DeMirjian v. Ideal Heating Corp.

McCOMB, J.

Plaintiffs instituted an action to recover damages resulting from a fire alleged to have been caused by defendant corporation, acting through its agent, defendant Lupella, in negligently causing a fire which damaged property of plaintiffs. A cross-complaint was filed and after trial before the court without a jury, the trial court found:

(a) “That it is true that on the 12th day of April, 1946, defendant Lupella was employed by defendant Ideal, and that while on the premises of said defendant Ideal at 807 E. Gage Avenue

in the course of his employment,

said Lupella negligently and carelessly caused certain spatter thinner, then being used by him for his own purposes and not for any purpose of defendant Ideal, to ignite and to set fire to said premises; that said Lupella was at said time using said spatter thinner to fill his cigarette lighter and was using it in a portion of the plant of Ideal in which smoking was prohibited by defendant, and that said Lupella while in said plant

in the course of his employment

was not required in the performance of his duties to enter into said portion of said plant, but was not forbidden to enter said portion of said plant, but was forbidden to smoke therein; that the acts of said Lupella in using said spatter thinner for his own purposes was without the knowledge or consent, express or implied, of defendant Ideal, and that said act of Lupella was not connected with the duties which said Lupella was then delegated to perform for defendant Ideal.”

(b) ' “That defendant Ideal did not itself, or through any person acting pursuant to its orders or directions, carelessly or negligently, or at all, cause the fire which resulted in plaintiffs’ loss, and was not itself a wrongdoer, ...”

(e) “. . . that it is true that defendant Anthony V. Lupella was on the 12th day of April, 1946, and at the time of the fire described in said second amended complaint, an employee of defendant Ideal Heating Corporation, hereinafter called Ideal, and was acting

within the course of his employment.”

(Italics added.)

Prom a judgment in favor of plaintiffs there is (1) an

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