Coole v. Haskins

SPENCE, J.

Plaintiffs, who were minors of the ages of two and three years respectively, sought to recover damages for personal injuries. Defendants’ demurrer to plaintiffs’ second amended complaint was sustained without leave to amend and a judgment of dismissal was entered. Plaintiffs appeal from said judgment.

The second amended complaint was in four counts. The first two counts were brought on behalf of one minor plaintiff and the second two counts were brought on behalf of the other minor plaintiff. One count as to each minor plaintiff

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was based upon alleged negligence of defendants and the other count as to each minor plaintiff was based upon the alleged maintenance of a nuisance by defendants. The counts based upon the alleged maintenance of a nuisance incorporated by reference all the allegations of the counts based upon alleged negligence and included the added allegations that, by reason of the facts alleged, defendants were maintaining a nuisance and that the injuries sustained by plaintiffs were proximately caused thereby.

The facts alleged are rather unusual. Briefly stated, plaintiffs alleged that while sleeping in a portion of the premises owned by defendants and rented to their parents as a residence, plaintiffs were bitten by rats and were seriously injured as a result of the negligence of, and the maintenance of a nuisance by, defendants on the premises owned by them, a portion of which premises was devoted to the operation of a restaurant by defendants. The alleged negligence and alleged maintenance of a nuisance consisted of “allowing discarded food and vegetable matter, refuse and debris to accumulate about said premises and buildings and restaurant” so that rats were attracted to and infested the same thereby causing the premises to become unfit for human habitation; and in allowing said condition to continue, despite requests to remedy it and with knowledge of the facts and of the propensity of rats to bite and of the danger and hazard to plaintiffs caused thereby, without endeavoring in any manner to exterminate said rats. In support of their alleged causes of action, plaintiffs relied in part upon section 1803 of the Health and Safety Code which reads as follows: “Every person possessing any place that is infested with rodents, as soon as their presence comes to his knowledge, shall at once proceed and continue in good faith to endeavor to exterminate and destroy the rodents, by poisoning, trapping, and other appropriate means.” It was alleged that the above-mentioned condition commenced in June, 1941, and was known to defendants at all times and that plaintiffs were bitten by the rats on October 15, 1941.