Reid & Sibell, Inc. v. Gilmore & Edwards Co.

• Decision Date: 24 June 1955
• Citation: 134 Cal.App.2d 60,285 P.2d 364
• Court: California Court of Appeals Court of Appeals
• Parties: REID & SIBELL, Inc., a California corporation, and United States Fire Insurance Company, a New York corporation, Plaintiffs and Respondents, v. GILMORE & EDWARDS COMPANY, Inc., a California corporation, Defendant and Appellant. Civ. 15102.

Page 364

285 P.2d 364

134 Cal.App.2d 60

REID & SIBELL, Inc., a California corporation, and United States Fire Insurance Company, a New York corporation, Plaintiffs and Respondents, v. GILMORE & EDWARDS COMPANY, Inc., a California corporation, Defendant and Appellant.

Civ. 15102.

District Court of Appeal, First District, Division 2, California.

June 24, 1955.

Rehearing Denied July 22, 1955.

Hearing Denied Aug. 17, 1955.

Edward J. Rice, Jr., Oakland, Dana, Bledsoe & Smith, San Francisco, for appellant.

McKinstry, Haber & Coombes, San Francisco, for respondent Reid & Sibell, Inc.

Lillick, Geary, Olson, Adams & Charles, San Francisco, for respondent United States Fire Ins. Co.

PER CURIAM.

This is an action for the value of property lost when a fire, not originated through any act or omission of the defendant, allegedly was caused by its negligence to spread to the premises occupied by a plaintiff.

There are two plaintiffs. Reid & Sibell, Inc. (hereinafter called Reid) was the owner of the goods destroyed. United States Fire Insurance Company (hereinafter called insurer) insured a portion of Reid's property against loss by fire, paid the value of the property covered, and sues as subrogee for the amount paid. Reid sues for losses not covered by its policy.

Defendant Gilmore & Edwards Company, Inc. (hereinafter called Gilmore) was a tenant of the basement and first floor of the building at 1414 Van Ness Avenue, San Francisco. Reid occupied the second floor of this two-story building. Originally, the owner of the building and another tenant of the first floor and basement were joined as defendants, but nonsuit was granted as to them because they did not store any of the paint thinner which assertedly caused the spread of the fire.

The complaint contains two causes of action for each plaintiff. One is based on general negligence in the storing of large quantities of paint thinner. The other counts upon a section of the Fire Code of the City and County of San Francisco which provides:

'Before any benzine, gasoline, or any product of petroleum or any hydrocarbon liquid that will flash or emit an inflammable vapor below a temperature of one hundred and ten (110) degrees Fahrenheit, shall be stored in, upon or about any premises in excess of five (5) gallons application for permit must be made to the Fire Marshal. Said permit will be granted by said officer, except where in the judgment of said officer, the use by the applicant in the manner proposed by him would endanger the safety of life and property.' The complaint alleges violation of this ordinance in that the stored paint thinner was a hydrocarbon liquid of a flash point below 110 degrees. Admittedly, Gilmore never applied for a permit.

Both counts allege that because of the presence of the paint thinner, the fire spread from the portion of the building occupied by Gilmore to that occupied by Reid, causing the losses of Reid and insurer.

Jury verdict was for both plaintiffs. Defendant Gilmore appeals from judgment upon that verdict.

Appellant contends that the evidence is insufficient to support the verdict. In this situation, our function is not to weigh the evidence, but only to determine 'whether or not there is any substantial evidence which will support' the verdict. In re Guardianship of Kentera, 41 Cal.2d 639, 645, 262 P.2d 317, 320.

The fire occurred Saturday, May 15, 1948. All the businesses occupying the building were closed that day. A janitor working on the first floor smelled smoke, found that it came from the basement, and notified the fire department. The first battalion chief to arrive (this became a fouralarm fire) found a 'very hot fire' on the basement floor. Because it appeared to be a volatile liquid burning, fog stream was used by the firemen.

The fire was brought under control and was nearly extinguished at least three times, but on each occasion was reignited by vapors of liquid on the floor. Each time the fire again ignited, 'just in split seconds the entire floor of the basement was a mass of flame.'

An employee of appellant told the fire chief that a number of drums of inflammable solvent or paint thinner were in the basement, and he warned the chief to wet it down. Firemen saw a number of 50-gallon drums ruptured and leaking liquid. Six to eight of the large drums, all broken, were removed by the fire department. Additionally, about 30 5-gallon containers and 60 to 80 one-gallon containers also were removed.

