Levy-Zentner Co. v. S. Pac. Transp. Co. (74 Cal. App. 2d 762, 1977)

Opinion

TAYLOR, P. J.

In these consolidated actions, Southern Pacific Transportation Company (Southern Pacific) appeals from adverse judgments entered on ten-two verdicts in favor of the tenants and owners, who sought property damages after Southern Pacific’s Kentucky Street warehouse (warehouse) was completely destroyed by a five-alarm fire on June 29, On its appeals, Southern Pacific contends that the cumulative effect of the following errors on the only and close issue of its liability requires, reversal: 1) insufficiency of the evidence to support the judgment and verdict, as there was no substantial evidence of its negligence; 2) the court’s conditional res ipsa instruction and refusal of Southern Pacific’s proffered instructions on contributory negligence and BAJI No. 3.13 (right to assume the good conduct of others); 3) the admission into evidence of certain accident reports prepared by some of Southern Pacific’s employees; 4) the introduction into evidence of a request for the admission of interrogatories propounded by Southern Pacific to its codefendant Reikes, and Reikes’ responses; and 5) the exclusion of Southern Pacific’s evidence as to its duty of reasonable care under the particular economic circumstances of a low rent warehouse.

The tenants and owners appeal from that portion of the judgments after a court trial denying them prejudgment interest. They contend that Civil Code section 3287, subdivision (a), applies to tort actions for property damage, and that in the instant case their damages were certain or capable of being made certain within the language of the statute, We have concluded that the portion of the judgment on the verdict against Southern Pacific must be affirmed; however, the portion of the judgment denying prejudgment interest must be reversed as prejudgment interest pursuant to Civil Code section 3287, subdivision (a), is available as a matter of law in tort actions for property damages from the date when the defendant has notice of an amount certain or capable of being made certain.

I Southern Pacific’s Appeal

Viewing the record most strongly in favor of the judgment on the verdict against Southern Pacific, the following facts appear: In 1969, Southern Pacific’s warehouse was located in the Mission Bay Yard, an unfenced freight switching yard that is part of a complex of transportation facilities located near San Francisco Bay.

The warehouse, a wooden shed built in 1907, fronted to the east on 1400 Third Street; to the west, there was a railroad switching yard. The warehouse was 80 feet wide and originally 1,064 feet long; however, an earlier fire on February 7, 1969, had destroyed approximately 113 feet of the north end of the warehouse. The warehouse rested on piers approximately three feet above the ground on the rail side to accommodate freight-hauling wagons. The open space beneath was insufficiently enclosed with boards and wire screens, as a number of screens and boards were missing or loose. Thus, the southern end of the warehouse was not enclosed. As there were no barriers, the 951-foot length of the space underneath the building at the time of the June 29, 1969 fire created a wind tunnel effect.

The warehouse was the oldest building in the Mission Bay Yard, and characterized as hazardous by experts because of its age, design and all wood construction. The individual bays exceeded 10,000 square feet and made containment of the fire difficult. As the result of the poor condition of the boards and screens, there was access to the area below the warehouse for itinerants. In addition, there was an accumulation of debris borne across the yard by the prevailing westerly winds.

Immediately abutting the southern end of the warehouse was a 125-foot extension known as the Coors Building. In 1947, Levy-Zentner built a warehouse a few feet south of the Coors Building. Levy-Zentner’s building was 300 feet long, but 13 feet narrower than the neighboring buildings, and had a concrete foundation. The Levy-Zentner building had a standard fire wall, “the most foolproof fire protection tool available.”

The Southern Pacific warehouse had no fire walls and was an “open area” from “a fire protection point of view.” There were no automatic or manual alarm systems or a sprinkler system in the warehouse or nearby area. The available city fire hydrants were inadequate and Southern Pacific did not provide additional private hydrants of its own.

The day of the fire, Sunday, June 29, 1969, was clear, windy and quiet. The only tenant activity at the warehouse was a brief visit by Mr. S. DiLeo, of L & S Drayage, between 12:45 and 1:30 p.m. There was some switching activity in the yard, but none on Track 178, the one immediately adjacent to the warehouse, Coors, and Levy-Zentner buildings. At this time, the area “is virtually abandoned except for passing police cars.” “Most security rounds are set up to give the greatest coverage of properties during periods of time when they are otherwise unattended.” .On June 29, 1969, Southern Pacific had only one patrolman for all of its spurs in the City and County of San Francisco. No one was patrolling the Mission Bay Yard.

Southern Pacific’s Mission Bay yardmaster, William Honsinger, was the first witness to the fire. At 5:05 p.m., he was standing outside the yard office southwest of the warehouse about three-fourths of the way toward its north end. Honsinger went into the yard office and telephoned Mr. McDonnell of Southern Pacific’s police department to advise him that there was smoke near Track 178.

Honsinger then took a two-gallon water fire extinguisher from the yard office and drove down between the tracks to a point five tracks west of Track 178. Honsinger did not call the fire department as the fire appeared too insignificant to him. He crossed three or four of the tracks and then realized that the smoke was coming from underneath, rather than beside, the warehouse. Honsinger returned to his vehicle and radioed McDonnell. McDonnell initially did not notify the fire department as he thought Honsinger could handle the matter on his own. McDonnell’s report to Stone, Southern Pacific’s chief special agent, indicated that he had telephoned the fire department at 5:30 p.m. Honsinger estimated the elapsed time between the first telephone call and subsequent radio call as about five minutes. Honsinger first stated that he telephoned the fire department at the first sighting at 5:05 p.m., but then admitted that he never notified the fire department.

Southern Pacific Police Patrolman Dennis Barlesi intercepted Hon-singer’s radio call while he was at Fourth and Berry Streets, about 5:10 or 5:15 p.m. Barlesi could not remember a request made by Honsinger to notify the San Francisco Fire Department. Barlesi immediately drove to the warehouse, parked on the east side, and went around to the west side of the warehouse to combat the fire with a small C02 fire extinguisher. He saw smoke coming from underneath the warehouse and the floor burning from beneath. He also saw “Flames on the underpart of the loading dock creeping along the loading dock itself.” Barlesi did not notify the fire department as he assumed that someone had already done so. By this time, neither he nor Honsinger nor McDonnell had notified the San Francisco Fire Department.

