LLOYD C. HARLOW et al., Respondents, v. STANDARD IMPROVEMENT COMPANY, Appellant, 145 Cal. 477

HARRISON, C. The plaintiffs seek by this action to recover from the defendant damages sustained by them through its negligence.

It is alleged in the complaint that on August 13, 1900, the defendant was engaged in doing certain street-work on Kennedy Street, in the city of Oakland, in front of the residence of the plaintiffs, making use therefor of a steam-roller, and that while so engaged the roller, by reason of the negligence and carelessness of the persons managing the same, ran against the building of the plaintiffs and injured it, and the fences, sidewalk, shrubbery, and lawns surrounding it, to their damage in the sum of two thousand dollars.

The cause was tried by a jury and a verdict rendered in favor of the plaintiffs for one thousand dollars. Prom the judgment entered thereon and from an order denying a new trial the defendant has appealed. At the close of the plaintiffs’ case the defendant moved for a nonsuit upon the ground that they had failed to establish a joint ownership of the premises. The -motion was denied, and this ruling is now assigned by the appellant as error.

It is alleged in the complaint that at the time of the occurrence the plaintiffs were, and still are, husband and wife, and the owners of and possessed of the building and lot upon which it stood, and this allegation was denied in the answer. There was no evidence as to the record title of the property, or that it had ever been conveyed to the plaintiffs, or either of them, but there was testimony that the house was built by them, and that they had occupied it for about ten years. The testimony of Mrs.

Harlow that she and her husband had the house built was sufficient evidence of their joint ownership to justify the ruling of the court. Under

section 161 of the Civil Code the husband and wife may hold property as joint tenants, tenants in common, or as community property; and in the absence of any evidence of the source of the moneys with which the house was built, or of the manner in which the property was acquired, there is no presumption that it was community property, or the separate property of either spouse, rather than that it was held by them in joint tenancy, or as tenants in common. (See Wagoner v. Silva, 139 Cal. 559.) Under

section 384 of the Code of Civil Procedure, plaintiffs, as cotenants or tenants in common, are entitled to maintain the action. The manner in which it appeared that the injury was caused sufficiently sustains the finding of the jury that it was through the negligence of the defendant. (Judson v. Giant Powder Co., 107 Cal. 549.) The case is one in which the maxim Bes ipsa loquitur is peculiarly applicable.

The offer on the part of the defendant to show that forty-eight hours after the injury it offered to put the building back in as good condition as it was before, or to defray the expense thereof, was properly refused. The only issues presented for trial by its answer were the plaintiffs’ ownership of the property, the negligence of the defendant in causing the injury, and the amount of damage done to the property.

The trial was chiefly occupied with the latter issue, upon which a large amount of testimony was given by each of the parties to the action, and the amount of the damage was determined by the verdict of the jury. The amount of the damage sustained by the property was the same, irrespective of the person by whom the repairs should be made, and there is no averment in the answer, nor did the defendant offer to show at the trial, nor does it now claim, that the repairs could have been made by it at any less cost than if made by the plaintiffs, or by whomsoever they might employ.

The rule which obtains in an action for damages arising out of the breach of a contract that it is the duty of the injured party, if within his power, to protect himself against any increase of damage that may accrue after the breach, has no application under the facts of the present case. Here the damage was complete at the time of the injury, and before the offer of defendant, and in the absence of any showing to the contrary the cost of the repairs would be the same whether made by the defendant or the plaintiffs.

If for any reason the cost would have been less to the defendant, that was a matter for special defense which should have been pleaded as well as made known to the plaintiffs at the time of the offer. The jury were, moreover, instructed that if it was shown that the plaintiffs could have prevented any part of the loss by prompt repairs they were bound to do so. The injury to the house was committed August 13th. Mrs. Harlow testified that they did not remove from the house until September 21st.

The present action was commenced September 20th, and the court instructed the jury that the plaintiffs could only recover the actual damage suffered by them prior to the time that the action was commenced. This was, in effect, an instruction that they were not entitled to recover for any damage sustained by reason of being compelled to seek a new residence. Under these instructions it is not to be assumed that the jury included in their verdict any damage sustained by reason of any delay in repairing the house. It cannot be held that the verdict was excessive, or unsustained by the evidence.

It was shown that the cement walk had been broken up, the fence in front of the house demolished, the lawn and shrubbery destroyed, the house itself struck by the roller with such force that it was displaced from its position upon its foundations and permanently injured.

Testimony was given by several experts that the amount of damage was greater than that awarded by the jury, and although it was shown on the part of the defendant that a portion of this damage could be repaired for less than the amount of the verdict, the jury were at liberty to consider— what is apparent to any one—-that the permanent injury to the building, by displacing it from its foundations, breaking its chimneys, and destroying the plastering, is a greater damage than the mere cost of patching it up so as to make it serviceable. The judgment and order denying a new trial should be affirmed.

Gray, C., and Cooper, C., concurred. For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed. Van Dyke, J., Angellotti, J., Shaw, J. 48 Am. St. Rep. 146.