74 Cal. App. 2d 946 | Cal. Ct. App. | 1946
The question, for decision is whether the former occupant of a building which was destroyed by fire caused by the flames of an unlawful burning of rubbish on an adjacent vacant lot is barred from recovery by reason of the fact that on one or more occasions prior to the date of the fire he had cast his own waste matter into a bonfire which had been made by the occupants of such lot.
From a judgment in favor of defendants denying recovery to plaintiff on account of losses sufféred by the burning of his personal property located in a building which was destroyed by fire whose origin was on the lot adjacent to such building Friedman appeals. His coplaintiff, Eos Angeles Canvas and Supply Company, owner of the building in question, recovered the value of its losses, which judgment was presumptively settled.
Appellant conducted, his manufacturing business and kept machines and other personal property of the value of $5,052.77 stored in the rear portion of the building of the Los Angeles Canvas and Supply Company at 1013 North Mission Road in the city of Los Angeles, herein referred to as the corporation’s building. Adjacent and contiguous to the building was a vacant lot used by respondent Pacific Outdoor Advertising Company, hereinafter referred to as respondent, for the purpose of dumping and maintaining thereon waste paper, shrubbery cuttings and other combustible waste material collected from its various properties in the city. The defendant Evans was an independent contractor engaged for the purpose of tending and keeping clean the various properties of respondent throughout the city of Los Angeles used by it for advertising purposes, and made such collections and deposits.
On June 27,1943, while such rubbish and waste material lay in a pile upon the vacant lot, defendant Evans with the consent of respondent set fire thereto and thereafter left the fire before it had been extinguished and without leaving a competent person in charge, and negligently permitted the fire to spread to the dry grasses and other inflammable materials upon the lot and to ignite the corporation’s building, resulting in the destruction of its contents including the personal property of appellant. Such illegal act of defendants directly caused the destruction of appellant’s movables, the value of which was found to be $5,052.77.
In addition to the foregoing facts the court also determined that the damage suffered by appellant was concurrently caused and contributed to by his own negligence; that the conduct of Evans in the burning of the rubbish was open and obvious to appellant; that the latter had knowledge prior to June 27, 1943, of the uses to which defendants put the vacant lot in storing and maintaining combustible materials.
From the facts so found the court concluded that appellant was not entitled to recover the value of his destroyed property and that he should take nothing by his action.
The evidence as to whether appellant was contributorily negligent in causing the burning of his movables is as follows;
No Contributory Negligence
From such evidence respondent contends that appellant was precluded from recovery under the doctrines of (a) contributory negligence, and (b) volenti non fit injuria. In order to establish appellant’s liability under either of these doctrines it was essential that defendants prove that appellant consented to the performance of the acts which occasioned his loss (Broom’s Legal Maxims, p. 265; Civ. Code, § 3515) ; or, if a nuisance was established by proof of the negligent acts of defendants, it must be shown that appellant had done some act wilfully or negligently which actually and proximately contributed to cause the destruction of his property (Bosqui v. Sutro Railroad Co., 131 Cal. 390, 397 [63 P. 682]), and not merely that he omitted to assume that
Appellant kept no dump of his own scrap or wastage on the lot. While he had on the days mentioned participated in burning the rubbish by casting his own paper into the flames, yet so far as the bonfire on June 27 is concerned appellant neither expressed his consent nor did any act, wilful or negligent, that could be construed as having contributed to the building of the bonfire or the destruction of his property. In fact the court found that appellant did not on that day throw upon or leave on the vacant lot any material or consent to the. fire’s being left unguarded. Nothing done by appellant in the entire course of Evans’ burning of the wastage could have had a causal connection with the fire. The rubbish which appellant had burned on each of the former occasions was ashes only on June 27.
Such former burnings by appellant were too remote from the events of June 27 to be considered contributory causes of the fire. He had no notice of Evans’ intention to burn rubbish on that day or of the manner of igniting it or of his plan to leave it unguarded. In order for the violation of an ordinance to constitute contributory negligence it must contribute directly and proximately to the injury alleged. (Hurtel v. Albert Cohn, Inc., 5 Cal.2d 145, 147 [52 P.2d 922] ; Muir v.
Volenti Non Fit Injuria
All that is said above as to the failure of appellant’s act to be a contributing cause of the burning of his property applies with equal force in appraising the finding that appellant had knowledge of defendants’ maintenance of a nuisance on the vacant lot prior to June 27, 1943. Storing combustible litter on a vacant lot was a violation qf the municipal code to which appellant could not consent. One cannot delegate to another an act which he is by law forbidden himself to do. (Snow v. Marian Realty Co., 212 Cal. 622 [299 P. 720]; Brown v. George Pepperdine Foundation, 23 Cal.2d 256 [143 P.2d 929].) Appellant owed no duty either to the public or to respondent to remove the rubbish stored on the latter’s premises or to prevent defendants from burning it. Appellant did not assume any risk in defendants’ use of the vacant lot to burn their rubbish even though the maintenance of the nuisance endangered his property. (Judson v. Giant Powder Co., 107 Cal. 549 [40 P. 1020, 48 Am.St.Rep. 146, 20 L.R.A. 718].) In occupying the building adjacent to the vacant lot appellant assumed only such perils as were naturally incident to his position and not those which might result from the negligence of defendants. (19 Cal.Jur. 589; Weaver v. Shell Co. of Cal., 34 Cal.App.2d 713 [94P.2d 364].)
The doctrine of volenti non fit injuria is not applicable where the injury arises from a violation of an ordinance. Neither does it apply to the maintenance of a nuisance unless the aggrieved party contributed to such maintenance. Even though a person may waive the benefit of a law enacted for his
It follows that appellant cannot be denied recovery by reason of his two acts occurring some weeks prior to June 27 when he cast some wastage into defendants’ fire. When he did so the fire was so guarded as to prevent its spread. Such acts did not modify the practice of defendants and therefore could not have proximately contributed to the destruction of appellant’s property. They were too remote to be a proximately contributing cause. (Elm v. Bennett, 99 Cal.App. 573, 575 [278 P. 906].)
McComb, J., and Wilson, J., concurred.
Respondents’ petition for a hearing by the Supreme Court was denied August 15, 1946.
No satisfaction of the judgment appears in the record and there is no mention of any disposition thereof in the briefs.
Inasmuch as the only brief filed on behalf of the defense appears to be on behalf of the defendant company it is assumed that defendant Evans chose not to follow the appeal.