The fire department’s official records indicated that the first alarm was received at 5:18 p.m., 13 minutes after it was first seen by Honsinger. According to the tenants’ and owners’ expert Berg, this 13-minute delay in reporting the fire made the difference between a fire that might have been contained and the violent, uncontrollable blaze that occurred.

Engine Company 19, stationed one block from the warehouse, was the first fire unit to arrive on the scene; Company 19 arrived on the east side of the warehouse at about 5:19 p.m., within one and one-half minutes of the first alarm. Milton Anderson, a fire-fighter in No. 19, stated that they forcibly opened a door on the east side of the warehouse at 5:21 p.m. and that approximately 30 seconds later there was an explosion which knocked down and injured nearby fire fighters. At the same time, on the west side of the warehouse, Barlesi was similarly injured by the sudden blast.

San Francisco Fire Investigator, Robert Gerhow, and Inspector O’Donnell, stationed at Engine Company 14 at Oak and Franklin Streets, responded to the second alarm at 5:23 p.m., and arrived at about the time of the third alarm (5:23 p.m.). The city’s investigation began with an interview with Honsinger in the yard office, but was subsequently impeded because the yard office records were neither complete nor up to date.

Joel Springer and his son, Joel, Jr., were outside a firehouse on Third and Howard Streets when they heard the first alarm and responded. The Springers arrived at the fire at about 5:23 p.m. Both were members of the Phoenix Society of San Francisco, an organization of fire photographers. The Springers began to photograph and film the fire at 5:24 or 5:25 p.m., and obtained an unusually complete film record that was used by the experts of the parties.

The fourth alarm was given at 5:35 or 5:37 p.m.; the fifth at 5:47 p.m. Before the fire was finally contained, it had consumed the warehouse, the Coors Building, the Browning warehouse across Third Street, and half the Levy-Zentner building, as well as Company 19’s fire truck.

Expert Berg indicated that a reasonable maximum distance from a hydrant to a building would be 100-150 feet. Certain points on the east side of the warehouse were 500 feet from the city hydrants on Third Street; on the west side, the warehouse could be reached only by 1,500 feet of hoses laid across the railroad tracks to a hydrant at the intersection of 9th and 16th Streets. Berg further opined that the observations and recommendations of a fire protection engineer are meaningless unless the organization is sufficiently fire conscious and willing to implement them.

Southern Pacific’s chief fire protection engineer, George Rear, limited his annual inspections of the Mission Bay Yard to making certain that the tenants did not introduce a major fire problem to the building. He did not have keys to inspect the interior premises if any of the tenants were absent. Honsinger also neither inspected nor talked with the tenants of the warehouse. Rear could not request repairs over $500 without the approval of the chief engineer. For repairs under $500, Rear dealt with the superintendent of the bridge and building department who, in turn, would instruct his men to do it. This procedure meant some delays but was a considerable improvement over the more cumbersome overlapping paperwork procedures that existed before 1960.

Robert Bushner, the chief clerk of Southern Pacific’s real estate department, testified that his department did not inspect the company’s facilities but depended on the report of the fire engineers, or waited for the complaint of a tenant. Bushner could not recall that in February 1969, Olds, an employee of codefendant Reikes (another tenant), had complained about itinerant activity in and around the warehouse.

Rear assumed that he was required to inspect the premises of the tenants but, as indicated above, had no .keys to do so in the absence of the tenants. Neither McDonnell nor Clarence Champlin, Southern Pacific’s chief special agent of its police department, thought he had responsibility for the leased areas. McDonnell, however, indicated that he would have patrolled the vacant areas of the warehouse if there had been any in June 1969. In fact, about 150 linear feet in the center of the warehouse were not leased at that time.

Southern Pacific’s fire prevention engineer, Klehs, indicated that the tenants were responsible for cleaning up around the warehouse, although Southern Pacific was responsible for keeping clean the areas of the warehouse it occupied solely. The precise cleanup obligations of Southern Pacific and its tenants were determined by the company’s real estate department. The real estate department never conferred with the fire prevention engineers or the police department and neither made nor had knowledge of any inspections.

Champlin assumed that his agents were inspecting for weeds or debris near the warehouse. His subordinate, McDonnell, however, was equivocal on that matter.

Although Southern Pacific’s published rules and regulations required inspection of areas underneath the warehouse, as a precaution against itinerant-caused fires, McDonnell asserted that the area underneath the warehouse was outside his area of inspection.

Under the circumstances, none of the experts could establish the cause of the fire with certainty. Although Honsinger first believed the fire was a small grass fire between the warehouse and Track 178, upon closer inspection he realized that the smoke was emanating from beneath the warehouse. He so indicated to Gerhaw, Klehs, McDonnell and Barlesi, who overheard Honsinger’s radio call to McDonnell. San Francisco firefighter Anderson also saw the smoke coming from underneath the warehouse. Anderson, after opening the door, saw a hazy glow or hue rather than evidence of burning. The white color, pattern and source of the smoke also indicated to Berg and Gerhow that the fire began on the ground under the warehouse rather than within it. Gerhow and Berg concluded that it was almost a certainty that the fire began underneath the warehouse.

The experts arrived at their theory of a fire started underneath the warehouse, probably by itinerant activity, by a process of elimination. There was no evidence of lightning. Itinerant activity was further confirmed by the fact that the fire began at a single small point source. Spontaneous combustion could not occur in an area as well ventilated as the warehouse. Arson was also eliminated' after an investigation of the conduct of Mr. Baeza (an employee of the codefendant Reikes) who had mailed a picture of the warehouse taken before the fire to Reikes’ home in Omaha with a request for back pay owed to him.

There was no indication of any tenant activity underneath the warehouse nor of tenant use of devices and appliances with heating elements, flammable fuels or spark plugs. Gerhow’s investigation disclosed that all of the electrical wiring in the warehouse was above the floor. Although sparks from Southern Pacific’s railroad switching operations remained as a potential cause, there was no evidence of any switching operations on that quiet Sunday afternoon.

