Roy v. Smith

THOMPSON, J.

The respondents moved to dismiss the appeal in this case on the ground that appellant’s brief does not conform to Rule VIII, section 3, of the Rules for the Supreme Court and District Courts of Appeal, by omitting to print therein the substance of the complaint upon which she relies as her statement of a cause of action, and because the appeal is frivolous, since the complaint recites facts making it physically impossible for the defendants to be charged with negligence resulting in the death of Fern Mildred Roy. The cause was dismissed as to the defendant Smith.

We think the appellant’s brief sufficiently conforms to the above rule, which merely requires the printing of

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“the nature of the action and the substance of the pleadings” relied upon. The brief recites in part: “The complaint alleges that the defendant so negligently supplied natural gas to said apartment, which was burned through the burners installed by defendant, that carbon dioxide gas was formed to such an extent that Mrs. Roy died. . . . The defendant gas company had the control of the gas in question, and also that it had installed the gas jets which were required in making the change from artificial gas to natural gas. (See pars. V and VI of the complaint.) ” It requires no speculation to understand the appellant has charged the defendant, Pacific Gas and Electric Company, with negligently causing the death of Fern Mildred Roy by the use of defective apparatus or the means by which it supplied her apartment with natural gas for the purpose of heating the rooms. The complaint is concise and free from ambiguity. The plaintiff relies on the doctrine of

res ipsa loquitur.

In addition to reciting the substance of the complaint upon which the appellant relies, the brief specifically refers to paragraphs V and VI of the complaint for further information. The brief appears to substantially comply with the requirement of the court rule above cited.

The respondent strenuously asserts that because the complaint admits that the flame from the floor gas heater continued to burn after the death of Mrs. Roy, it is physically impossible for her to have died from the effect of carbon dioxide because that noxious gas is heavier than normal air and would have settled to the floor and thereby extinguished the gas flame before she was suffocated. It is claimed the court will take judicial knowledge of this scientific fact, which destroys the appellant’s cause of action upon his admitted statement that the flame was found burning after the death of Mrs. Roy. Admitting the truth of the scientific fact for which the respondent contends, the result precluding the possibility of asphyxiation does not necessarily follow.