Hanson v. City of Los Angeles

McCOMB, J.

From a judgment in the sum of $2,500 after trial before a jury in an action to recover damages for the negligent acts of defendant in burning weeds on lots adjacent to plaintiff’s property, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are:

On June 9, 1941, defendant, through its duly authorized agents, while burning weeds for the purpose of abating a nuisance on a lot adjacent to a piece of real property owned by plaintiff, negligently permitted the fire to spread and destroy plaintiff’s property.

This is the sole question necessary for us to determine:

Did the trial court commit prejudicial error in instructing the jury as follows:

“It is true that a municipal corporation, when exercising governmental functions as such, is not liable for damages caused by a

negligentB

act of its employees unless it is expressly made so by statute.

“It is also true that a municipal corporation, when acting within its proprietary capacity, is liable for damages caused by negligent acts of its employees.

“It is the law that the corporation’s liability for tort or negligence of its employees depends upon the nature of the work being done and the instrumentalities connected with the performance, its method and manner, at the time the act is alleged to have been committed. If the agents were acting in a governmental capacity, no liability attaches to the corporation, under the elementary rule that the state or municipality and its various subdivisions is not liable for

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torts of its agents while acting within a governmental capacity. On the other hand, if the agents of the corporation at the time are acting in a proprietary capacity, the city or municipal corporation is liable therefor.

“It is for you to determine from all the facts in evidence herein as to whether or not said city was acting within its governmental capacity or its proprietary capacity.”