Itinerant activity remained as the single most likely source, since the warehouse, tenants, Southern Pacific employees and city fire department personnel related repeated instances of itinerant activity in the vicinity of the warehouse. S. DiLeo of L & S Drayage occasionally saw itinerants walking along the Third Street side of the building and after finding signs of attempted entiy, kept dogs on his premises. L. Gandolfo, an employee of Robertson Drayage, heard itinerants behind and beneath the building, found hoards broken in back and often found wine bottles when he opened up the office in the morning.

M. Olds, an employee of Reikes, often saw itinerants drinking wine on the front steps of the Reikes premises. Olds also indicated that S. Reikes had three burglaries attributed to itinerants during the six-month period that preceded the February 1969 fire which destroyed M-Shed, another Mission Bay warehouse. Southern Pacific’s fire prevention engineer, Rear, characterized M-Shed as the twin brother of the warehouse “for all practical purposes,” and attributed that earlier fire to itinerant activity, as evidenced by the cardboard beds he had observed underneath M-Shed just before its destruction in the February 1969 fire.

It is readily apparent from the above summary of the pertinent facts that there was ample substantial evidence to sustain the verdict based on Southern Pacific’s negligence. Southern Pacific neglected the rudiments of basic fire protection and inspection in the old wooden warehouse and in violation of its own regulations failed to take precautions against continuing itinerant activity that had also caused the February 1969 fire. In addition, the responsibilities for fire protection of the warehouse and its tenants were diffused and scattered within Southern Pacific’s organization. Further, the uncontroverted evidence indicated that Southern Pacific’s employees behaved carelessly on the afternoon after the discovery of the fire. Although a fire station was only a half a block away from the warehouse, no Southern Pacific employee reported the fire until 25 minutes after the first sighting. The first notification to the fire department came from a stranger, 13 minutes after Honsinger first saw the smoke. This period of time meant the difference between a containable fire and the holocaust that subsequently occurred.

Honsinger’s written report indicated that he notified the fire department at 5:30 p.m., 25 minutes after the first sighting.

Southern Pacific next contends that the court committed reversible error by giving a conditional instruction on res ipsa loquitur. This form of the instruction leaves the final determination as to the application of the doctrine to the trier of fact (Witkin, Cal. Evidence (2d ed.„ 1977 supp.) §§ 260, 260A).

“ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past .experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible’ ” (Bedford v. Re (1973) 9 Cal.3d 593, 597 [108 Cal.Rptr. 364, 510 P.2d 724]). This “common sense inference” arises when the following three conditions are satisfied: 1) the accident must be of a nature which ordinarily does not occur in the absence of someone’s negligence; 2) the accident must have been caused by an agency or instrumentality in the control of a defendant; 3) the injury must not be due to any voluntary action or contribution on the part of plaintiff (Newing v. Cheatham, 15 Cal.3d 351, 359 [124 Cal.Rptr. 193, 540 P.2d 33]).

Southern Pacific argues that all three conditions must be conclusively satisfied before an instruction is proper. However, under the law, these are precisely the questions for the jury to decide. It must determine whether plaintiffs have satisfied the conditions for application of the doctrine of res ipsa loquitur. The issue was so presented in the instructions, as the jury was directed that it must decide whether the accident in question occurred under circumstances in which the three specified conditions were present. The court then directed that if, and only in the event that the jury should find all those conditions to exist, from the happening of the accident, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. These instructions then stated the effect of the inference (cf. Springer v. Reimers, 4 Cal.App.3d 325, 333 [84 Cal.Rptr. 486]).

As stated in Albers v. Greyhound Corp., 4 Cal.App.3d 463, at page 474 [84 CaLRptr. 846]: “ ‘In considering the applicability of res ipsa, it is not for the trial court to ascertain whether a defendant’s negligence is,the more likely explanation of the accident. The court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference. Where reasonable men may differ as to the balance of probabilities, the trial judge must leave the question to the jury. . . . The jury, under appropriate contingent instructions, should have been permitted to conclude whether the three factual conditions of the doctrine had been met [citations].’ ” (See also Rimmele v. Northridge Hosp. Foundation, 46 Cal.App.3d 123 [120 CaLRptr. 39].)

Our above summary of the evidence readily indicates that each of the three conditions was met.

As to the first condition, unlike Zanardi v. Pacific Tel. & Tel. Co., 134 Cal.App.2d 3 [284 P.2d 851], and Tedrow v. Des Moines Housing Corporation, 249 Iowa 766 [87 N.W.2d 463, 86 A.L.R.2d 830], cited by Southern Pacific,, here there was valid proof of the cause of the warehouse fire, not mere conjecture. The photographs, movies, testimony of eyewitnesses, and investigations compelled experts Gerhow and Berg to conclude that the fire began underneath the warehouse. That origin, in a well-ventilated area separated from tenant activity and without electrical wiring, devices, heating elements or other causes of ignition, persuaded the experts that the fire was caused by itinerant activity.

The tenants’ and owners’ task was to present sufficient evidence from which the juiy could decide that negligence is the most likely explanation (Di Mare v. Cresci, 58 Cal.2d 292, 298-299 [23 CaLRptr. 772, 373 P.2d 860]). In making this determination, the jury may consider common knowledge, the testimony of expert witnesses, and the circumstances relating to the particular accident at issue (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446 [247 P.2d 344]). Numerous decisions of the courts of this state have upheld conditional res ipsa loquitur instructions in cases involving fire and smoke damage (Pappas v. Carson, 50 Cal.App.3d 261 [123 CaLRptr. 343]; Homer v. Barber, 229 Cal.App.2d 829 [40 Cal.Rptr. 570, 8 A.L.R.3d 966]; Roddiscraft, Inc. v. Skelton Logging Co., 212 Cal.App.2d 784 [28 Cal.Rptr. 277]).

Roddiscraft, supra, is illustrative, as there the trial court refused a conditional res ipsa loquitur instruction in an action for property damage caused by a forest fire. Although the cause of the fire was unknown, and experts testified to several possible causes, one expert stated that in his opinion the fire was caused by sparks from defendant’s tractor. This court (Division One) affirmed an order granting a new trial and held at page 797: “The inference of negligence which the jury may draw need not be a conclusive or compelling one. Where reasonable men may differ as to the balance of probabilities, the question whether an inference of negligence is to be drawn is one for the jury. (Seneris v. Haas, supra, 45 Cal.2d 811, 827 [291 P.2d 915, 53 A.L.R.2d 124].)” In the instant case, the tenants and owners properly maintained that res ipsa loquitur was conditionally applicable, not only as to the situation in the old warehouse, but also as to the inadequacy of Southern Pacific’s fire prevention and inspection practices, as well as the negligence of its employees, in failing to promptly report the fire to the nearby fire station and prevent its spread.

