108 P. 659 | Cal. Ct. App. | 1910
The appeal is from the judgment on the judgment-roll alone. The only question for determination concerns the ruling of the court below overruling a general demurrer to the amended complaint.
The action was brought to recover damages for the destruction of plaintiff's dwelling-house, and the gravamen of the charge is contained in the following allegations: "That on the said nineteenth day of July, 1898, defendant carelessly, negligently, deceitfully, secretively, improvidently, and unsafely maintained a powder magazine, which was improperly constructed, containing not less than five thousand pounds of powder, and situated upon the corner of Clark and A streets in Melrose. . . . Defendant, on said nineteenth day of July, 1898, had in its employ a careless, heedless, reckless, and dangerous servant, whose duty it was to handle, carry, and take charge of the powder in said magazine and to whom it gave free access to said magazine, at all times. Said servant was a Chinaman, called Ah Ung, and his carelessness, recklessness, heedlessness and unfitness were at all times well known to defendant. On the said nineteenth day of July, 1898, the said powder, stored in the said magazine, was exploded, as a result of defendant's aforesaid negligence, and by reason of the act of said servant in recklessly and heedlessly igniting said powder."
The foregoing is followed by an averment that the said explosion damaged plaintiff's said property to the extent of $1,400.
Under the authorities, it is sufficient to allege that an act was negligently done by defendant, and that it caused damage to plaintiff. The rule is stated in Stephenson v. Southern Pac.Co.,
Here, the particular act immediately causing the injury was the explosion of the gunpowder. This was the result of "the reckless and heedless" act of defendant's servant in igniting said powder. Both reckless and heedless imply "negligence or the want of care."
The only question, then, remaining arises from the fact that the negligent act is alleged to have been done by the "said servant" instead of by the defendant. The rule in such case is that the principal or master is civilly responsible for wrongs committed by his agent or servant while acting about the business of the principal or master and within the scope of the employment of the agent or servant. (Thompson on Negligence, sec. 518.) The same author, in section 520, declares the rule more specifically as follows: "A mere statement of the rule suggests that the principal or master will in all cases be liable for wrongs committed by his agent or servant, while acting about the business of the former, and within the scope of his employment, through inattention, negligence or want of skill. The cases already cited, and a great array of other adjudications, may be appealed to in support of this statement. It is perhaps the only branch of the doctrine upon which all the cases unite, and as to which *743 there is no dispute. It is a rule so plain and easy of application that it could scarcely be made clearer by illustration."
Among the many instances of the application of the rule cited by the author in section 521, we note only the following: "The defendant sent the servant to a factory to receive for her certain bags of paper shavings. It was arranged that the shavings should be thrown down through a hatchway beneath so as to prevent injury to passersby. He failed to so guard it, and a person passing by was struck by one of the falling bags and injured. It was held that the defendant was liable, since her servant was acting about the very matter which he was sent to perform, the receiving of the goods. . . . The plaintiff placed her horse in care of the defendant, a livery-stable keeper, to be boarded. The watchman of the defendant allowed three men, partially intoxicated, to go into the loft of the stable, which was full of dry hay, to sleep there during the night, knowing that they were smokers and that they were in the habit of carrying pipes and matches with them. An hour and a half later, the stable took fire and the plaintiff's horse was burned to death. It was held that the livery-stable keeper was responsible for the act of his watchman and that whether the watchman was negligent in allowing the three men to sleep in the loft was a question for the jury. . . . A person contracted to give a pyrotechnic display, and committed the performance of the contract to his agent. He thereby became answerable in damages to a person who was hurt through the negligence of the agent in discharging a fire bomb."
