Opinion
4-14-1958
William V. SMITH, Plaintiff and Appellant, v. GENERAL PETROLEUM COMPANY et al., Defendants, Kern County Land Company, Defendant and Appellant. * Civ. 5637.
Oscar F. Catalano, Bakersfield, for appellant. Borton, Petrini, Conron & Brown, Bakersfield, for respondent.
William V. SMITH, Plaintiff and Appellant,
v.
GENERAL PETROLEUM COMPANY et al., Defendants,
Kern County Land Company, Defendant and Appellant. *
Oscar F. Catalano, Bakersfield, for appellant.
Borton, Petrini, Conron & Brown, Bakersfield, for respondent.
BARNARD, Presiding Justice.
This is an appeal from a judgment of dismissal in an action for damages for personal injuries. The defendant's demurrer to the first amended complaint had been sustained, with leave to amend, but the plaintiff elected not to amend.
The defendant owned land adjoining a public highway, and the roots of some large trees on this right of way extended into the ground underneath the defendant's property. The defendant had given the county permission to enter upon its land for the purpose of removing these trees and roots. Long prior thereto the defendant had permitted an oil company to install an underground pipeline near this right of way. While the plaintiff, an employee of the county, was using heavy equipment in removing these roots from the defendant's land the steel blade of the equipment came into contact with this steel pipeline, through which highly combustible gases and fluids were flowing, causing an explosion which injured the plaintiff.
In addition to these general facts the amended complaint alleged that the defendant and Kern County desired and wished to have these trees and roots removed and excavated from said right of way and from defendant's land; that at the time of granting permission to do this work the defendant knew that it would be necessary for the county and its employees to use heavy steel equipment in doing this work, and negligently failed to advise the county and its employees, including the plaintiff, of the fact that this pipeline which carried dangerous combustible gases and fluids was buried underneath and near the surface of the defendant's land without being so marked, and near or at the place where it was necessary for the county's employees and the plaintiff to use heavy equipment in order to remove said trees and roots; that the defendant negligently failed to place markers at sufficient intervals to advise the plaintiff of the existence of this pipeline containing dangerous gases and fluids, and negligently failed to advise the plaintiff that there buried steel pipes carried highly dangerous and combustible gases and fluids; and that, as a direct and proximate result of the negligence of the defendant, the plaintiff suffered certain permanent injuries.
The question presented is as to whether the amended complaint sufficiently stated a cause of action. In passing upon the sufficiency of such a complaint its allegations must be liberally construed with a view to substantial justice between the parties, the pleading must be reasonably interpreted and read as a whole, and any defects in the pleading which do not affect the substantial rights of the parties should be disregarded. Schaefer v. Berinstein, 140 Cal.App.2d 278, 295 P.2d 113.
The appellant contends that it appears from this complaint that he, as an employee of Kern County and with the knowledge and consent of the defendant, went upon the defendant's property for the purpose of doing work which was of common interest and mutual benefit to both the county and the defendant; that an underground and concealed pipeline containing dangerous gases and fluids was maintained on the premises with the knowledge and consent of the defendant; that the defendant negligently failed to give the plaintiff notice or warning of the underground pipeline and its contents; and that while plaintiff was doing the work with the necessary equipment the steel blade thereof came in contact with the concealed pipeline, causing an explosion resulting in his injuries. It is argued that it sufficiently appears from the complaint that the appellant was an invitee on these premises, for the purpose of doing work which was of benefit to both the county and the respondent, and that the respondent owed him the duty of exercising reasonable care to keep its premises in a reasonably safe condition, and to give warning of latent or concealed perils. It is further argued that even if it be assumed that appellant's status at the time was that of a licensee, the concealed pipeline containing highly combustible and dangerous gases and fluids amounted to a trap to one who was thus working on respondent's land with such equipment; that the court therefore erred in sustaining the general demurrer to the amended complaint; and that the complaint was also sufficient as against the special demurrer which was filed.