As to the evidence of the second factor, i.e., whether the accident was caused by an instrumentality in the control of Southern Pacific, there can be no dispute, as Southern Pacific was responsible for policing the area around and underneath the warehouse, and everything occurred on its property. Southern Pacific acknowledged a duty to maintain the boards and screens around the base of the warehouse. Southern Pacific regulations directed its agents to “energetically follow up” any evidence of itinerant activity under wooden platforms. Southern Pacific track maintenance personnel were to control weeds and debris alongside the warehouse.

Nor can Southern Pacific be exculpated by its argument that a “third party” was responsible for the fire. There was evidence that itinerant activity, and the dangers it presented, were patent, foreseen and ignored by Southern Pacific. Where the only reasonably probable causes of the accident are due to the conduct of defendant and a third party, and where defendant is legally responsible for the conduct of the third party, the second condition is satisfied since the defendant is then responsible for all probable instrumentalities that caused the injury (Pappas v. Carson, 50 Cal.App.3d 261, 268 [123 Cal.Rptr. 343]; Rose v. Melody Lane, 39 Cal.2d 481, 486-487 [247 P.2d 335]; Poulsen v. Charlton, 224 Cal.App.2d 262, 268 [36 Cal.Rptr. 347]).

Southern Pacific’s brief is silent as to the third requirement, the absence of any voluntary action by the tenants and owners. Obviously, no one of the tenants and owners was responsible for the condition of the warehouse, the inadequate fire prevention organization and inspections, the response to the fire hazard presented by itinerants, in violation of Southern Pacific’s own regulations, or for the delay and careless behavior of Southern Pacific’s employees on the day of the fire.

Neither Snyder v. Hollingbery, 141 Cal.App.2d 520 [297 P.2d 485], nor Hubbert v. Aztec Brewing Co., 26 Cal.App.2d 664 [80 P.2d 185, 1016], cited by Southern Pacific, are apposite or good law as neither involved the propriety of a conditional res ipsa loquitur instruction. Further, both Snyder and Hubbert antedate the enactment of Evidence Code section 646 (Stats. 1970, ch. 69, § 1), set forth below, which modified and clarified the law, as we indicated in Slater v. Kehoe, 38 Cal.App.3d 819, footnote 11, at page 832 [113 Cal.Rptr. 790]. (See also Cline v. Lund, 31 Cal.App.3d 755, 761-762 [107 Cal.Rptr. 629].)

We conclude that under the facts and circumstances of this case, the conditional res ipsa instruction was properly given.

Southern Pacific next contends prejudicial error in the refusal of its proffered instruction based on BAJI No. 3.13, set forth below.

Preliminarily, we note that Southern Pacific did not challenge the following instruction, based on a modification of BAJI No. 3.79: “If you find that the defendant was negligent and that if negligence was a proximate cause in bringing about damage to the plaintiffs, the fact that there was also negligent conduct of a third person, does not relieve defendant of liability if the defendant realized or should have reasonably realized that a third person might act as he did.”

We think the instruction was properly refused, as it was not supported by the record. The issue was Southern Pacific’s negligence in failing to respond to the fire hazards of the warehouse, including the danger presented by itinerants camping, smoking and cooking underneath the warehouse. The instruction proffered by Southern Pacific would exculpate it of responsibility for a third party’s negligence by overlooking the crucial issue of foreseeability.

As stated in Vesely v. Sager, 5 Cal.3d 153, at pages 163 and 164 [95 Cal.Rptr. 623, 486 P.2d 151]: “... an actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct. [Citations.] Moreover, ‘If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’ (Rest.2d Torts, § 449....)”

The foreseeability of itinerant activity was an obvious issue in this case and the tenants and owners presented evidence strongly indicating that the fire danger presented by itinerants was reasonably foreseeable. As indicated above, Southern Pacific’s fire protection engineer, Rear, admitted that transients caused a fire about every other year on Southern Pacific property, including the fire which destroyed an almost identical warehouse in the Mission Bay Yard in February 1969. Furthermore, Southern Pacific’s rule 139 stated: “Evidence of itinerants camping under wooden platforms around stockyards, or under bridges, must be energetically followed to prevent fires being built in hazardous locations.”

The inadequacy of BAJI No. 3.13 is apparent: Southern Pacific was not entitled to assume that “every other person will perform his duty and obey the law” when the foreseeability that itinerant persons would act as they did was an issue. The instruction, as proposed, was unqualified and misleading. Failure to adequately qualify such an instruction where the foreseeability of another party’s negligence is in issue is error (Angier v. Brack, 56 CaI.App.2d 55, 58-59 [131 P.2d 876]; Carlson v. Shewalter, 110 Cal.App.2d 655, 658-659 [243 P.2d 549]; Vernon v. Owl Truck & Construction Co., 137 Cal.App.2d 437, 438-439 [290 P.2d 603]; Koenig v. Coe, 163 Cal.App.2d 429, 432-433 [329 P.2d 721]). As succinctly noted in Edlund v. Los Angeles Ry. Co., 14 Cal.App.2d 673, at page 675 [58 P.2d 928]: “One may not continue to assume that the law is being observed after knowing or having an opportunity, by the use of reasonable care, to know that it is not being observed.”

In addition, the proffered instruction assumed as true a disputed fact that was central to the issue of liability, namely, that Southern Pacific was exercising ordinary care. Under the instant circumstances, therefore, the instruction was not only confusing and misleading, but invaded the province of the juiy to determine disputed facts (Slovick v. James I. Barnes Constr. Co., 142 Cal.App.2d 618 [298 P.2d 923]).

Although a party is entitled to instructions on his theory of the case, if reasonably supported by the pleadings and the evidence, instructions must be properly selected and framed. The trial court is not required to give instructions which are not correct statements of the law or are incomplete or misleading {Hardin v. Elvitsky, 232 Cal.App.2d 357, 372 [42 CaI.Rptr. 748], and cases cited therein). Furthermore, we agree that an examination of all of the instructions given discloses that the court correctly and adequately covered the issues of negligence, proximate cause, foreseeable intervention and superseding cause. Accordingly, Southern Pacific’s proffered instruction was properly refused (Libby v. Dunston, 72 Cal.App. 494, 496 [237 P. 565]).

