had taken away from the value of the land. He was afterwards examined minutely, and testified that the land was worth $ 250 per acre before the scraping; and he said: "I think this digging and scraping has damaged that part dug and scraped to the extent of its whole value," and that the acres thus injured "would not be worth anything now." In the face of this testimony, it was of no importance whether or not he said he would not give as much for the land after the scraping as before; of course he would not.
The order appealed from is affirmed.