Covo v. Lobue

SHOEMAKER, Acting P. J.

Plaintiff John Peter Covo appeals from a judgment of dismissal entered upon the sustaining without leave to amend of a demurrer to his first amended complaint.

Plaintiff’s amended complaint purports to set forth two separate causes of action: Count I alleges that Shearer had leased from Berryessa 60 acres of pastureland in Santa Clara County, for raising some 60 head of cattle, and employed plaintiff to care for them; that defendants Lobue were the owners of real property contiguous to the property leased by Shearer; that on July 27, 1959, these defendants, without the authority, permission or consent of Berryessa or Shearer, directed and ordered their employee and servant, Santa Clara Sand and Gravel Company, to enter upon the Berryessa property for the purpose of constructing a road; that defendant company entered the Berryessa property, removed 300 feet of the barbed wire fence standing upon this land, and commenced constructing a road; that defendant company then proceeded to remove large quantities of earthen materials and to damage and destroy 30 or 40 oak trees; that the earth so removed and the branches, stumps and roots of the trees were dumped into a creek running through the Berryessa property; that on July 28, 1959, some of Shearer’s cattle began to wander across the creek toward the gap in the fence; that plaintiff, in his capacity as Shearer’s employee, was forced to go into the creek in an effort to drive the cattle

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away from the break in the fence; that in so doing, plaintiff became entangled among the earth and trees piled in the creek and was caused to fall, sustaining severe personal injuries. Count II differed from Count I only in that it was alleged that defendants Lobue

negligently

directed their employee to enter upon the Berryessa property, and said employee

negligently

removed portions of the fence. Plaintiff sought $25,000 as damages for the injuries which he had sustained.

Defendants Lobue demurred generally to the complaint.

Before turning to a detailed examination of appellant’s complaint, we call attention once again to the rule that a general demurrer should not be sustained if the pleading, liberally construed, states a cause of action on any theory.