Southern Pacific further contends that the court erred in withdrawing contributory negligence as an issue at the end of the trial. The record indicates (as Southern Pacific admits) that the issue was withdrawn from the jury as the court concluded as a matter of law that there was insufficient evidence before the jury to make the theory tenable.

Southern Pacific maintains that G & S Drayage and Economy were contributorily negligent as they were aware of the building’s condition and the presence of transients, but it fails to support its contention by any citation of the record. Assuming, arguendo, that these tenants had knowledge, and that their acquiescence constituted negligence, Southern Pacific was still required to show that their negligence was a proximate cause of their injuries. Gyerman v. United States Lines Co., 7 Cal.3d 488 [102 Cal.Rptr. 795, 498 P.2d 1043], is dispositive of the issue here. In Gyerman, in reversing the judgment against the plaintiff, our Supreme Court held that although there was evidence that plaintiff failed to use ordinary care for his own protection by not stopping work because of unsafe working conditions, this was not sufficient to establish the defense of contributory negligence. The defendant employer alone created the risk of harm, and defendant did not show that the plaintiff’s failure to complain prevented its alleviation. In the instant case, Southern Pacific does not argue and cannot argue that G & S Drayage and Economy concealed the presence of itinerants or that it did not have notice of the condition and its attendant dangers. Nor were G & S Drayage and Economy responsible for correcting these conditions, starting the fire, or in any way contributing to its spread. There was also no evidence that these tenants had any opportunity to report the fire.

Although a party is entitled to instructions on his theory of the case, it is not only improper, but error to instruct on any theory that is inapplicable to issues raised by the pleadings, or is unsupported by the evidence (DeCruz v. Reid, 69 Cal.2d 217, 230 [70 Cal.Rptr. 550, 444 P.2d 342]; Leo v. Dunham, 41 Cal.2d 712, 714 [264 P.2d 1]; Majetich v. Westin, 276 Cal.App.2d 216, 220 [80 Cal.Rptr. 787]; Hamano v. Edelson, 251 Cal.App.2d 784, 790 [60 Cal.Rptr. 62]). We conclude that the contributory negligence issue was properly withdrawn as a matter of law.

Southern Pacific further argues that the trial court erred by admitting its telegraphic report of the accident and the final accident report. There is no merit to this contention. Both reports were business records. The record indicates that Southern Pacific’s terminal superintendent, J. Bays, out of the presence of the jury, stated that: 1) he.was custodian of telegraphic report No. 682928, and the final report of accident; 2) the reports were records of an act, condition, or event, made near the time of happening; 3) the reports were made in the regular course of business, based upon an investigation conducted under his authority, by assistant terminal superintendent Brockman and dated July 7, 1969, and July 9, 1969.

Southern Pacific urges that the trial court failed to make a finding as to the “trustworthiness” of sources of information for these reports, as required by Evidence Code section 1271, set forth below. The record, however, indicates that the trial court heard arguments and objections, took the matter under submission, researched the issue, and made a determination which included an evaluation of the reliability of the sources of information for the report. Explicit findings on this point are not necessary:

“Evidence Code § 1271(d) requires, as a condition for admissibility of a writing under the business records hearsay exception, that the judge find that (1) the sources of information and (2) the method and time of preparation of the writing ‘were such as to indicate its trustworthiness.’ This does not mean that the judge must make an express finding on the court record. A ruling admitting a writing in evidence under this hearsay exception is deemed an implied finding by the trial judge that these two requirements are present to indicate trustworthiness of the writing. See Evid. C § 402(c).” (Jefferson, Cal. Evidence Benchbook § 4.5, Com., p. 87.)

The business record exception grants the trial judge wide discretion in determining whether a proper foundation has been laid to admit the reports (Cole v. Ames, 155 Cal.App.2d 8, 18 [317 P.2d 662]; People v. Torres, 201 Cal.App.2d 290, 295 [20 Cal.Rptr. 315]). Every authority relied upon by Southern Pacific pertained to proffered business records excluded by the trial court and upheld on appeal. In Dahl-Beck Electric Co. v. Rogge, 275 Cal.App.2d 893 [80 Cal.Rptr. 440], for example, the Court of Appeal sustained the trial judge’s rejection of a self-serving accident report prepared and offered by the plaintiff where the trial judge had discounted its trustworthiness and plaintiff/appellant provided neither argument nor authorities on appeal.

In any event, the revision of the business record exception made by the Evidence Code strongly supports a more liberal application and broader trial court discretion as to the business records exception. In People v. Williams, 36 Cal.App.3d 262, at pages 274 and 275 [111 Cal.Rptr. 378], the Court of Appeal rejected arguments for restricting trial court discretion. Appellant, convicted of diverting gasoline stocks in an embezzling scheme, objected to admitting a service station’s “monthly profit guidebook,” containing a record of gasoline inventory prepared from notes and forms written by unidentified employees. Admission of this report was upheld on appeal as follows, at page 275: “The object of the statute is, of course, to eliminate the necessity of calling each witness. The foundation for admitting the record is properly laid if in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. This places a broad discretion in the trial court which will not be disturbed on appeal. [Citation.] The reasonable inference was that the stick readings were prepared by Blackburn’s employees in the normal and usual method. This method was sufficiently trustworthy to be relied upon by Blackburn in the ordinary course of his business. Blackburn verified the most recent reading by sticking the tank himself. The records were admissible. [Citation.]”

In the instant case, likewise, the court properly concluded that the method and mode of preparation were sufficiently trustworthy to permit both reports to be admitted. Both were prepared by assistant terminal superintendent Brockman, a division officer of Southern Pacific, in the course of his official responsibility to investigate and determine the causes of industrial accidents. Both reports were sufficiently “trustworthy” for Superintendent Bays to approve without criticism and for delivery to several Southern Pacific departments.

