24 P.2d 892 | Cal. Ct. App. | 1933
Certain property of the respondents having been destroyed by fire communicated to their premises from that of the appellant, an action for damages based upon alleged negligence and the violation of a county ordinance by the latter was commenced. Judgment having been rendered in favor of the plaintiffs, the defendant appealed from the same, and from an order denying his motion for a new trial.
Following the reception of evidence the trial court rendered findings and a judgment in treble the amount of damages found to have been sustained by the plaintiffs from a conflagration which had destroyed their premises after crossing the party line from an adjoining lot of the defendant. The sufficiency of the complaint to state more than a common-law cause of action and of the evidence to support said *666 judgment are challenged upon appeal. By four separate causes of action the plaintiffs alleged (1) that the defendant intentionally kindled a fire on his own land and so negligently watched and attended the same that it extended upon that of the plaintiffs and wholly consumed their dwelling and its contents; (2) that the defendant intentionally kindled a fire on his own land, that he had charge thereof, and that he negligently and without proper precaution allowed the same to escape from his control and to spread, as a result of which it came upon the plaintiffs' premises and destroyed said dwelling and personal property; (3) that the defendant lighted a fire and used the same to burn brush and grass upon land within 500 feet of brush and grass-covered land containing inflammable material, without first having obtained a permit from the state or county fire warden; and less than 40 feet therefrom, in violation of a certain ordinance of the county, by reason of which the same came upon the plaintiffs' premises and destroyed valuable property; (4) that the defendant allowed a fire built out of doors to spread into and upon the plaintiffs' real property and to consume and destroy said dwelling and contents, contrary to the provisions of an ordinance of said county. In each such instance the ordinance relied upon was alleged only by title and date of enactment. In brief, the first cause of action alleged the setting of a fire, the second allowing the same to escape, and the third and fourth alleged violations of municipal ordinances. As to the first two it was provided by statute: "DAMAGES FOR FIRING WOODS. Every person negligently setting fire to his own woods or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured." (Civ. Code, sec. 3346a; Pol. Code, sec. 3344.)
The appellant strenuously denied any knowledge as to the origin of the brush fire, and there was no direct testimony of any eye-witness as to its origin or cause. It is contended that the complaint did not state a cause of action with the intent of the statute as it then existed, and that the evidence was not sufficient to establish a charge that the appellant intentionally or negligently caused or permitted the same to be communicated to the lands of the respondents, nor that he "suffered any fire to extend beyond his own land". [1] One of the meanings of the term "suffer to *667
occur" is to allow, to admit, or to permit. (Gregory v.Marks, 10 Fed. Cas. 1194 [No. 5802]; Adams v. Nichols, 1 Aikens (Vt.), 316; City of Ft. Wayne v. DeWitt,
[5] The remaining counts or causes of action alleged the acts recited contrary to a certain ordinance entitled, "An Ordinance regulating the use of fire by any and all persons in the County of Los Angeles, State of California, passed July 1st, 1925, and as amended by an ordinance of said county of Los Angeles entitled, `An ordinance amending sections I, II and V of Ordinance No. 1315, New Series,' *669 passed March 30, 1927," etc. In pleading a municipal ordinance or a right derived therefrom, it is sufficient to refer to such ordinance by its title and by the day of its passage. (Code Civ. Proc., sec. 459.) It must be said of the appellant's contention in this respect that the complaint was sufficiently complete. However, it may not be assumed that the trial court was otherwise in doubt as to the provisions of the ordinances mentioned and so pleaded, since they were introduced in evidence as a whole.
Prejudicial error not appearing, the judgment is affirmed.[6] The appeal from the order denying a new trial is dismissed, for the reason that such right in section 693 of the Code of Civil Procedure was repealed in 1915.
Works, P.J., and Archbald, J., pro tem., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 9, 1933.
Seawell, J., dissented.