In the case at bar the business of the agent was "to handle, carry and take charge of the powder in said magazine." In other words, the care, custody and management of the powder were committed to the servant. This necessarily implies that it was a part of his duty to exercise care to prevent an explosion of said powder. If he therefore negligently permitted or caused said explosion, the case is presented of a clear and unmistakable violation of his duty as said servant. It thus appears by necessary implication that the servant was acting within the scope of his authority, and appellant is mistaken in its contention that an express allegation to that effect is required. *744
On this branch of the subject respondent cites the following cases: Birnbaum v. Lord, 7 Misc. Rep. 493, 28 N.Y. Supp. 17, was a suit to recover damages for negligence on the part of a driver of defendant's wagon, in running over a twelve year old boy who was crossing a street in New York City. It is therein said: "The complaint was sufficient in alleging that the wagon belonged to defendant and was driven by one of their agents or servants, although it does not otherwise allege that the latterwas engaged in the defendant's business; but that is involvedin the allegation that the wagon was driven by their agent orservant, for if the driver was not engaged upon his master'sbusiness, he would be neither agent nor servant, but his ownmaster." In Lewis v. Schultz, 98 Iowa, 341, [67 N.W. 266], the supreme court of Iowa said: "Appellant insists that the case was tried and submitted to the jury upon an issue not made in the pleadings or supported by the evidence, i. e., that the loss was the result of the act of a servant within the scope of his employment. The petition alleges that defendants, their servants and agents, set out the fire. Surely this raised an issue as to whether the person who set out the fire was an agent of the defendants, and also as to whether the act waswithin the scope of his employment."
In Louisville etc. Ry. Co. v. Kendall,
In Lewis v. Chicago etc. Ry. Co., 35 Fed. 639, a demurrer to the complaint was overruled by Justice David J. Brewer, wherein he said: "I also take it to be settled under the rules of pleading that what was equivalent to a common count under the old practice is good now as against an objection, raised by demurrer; and I think that is all that can be said about this pleading. It alleges that the defendant, by one of itsemployees, committed an assault and battery upon the plaintiff,another employee. That is the allegation in the pleading of asubstantive and ultimate fact. What the particular facts maybe, whether that assault and battery was committed in the lineof his employment and in the discharge of a duty which he owed the defendant, the master, as an employee, does not now appear."
The foregoing decisions commend themselves to our judgment, and they support the action of the court below in overruling the demurrer to the amended complaint.
There is, also, another aspect of the complaint which should not be overlooked. This is presented in the allegations that the magazine was imperfectly constructed and improvidently maintained, and that this negligence was a contributing cause of the injury. We find thus exhibited the familiar case of a nuisance, and upon this theory a cause of action is stated. The question is elaborately reviewed in Kinney v. Koopman,
Since by appropriate allegations it appears that the magazine as constructed and maintained constituted a nuisance, it is the contention of respondent that appellant was responsible for the damage caused the plaintiff without regard to the "precipitating cause of the explosion." In other words, the negligence of appellant sufficiently appears in the said *747
averments showing the maintenance of a nuisance, and since, in the absence of this want of proper care, the injury would not have resulted, a cause of action is stated, regardless of the further negligence in causing the explosion. This doctrine finds support in the authorities. The rule is stated inLaflin Rand Powder Co. v. Tearney,
Under either view, therefore, the amended complaint is not open to attack by general demurrer. The proximate cause of the damage appears to have been the negligence of defendant in the construction and maintenance of its magazine and the reckless act of the servant acting within the scope of his authority — these two conditions coexisting at the time of the explosion and both contributing to the injury done to plaintiff.
The cases cited by appellant involve different facts, as will be seen from the following reference to them: The trouble inSmith v. Buttner,
The vice of the complaint in Going v. Dinwiddie,
An instruction of the court and not a question of pleading, as we have already seen, was involved in the case ofKleebauer v. Western Fuse Explosives Co.,
Of the cases cited by appellant in support of its position that the pleading should allege that the act was done within the scope of the servant's employment and duties, in only one,Daniels v. Carney,
The judgment is affirmed.
Chipman, P. J., and Hart, J., concurred. *749