Damage estimates were obtained from the office of division superintendent Jones’ office and admitted without issue. However, those portions of both reports pertaining to the cause of the fire require more extensive discussion. The uncontroverted evidence indicates that all of the witnesses to the fire who arrived before the fire department were employees of Southern Pacific, e.g., Honsinger, Barlesi, McDonnell and perhaps members of the switching yard crews. Thus, Brockman’s report was based upon reports of company employees who were charged by Southern Pacific rules and regulations to report to their superiors. In addition, Klehs, who was acting chief of fire prevention, investigated the fire shortly after it occurred. Thus, it is also reasonable to conclude that Brockman’s report was based upon Klehs’ investigation.

“[T]he requirement of a business duty to transmit the information seems a reasonable means of assuring reliability, and it seems likely that most courts would read the Commonwealth Fund Act or the Uniform Act as requiring that the entry be based upon information transmitted to the recorder by one with firsthand knowledge and a business duty to know and report the information” (McCormick, Evidence (2d ed. 1972) §310, p. 726).

McCormick, supra (p. 727, fn. 64), cites Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114 [52 Cal.Rptr. 561, 416 P.2d 793], in which our Supreme Court overruled a trial court’s exclusion of a police report on the grounds that although the officer was only a custodian of reports filed by other police officers, he could introduce the report into evidence if it was based upon information obtained from other police officers and public officials whose job it is to know the facts recorded.

The admission of those portions of both reports pertaining to the cause of the fire is also supported by an alternative test of reliability, namely, a party will not admit things damaging to its own position unless believed true. The authorities cited by Southern Pacific on this issue generally lack this guarantee of accuracy, and also did not involve “admissions by a party against interest.” (Behr v. County of Santa Cruz, 172 CaI.App.2d 697 [342 P.2d 987] (State Division of Forestry report); Harrigan v. Chaperon, 118 Cal.App.2d 167 [257 P.2d 716] (city fire inspector’s report); Johnson v. Aetna Life Insurance Co., 221 Cal.App.2d 247 [34 Cal.Rptr. 484] (hospital record). All involved reports by third parties. Dahl-Beck, supra, involved a report prepared by the party who offered it into evidence. We conclude that an ample foundation for classifying the reports in the instant case as authorized or adoptive admissions pursuant to Evidence Code sections 1221 and 1222, may be found in Bays’ testimony on the preparation and function of both reports.

Southern Pacific, however, claims the cryptic response to the question of cause of the fire (“apparently started by transients”; italics added) cannot be an admission since it is an opinion. We do not find this argument persuasive. The phrase is subject to alternative interpretations. Brockman may be transmitting a conclusion that was within the personal knowledge of those he interviewed, whether Southern Pacific employees or not, but qualified the conclusion with the word “apparently” because it was not within his own personal knowledge. The usual requirement of personal knowledge is dispensed with in the case of admissions (Witkin, Cal. Evidence (2d ed.) § 499; McCormick, Evidence, § 263, and cases cited therein)-.

Further, even assuming that “apparently” denotes that the response was only Brockman’s opinion, under current law, no reason exists for its exclusion. The rules pertaining to the necessary foundation for conclusions are not applicable to out-of-court admissions against interest. As stated in McCormick, supra, at page 632: “As we have seen, that rule has as its object the regulation of the interrogation of a witness on the stand, so as to elicit his answers in the more concrete form rather than in terms of inference. In its modem form it is a rule of preference for the more concrete answers, if the witness can give them, rather than a mle of exclusion. In any view, this mle, designed to promote the concreteness of answers on the stand, is grotesquely misapplied to out-of-court statements, such as admissions, where the declarant’s statements are made without thought of the form of courtroom testimony and where it can only be applied by excluding the statement, whereas in the courtroom if the opinion objection is sustained, counsel may reframe his question in the preferred form.”

We note that one of the cases cited by the trial court as authority for admission of both reports, Dillenbeck v. City of Los Angeles, 69 Cal.2d 472 [72 Cal.Rptr. 321, 446 P.2d 129], upheld the admission of Los Angeles Police Department safety mies as implied admissions despite their characterization as “opinions.” The Supreme Court held that it would take judicial notice of the Los Angeles Police Department qualifications to give expert testimony on what constitutes due care.

Breidert v. Southern Pac. Co., 272 Cal.App.2d 398 [77 Cal.Rptr. 262], cited by Southern Pacific, bears no factual resemblance to the instant case, and its reasoning has been criticized by several writers.

We also note that Southern Pacific does not demonstrate how the alleged error in the admission of the reports was prejudicial in the face of the above detailed evidence concerning itinerant activity in the Mission Bay Yard and the February 1969 fire which destroyed the twin of the warehouse. Furthermore, Southern Pacific made no effort to disclose to the jury the basis and origin of either report, despite the trial court’s repeated admonitions to counsel that he expected the jury would be given evidence in order to weigh the probative value of the reports. Apparently, Southern Pacific recognized at that time that the evidence was merely cumulative and, therefore, even if the admission were improper, it could not be prejudicial {Nesbitt Fruit Products, Inc. v. Del Monte Beverage Co., 177 Cal.App.2d 353, 364 [2 Cal.Rptr. 333]). Southern Pacific could have called Brockman to testify as to his sources, but chose not to. It should have no complaint now, when no effort was made to qualify or ameliorate whatever impact it may have had at the trial.

Southern Pacific also complains of the tenants’ and owners’ use of discovery between it and the codefendant Reikes, which indicated that after the February 1969 fire, Reikes’ employee Olds brought the presence of empty wine and liquor bottles to the attention of Southern Pacific and the fire department. Southern Pacific denied receiving any complaint from Olds. The pertinent portion of the record, quoted in detail below, indicates that Reikes’ response to the request for admission of fact was not construed as an admission on the part of Southern Pacific but was ruled evidence as to a//parties.

