Martello v. Beletich

WORKS, J.

This is an appeal upon a judgment-roll alone. The action was one to recover for damages suffered by plaintiff through the burning of a house owned by defendants, they having rented to plaintiff a room in the dwelling and he having been an occupant of the room at the time of the fire. Plaintiff had judgment and the defendants appeal.

The sole point made by appellants is that the findings do not support the judgment. The complaint charged in

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part that appellants kept an automobile under the same roof which covered the dwelling and in a place which was a portion of the building, in defiance of the terms of a city ordinance denouncing the keeping of automobiles in such places. The answers of the appellants alleged affirmatively that respondent knew at all times during his occupancy of the room that appellants kept the automobile in the place mentioned. The trial court found this affirmative allegation to be true, and the contention of appellants is that this finding required a judgment in their favor. Respondent contends, however, that he was entitled to judgment because of other findings made by the trial court. These were to the effect that the house was burned by fire “by reason of the carelessness and negligence of the said defendants herein and each of them,” and that the fire was caused by the defendants “carelessly and negligently

and

in violation of law, keeping an automobile in a room of said dwelling,” the italics being ours. These two findings, it is to be observed, amount to a determination by the trial court on the facts that appellants were careless and negligent in the

manner

of the keeping of the automobile, entirely aside from the determination that they kept it in a certain place in violation of the terms of the city ordinance. The only difficulty in this situation is as to whether the two findings are upon issues made by the pleadings, but Ave have concluded that they are. This matter is not mentioned in the briefs, but we nevertheless feel it necessary to discuss it. The complaint alleges, in a separate paragraph, “That said dwelling being burned on said date, was caused by the defendants . . . carelessly and negligently keeping an automobile in a room in said dwelling.” It is to be observed that this paragraph standing alone is a sufficient allegation of general negligence, at least* in the absence of a special demurrer. It is, however, followed by a paragraph alleging the existence of the city ordinance to Avhieh we have already referred; a circumstance which