Humiston v. Hook

SHINN, Acting P. J.

Defendant Elmer G. Hook appeals from a judgment for damages for the loss of plaintiffs’ property through fire allegedly caused by the negligence of defendant. Plaintiffs, copartners, doing business as M. E. Gray Company, maintain a place of business in Huntington Park, where they sell pipe, plumbing supplies and other materials. Defendant operates a machine shop next door. The building, 50 feet in width, was occupied in part by both parties, 40 feet of it by defendant and 10 feet by plaintiff, a partition separating the two portions of the room, and plaintiffs’ business extended onto other property. The complaint contained two causes of action. In addition to Hook, others were sued under fictitious names, but no one except Hook appeared in the action. In the first cause of action it was alleged that defendants so carelessly, negligently and unlawfully maintained and conducted their premises as to cause a fire to occur as a proximate result of their acts, which fire destroyed and damaged merchandise, fixtures and equipment of plaintiffs, to plaintiffs’ damage in the sum of $57,-199.43. There was an allegation that plaintiffs were out of

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business for some time and sustained a further loss of $20,000 by reason thereof. The second cause of action alleged that defendants permitted and maintained on their premises an open vat containing highly inflammable petroleum liquids, contrary to a city ordinance of Huntington Park, and that as a proximate result of defendants’ acts done in violation of the ordinance defendants caused said fire to occur. By reference to the paragraphs of the first cause of action the charge of negligence was incorporated into the second cause of action. Defendant answered, denying the negligence and violation of the ordinance, and alleging “that plaintiffs were at all times familiar with and in daily contact with the activities of this answering defendant in the operation of his business” etc. No contributory negligence of plaintiffs was pleaded. Plaintiffs proved that they had sustained the loss of merchandise, fixtures, equipment, etc. to the amount alleged in the complaint, but they offered no evidence as to loss of profits. The court found in favor of plaintiffs on the issues of negligence, proximate cause and damage for loss of the property, and also found that defendants were maintaining their property in violation of an ordinance of the city of Huntington Park, in that they permitted and maintained on the premises an open vat which contained highly inflammable petroleum liquids. It was also found that the fire was started in the open vat by sparks emanating from a grinding machine which was being used on metal. It was further found that there was no evidence that any of the plaintiffs knew that defendant was maintaining the open vat containing inflammable metals and using said grinding machine in the proximity thereof, although plaintiffs’ office manager had seen the machine and had seen defendant using said vat for the painting of metal prior to the date of the fire.