Unlike Shoei Kako Co. v. Superior Court, 33 Cal.App.3d 808 [109 Cal.Rptr. 402], Petersen v. City of Vallejo, 259 Cal.App.2d 757 [66 Cal.Rptr. 776], and Associates Discount Corp. v. Tobb Co., 241 Cal.App.2d 541 [50 Cal.Rptr. 738], cited by Southern Pacific, where the issue was whether party A could introduce the responses furnished by party B in answer to interrogatories propounded by party A for use in evidence against a “bystander” party C, the instant case concerns C’s introduction of the fruits of discovery conducted between A and B, to be used in evidence against A. This difference in configuration is important, in light of the underlying rationale for the principle discussed in Southern Pacific’s argument: “It would be unreasonable and absurd to permit questions and answers respectively propounded and received in an interrogatory proceeding between two parties to be used against a third party when the latter is not given the right to propound cross-interrogatories or to exercise the privilege conferred upon the party initiating the proceeding by [Code Civ. Proc.] section 2030 to require the adverse party to whom the interrogatories are directed to make a further response” (italics added). (Associates Discount Corp. v. Tobb Co., supra, at pp. 551-552; Castaline v. City of Los Angeles, 47 Cal.App.3d 580, 589 [121 Cal.Rptr. 786].) Thus, the rationale is not, as Southern Pacific implies, an anomalous requirement of privacy or privity, but rather a concern over a collusive and conclusive use of discovery products against an unaware third party. Southern Pacific propounded the interrogatories, phrased the questions, and was entitled, pursuant to Code of Civil Procedure section 2030 to submit further interrogatories, recross interrogatories, or to demand further response.

Furthermore, Southern Pacific’s relationship with the codefendant Reikes as “non-adverse” is neither relevant nor entirely correct. The 1971 amendment to Code of Civil Procedure section 2030 (Stats. 1971, ch. 1643, § 1) authorizes the service of interrogatories on “any other party” rather than only on “any adverse party.” The use of those interrogatories at trial is governed by Code of Civil Procedure section 2016, subdivision (d), which sets down no special rules for admission of discovery conducted between nonadverse parties. In addition, for purposes of discovery proceedings, “adversity” is a question of issues, not interests. In Gorman Rupp Industries, Inc: v. Superior Court, 20 CaI.App.3d 28, 31 [97 Cal.Rptr. 377], the court cited as persuasive the following reasoning of the federal district court in Carey v. Schuldt, 42 F.R.D. 390: “ ‘The judicial definition of “adverse” parties is those parties who are on opposite sides of an issue raised by the pleadings or otherwise presented by the record. [Citations.] This serves well as a general principle. But it requires explanation, which has not been forthcoming, for proper application to specific situations. In determining “adversity,” the focus is on issues, and not interests. Conflicting interests, without more, do not constitute “adversity.” To be “adverse” the parties must oppose each other on an issue in the case. “Adversity” does not mean that one party must be seeking a judgment or recovery against the other party; but it does mean that one party strives to win a point at issue at the expense of the other. When two parties are contesting an issue, and the outcome of the litigation will be, or may be, different as to either party due to the determination of that issue, then they, are “adverse” within the meaning of Rule 33.’ ” (Italics partially added.)

Thus, the very elements absent in the authorities relied upon by Southern Pacific, notice of responses and opportunity and incentive to further examine the responding party, are clearly present here.

The purpose of discovery and the legislative policy of broadening its scope and application further supports the decision of the court below. In response to the court’s reluctance to. admit interrogatories in Associates Discount, above, where it construed then Code of Civil Procedure section 2030 (“ ‘Solely for their information, copies of all interrogatories arid of all answers thereto shall be served upon all other parties ...’ ” (p. 551) to limit admissibility against third parties, the state Legislature amended Code of Civil Procedure section 2030 to delete the words “Solely for their information” (Stats. 1974, ch. 732, § 1).

Finally, as another court concluded in similar circumstances, “it appears that the interrogatory issue is really much ado about nothing” (Castaline, p. 590). In any event, whatever error may have been made in admitting the Reikes interrogatory and response was certainly harmless as there was nothing that hád not been introduced into evidence; earlier when the Olds deposition was properly read. This deposition further elaborated on itinerant activity, including instances of break-ins on Reikes’ premises, and the circumstances of a conversation with Bushner of the Southern Pacific real estate department, in which itinerants were discussed; Southern Pacific’s counsel recognized the redundancy at the time of his initial objection.

Finally, Southern Pacific asserts that the trial court erred in excluding evidence relating to the risk assumed by the tenants of the low-rent warehouse. As sufficiently indicated above, the general issue here was whether Southern Pacific had acted with reasonable care as to the tenants and owners. The standard of “reasonable care” as well as the resolution of the issues were properly reserved for the determination of the jury and will not be disturbed unless unsupported by substantial evidence.

The evidence excluded pertained to the nominal rent paid by the tenants, the awareness of the tenants and owners of the condition of the warehouse and its surroundings, and their failure to complain to Southern Pacific or to request changes. The record, however, reveals that evidence on each of these particulars was introduced. The low rent was noted by Southern Pacific’s engineer, Rear, and brought up in Southern Pacific’s opening statement. The tenants’ “awareness” of existing conditions was held to be a proper line of inquiry and pursued by Southern Pacific in examining tenants Seib and DiLeo. Southern Pacific personnel from at least three divisions were allowed to testify to the lack of tenant complaints, including absence of complaint by a former tenant LevyZentner which had moved from the warehouse 10 years earlier.

The record discloses that only two lines of inquiry were closed to Southern Pacific. Because of a mistrial declared on May 13, 1974, due to Southern Pacific’s improper remarks on the tenants’ and owners’ property insurance, the court was sensitive to the economic allocation of risk argument insofar as it alluded to insurance. The court asked Southern Pacific’s counsel not to broach the subject with any witnesses without seeking a prior ruling. The second disallowed matter was whether the tenants had requested fire protection improvements while negotiating the terms of their leases with Southern Pacific. The trial court properly ruled that the leases obviously constituted the final embodiment and integration of the agreements and that evidence of prior negotiations contradicting the “as is” clause clearly violated the parol evidence rule (Civ. Code, § 1625). The trial court further noted, pursuant to the rule of Masterson v. Sine, 68 Cal.2d 222 [65 Cal.Rptr. 545, 436 P.2d 561], that evidence of the failure to request improvements which were not warranted by the terms of the lease as agreed to would mislead the jury by insinuating that the tenants had responsibility over conditions they could not change.

