Bowles v. Hickson

JAMES, J.

This action was brought to recover damages alleged to have been sustained by plaintiffs through the negligent act of defendants. It is alleged in plaintiffs’ complaint that defendants negligently kindled a fire adjacent to the apiary of plaintiffs, and negligently permitted the fire to escape from the place where it had been kindled, with the result that it destroyed one hundred and thirty stands of bees belonging to plaintiffs, together with the equipment of the apiary. Plaintiffs sought not only to recover for their pecuniary loss, but also treble damages, as provided for in section 3344 of the Political Code. The trial judge, however, while he made his findings in favor of the plaintiffs, ordered judgment for the amount of six hundred and twenty-four dollars and fifty cents, that sum being found to be the actual value of the property destroyed. The defendants appealed from the judgment and from an order denying their motion for a new trial.

On this appeal the questions to be determined relate mainly to the question of sufficiency of the evidence to sustain the findings of the trial court. While there are a number of errors assigned as to rulings of the court made during the course of the trial, only one of those points is here argued, and the remainder are therefore not entitled to any consideration.

It appeared by the evidence that plaintiffs had leased a small tract of land for bee-keeping purposes from defendants some time prior to the date when their plant was destroyed by fire. Defendants owned the land surrounding that upon which the apiary was located, and a portion at least of defendants’ ground was devoted to orchard purposes. Not far from the apiary and to the south of it, oh the thirtieth day

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of September, 1910, stood a large pile of lemon brush, or trimmings from lemon trees, which had been taken from defendants’ orchard. This pile of brush was about fifteen feet wide, eighty feet long and four feet high, and the brush on that date was in a state of dryness which made it very inflammable. Defendant Hickson, at about 3 o’clock on the day mentioned, decided to burn up the brush and accordingly set fire to it. He remained about the fire watching it, and some time after he had kindled the blaze a fire started at a point some distance away and upon the ground where the apiary was located. This fire, in spite of efforts made to stop its progress, ate its way through dry brush and weeds and destroyed the bees and apiary equipment. Shortly after this Hickson remarked to some of the bystanders that he had done enough damage for one day and guessed he would go home. On the next day he met a brother of one of the plaintiffs and said to him, according to the latter’s testimony: “I was burning lemon brush over there and the fire got away from me and burned the bees upi” There was testimony given by some of the witnesses for plaintiffs to the effect that on the day in question a strong wind was blowing from a southerly direction the tendency of which would be" to blow sparks and firebrands from the brush pile toward the apiary. There was testimony also as to the customary method employed by the farmers when they sought to destroy brush at a time when on account of the extreme dryness there would be danger of the fire spreading, and by this testimony was furnished evidence of precautions to be taken, none of which was shown to have been adopted by Hickson. Also testimony tending to show that the value of the property destroyed was of the amount determined in the findings of the court. At the trial defendants contended, and it is here insisted, that on the day when Hickson caused the lemon brush to be burned away the wind was blowing from the north to the south and away from the property of plaintiffs, and that the physical conditions showed that there was an intervening strip untouched by fire and covered with dry and inflammable brush and grass, lying between the place where the brush was burned and the burned-over ground of the apiary. The contention of defendants further, was that plaintiff’s bees were not of the value fixed by the trial judge, or of any value, because they