The respondent contends that the appellant was on these premises at this time as a mere licensee; that the allegation that the respondent desired and wished that this work be done is a mere conclusion; that it appears from the complaint that the appellant was on this land by permission only, and there is nothing to show that he was there in any capacity except that of a licensee, citing Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 267 P.2d 841; and that being a licensee the respondent owed him no duty other than to refrain from inflicting injury upon him by wanton or willful misconduct, citing Knight v. Kaiser Co., 48 Cal.2d 778, 312 P.2d 1089. It is further argued that there is nothing in the complaint to indicate that this buried pipeline was a trap; that since it was buried the pipeline itself could do no harm; that no injuries would have been incurred had it not been for the affirmative conduct of the appellant in digging beneath the ground with his blade; and that it follows that no duty devolved upon the respondent to inform the appellant concerning the existence or location of the pipeline.
In Pauly v. King, 44 Cal.2d 649, 284 P.2d 487, the general rule with respect to the duty owned by the property owner to an invitee is stated to be that the owner must use reasonable care to keep his premises in a reasonably safe condition and give warning of any latent or concealed perils. As pointed out in Knight v. Kaiser Co., the rule that an owner owes no duty to a licensee, except for wanton or willful injury, is applicable where the injury is caused by a mere defect in the premises. It is well recognized, however, that in cases where injury results from some conduct of the owner as distinguished from the condition of the premises, the landowner may be liable for failure to exercise ordinary care toward a licensee whose presence on the land is known to him. Oettinger v. Stewart, 24 Cal.2d 133, 148 P.2d 19, 21, 156 A.L.R. 1221. In that case, the court said: 'The courts have frequently made general statements to the effect that the only duty to a licensee is to abstain from willful or wanton injury. * * * On their facts, however, all of these cases involved injuries resulting from a defective condition of the premises, as distinguished from active conduct of the possessor or his employees. * * * In the present case it is apparent that plaintiff's presence on the premises was known to defendant at the time of the accident and that the accident did not result from a defective condition of the premises. Accordingly, even if plaintiff were a licensee rather than a business visitor, it is clear that defendant had a duty to exercise ordinary care to avoid injuring her, * * *'.
In the instant case, the presence of the appellant was known to the respondent and the accident did not occur merely as the result of a defective condition of the premises. Even if the appellant was a licensee, and even though a different standard of care might be applicable, the respondent had a duty to exercise ordinary care to avoid injuring him. The premises were not defective in any ordinary sense, and the conduct of the respondent is the important thing in determining what caused the accident and whether or not ordinary care was used. The buried pipeline, carrying dangerous gases and fluids, would naturally constitute something in the nature of a trap to one who did not know of its presence. Its existence and location was known to the respondent and whether, in the exercise of ordinary care, it should have warned the appellant presented a factual question in any event. While the allegation that both the county and the respondent desired and wished this work done is more or less a conclusion, a benefit to the respondent is strongly indicated. Ordinarily, the presence of large trees with far-reaching roots is detrimental to land and interferes with crops by withdrawing water and giving unwanted shade. Under the circumstances, it cannot be held as a matter of law that no mutual benefit was expected from this operation, and the complaint was sufficient to raise the factual question as to whether or not this employee of the county, in doing this work, was an invitee rather that a mere licensee. Whether he was an invitee or a mere licensee the complaint was sufficient to raise questions of fact as to whether the respondent, in the exercise of reasonable care, should have warned the appellant of this hidden danger, and whether this duty was sufficiently performed. In our opinion, the complaint sufficiently alleged a cause of action.
The respondent contends that its special demurrer was properly sustained on the grounds of uncertainty, ambiguity and unintelligibility. It is argued that the complaint is clearly uncertain and ambiguous since it failed to allege how or in what manner the appellant entered upon the respondent's premises other than as a licensee. The special demurrer was based on the grounds that it did not appear from said complaint how the plaintiff entered the said premises other than as a licensee, and that it did not appear how or in what manner it was alleged that the respondent was negligent or how or in what manner such negligence, if any, had caused any injury to the appellant. The complaint sufficiently alleged how or in what manner the appellant entered these premises, how or in what manner the respondent was negligent, and how and in what manner such negligence caused the injuries complained of. Nothing appears in connection with the special demurrer which requires an affirmance of the judgment.
The judgment is reversed.
GRIFFIN and MUSSELL, JJ., concur
Hearing granted; TRAYNOR, J., not participating. --------------- * Opinion vacated 331 P.2d 645.