The record indicates that Southern Pacific did not plead an assumption of risk defense and its subsequent motion to amend to add this defense was denied. Nevertheless, Southern Pacific argues that the tenants accepted the hazardous condition of the warehouse in return for the low rent. As indicated above, the low rent, the relationship of the parties, the terms of the leases, and the tenants’ recognition of certain of the conditions of the warehouse were considéred by the jury. The evidence also indicated that: 1) itinerant activity usually occurred at the times when the warehouse was deserted; 2) tenants rarely had occasion to inspect the area behind the building; 3) the tenants had received assurances that Southern Pacific patrols would handle the itinerant problem; 4) the expert testimony indicated that to be effective, most of the fire protection improvements, such as alarm systems, detector systems and sprinkler systems, required general installation by the landlord, Southern Pacific, rather than by the individual tenants; 5) responsibility for security patrols and adequate fire hydrants rested with Southern Pacific, as did the responsibility for an organization that adequately inspected buildings, evaluated risks, and promptly responded to fires. As noted in footnote 22, above, the economic “assumption of risk” theory has no relevance or application to those owners who suffered losses without being in a position to negotiate the conditions of the warehouse, e.g., adjacent and nearby property owners, and the owners of goods stored with warehouse tenants in the adjacent properties or across the street from the warehouse.

Southern Pacific, without citation of authority, argues for an exception to the general rules of liability of Rowland v. Christian, 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], set forth as follows, at page 119: “The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. . . .” (Also in accord, Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796 [111 Cal.Rptr. 122], which applied Rowland v. Christian in a landlord/tenant context.)

Southern Pacific’s economic assumption of risk argument is without support in law or policy. Southern Pacific notes that expert Berg testified as to what a reasonable landlord “could' have” done, but claims prejudice in the exclusion of its hybrid theory of “economic factors.” In fact, Southern Pacific failed to ask the only question relevant to the jury’s evaluation of Berg’s testimony, namely, the actual cost of the improvements.

We conclude that since there is no merit to any of Southern Pacific’s contentions, the judgments on the verdicts against Southern Pacific must be affirmed.

II The Tenants’ and Owners’ Appeal

As indicated above, these appeals are from the order signed March 28, 1975, after the matter was heard by the court on January 20, 1975, pursuant to the stipulation of the parties.

The main questions are whether the trial court properly ruled as a matter of law that: 1) prejudgment interest pursuant to Civil Code section 3287, subdivision (a), is not available in tort actions, such as the instant ones, for damages for the loss of real and personal property; and 2) the evidence established that the damages of the tenants and owners could not be made certain.

Southern Pacific first argues that the trial court’s ruling that the statute does not apply to actions in tort is supported by King v. Southern Pacific Co., 109 Cal. 96 [41 P. 786]. King involved a fire negligently caused by the employees of the railroad; the fire then spread to the warehouse in which King’s principal (Stephens) had stored his goods. The major question on appeal was whether the trial court erred in instructing the juiy to add prejudgment interest from the date of the fire. In King, our Supreme Court concluded (at p. 99): “In a case of this character the question of interest must be left to the discretion of the juiy.” Civil Code section 3287, subdivision (a), was not mentioned in King, nor was there any question as to whether damages were certain. Thus, despite the appealing factual similarity of King to the facts of the instant case, we do not find it persuasive or pertinent here where the juiy awarded the damages to the tenants. Besides the patent ambiguity of the Supreme Court’s above quoted statement in King, the case was decided in 1895, and relied on the companion case of Stephens v. Southern Pacific, 109 Cal. 86 [41 P. 783], which held that the court erred in arbitrarily requiring the jury to add interest from the date of the fire as the award of interest was in the discretion of the jury pursuant to Civil Code section 3288. More importantly, the subsequent decisions of the courts of this state have failed to cite or rely on King for the interpretation proposed by Southern Pacific here.

Preliminarily, we find appropriate and helpful a brief description of the development of the common law rules predating Civil Code section 3287. We are indebted for this summary to the insightful comment in 5 UCLA L. Rev. 262, at pages 264-265: “In this country interest was allowed as damages at an early date in the case of ‘liquidated’ claims, but was denied when the amount due the plaintiff was considered ‘unliquidated.’ This classic distinction was applied both in cases based on contract and also in those based on tort when money had been wrongfully detained by another. As an alternative to this test, some early cases indicated that interest was to be given in contract cases and denied or made discretionary in cases of tort. Thus, by the middle of the 19th century, several variations on the interest damages theme were extant, but the prevailing view had apparently progressed beyond the limits of allowing interest on only strictly liquidated claims. If the amount of the plaintiff’s claim, even though not liquidated, could be determined by reference to well established market values or by computation, he was given interest as a matter of law. And even when the damages were not of this type, interest was often allowed in the discretion of the jury. The rules which pronounced this prevailing position of the time were codified in the final draft of the New York Civil Code completed in 1865, and they were made a part of California law as sections 3287 and 32881) of the California Civil Code when that work was adopted in 1872.”[](Italics supplied.)

Thus, when sections 3287 and 3288 were adopted in 1872, the key distinguishing factor was not, as Southern Pacific here argues, whether the cause of action arose in tort or contract, but rather whether the damages were readily ascertainable. Such a conclusion is given impetus by the carefully drafted language of the two sections, quoted above.

Section 3287, quoted at footnote 25, page 795 above, specifically refers to damages “certain, or capable of being made certain by calculation” (italics supplied). Section 3288, on the other hand, makes no reference to a requirement of certainty.

Further, the language of section 3288 is expressly limited to certain types of actions. Section 3287, subdivision (a), applies by its terms without restriction to “Every person who is entitled to recover damages” (italics supplied). Subdivision (b) of section 3287 is expressly limited to “Every person who is entitled... to receive damages based upon a cause of action in contract. . . .” (italics supplied). Sections 3287 and 3288 were adopted from the same draft based on the Field’s Draft and at the same time. Accordingly, under the usual rules of statutory interpretation, we can reasonably assume that if the Legislature had intended to limit section 3287, subdivision (a) to certain actions only, it would have specifically so stated, as it did in section 3288 and more recently enacted subdivision (b), which is limited to causes of action in contract.

Our research also discloses that section 3287, subdivision (a), has been applied consistently to allow the recovery of prejudgment interest in causes of action other than those in contract. For example, in Mass v. Board of Education, 61 Cal.2d 612 [39 Cal.Rptr. 739, 394 P.2d 579], our Supreme Court held that prejudgm