Appellant argues at length that only nine 50-gallon drums of thinner were stored in the basement, and that all these were removed, unbroken, on Monday following the fire. There is no question that nine drums were removed Monday, but there is substantial evidence that a much larger number of drums were there at the time of the fire, had been burst by the heat, and deposited inflammable liquid on the floor. The evidence permits the conclusion that 750 to 1000 gallons of highly inflammable paint thinner was stored in the basement on the day of the fire.

There is much testimony of firemen that the burning of this volatile liquid contributed strongly to the spread of the fire. The presence of this inflammable substance, and the danger of explosion of the liquid confined in the drums, made the basement too hazardous for the continued presence of firemen, thus minimizing the possibility of extinguishing the fire.

The building had been used as a garage for some years, and oil had soaked into its wooden floors.

The evidence is ample to warrant the conclusion that the large quantity of paint thinner kept in the basement by Gilmore substantially increased the difficulty of fighting the fire; caused it to flare up again and again after being under control; and caused it to spread. Clearly there was evidence to warrant the inference that the presence of the thinner directly and proximately contributed to the destruction of Reid's goods on the second floor. Whether that inference is to be drawn is for the jury to determine. Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497, 259 P.2d 1010.

Gilmore argues, however, that it cannot be held liable for merely contributing to the spread of a fire not caused, in the first instance, by its act or omission. It is true that the presence of the paint thinner would have caused no harm had there been no fire. There is no suggestion that Gilmore was in any way responsible for the starting of the fire.

However, 'It is not necessary that appellant's negligence be the sole proximate cause of respondents' injuries, but it is sufficient that it be one of the contributing causes thereof.' Finnegan v. Royal Realty Co., 35 Cal.2d 409, 419, 218 P.2d 17, 24; see also Champion v. Bennetts, 37 Cal.2d 815, 821, 236 P.2d 155.

Obviously, the storage of materials which are highly inflammable but not self-igniting will cause harm only upon the occurrence of a fire. But '(t)he happening of the very event the likelihood of which makes the actor's conduct negligent and so subjects the actor to liability, cannot relieve him from liability.' Rest., Torts, sec. 449, comment a. This rule is recognized and applied in California. McEvoy v. American Pool Corp., 32 Cal.2d 295, 299, 195 P.2d 783; Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 603, 265 P.2d 542. Just as in McEvoy v. American Pool Corp., supra, harm to a passenger from chemicals carried in a vehicle was foreseeable in the event the vehicle was involved in a collision, so was the spread of fire by the paint thinner foreseeable here.

Of course, Gilmore is liable only if its negligence in storing the thinner was a proximate cause of Reid's loss. But this issue was submitted to the jury on full and proper instructions, and was decided against Gilmore.

There remain the questions whether the storage was negligent as creating an unreasonable risk to the other occupant of the building, and whether Gilmore was under a duty to Reid to avoid creating such risk.

We find no California decision directly in point. The general rule is stated as follows: 'A possessor of land is required to make reasonable use of his premises which causes no unreasonable harm to those in the vicinity, either by reason of the character of the use itself or because of the manner in which it is conducted.' Prosser on Torts, p. 601.

The test of permissible use of one's own land is: 'was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also public policy.' 1 Am.Jur. 506.

In Vowinckel v. N. Clark & Sons, 216 Cal. 156, 13 P.2d 733, operation of kilns and furnaces was ordered enjoined as a nuisance, in part because they were an extraordinary fire hazard. The court said, 216 Cal. at page 164, 13 P.2d at page 737: "A person may not use his own property, even in and about a business in itself lawful, if it be used in such a manner as to seriously interfere with another in the enjoyment of his right in the use of his property."

This decision, dealing with abatement of a nuisance, is not directly in point here. But the theories of nuisance, ultrahazardous activity and negligence are closely related as they apply to the right of a user of real property to be free from unreasonable invasion of, or unreasonable risk to, his use and enjoyment of his property. The corresponding duty is to refrain from causing such invasion or risk.

There seems no sound reason to restrict this right and its corresponding duty to acts which contribute to the origin of a fire, as distinguished from its spread. In other jurisdictions, the rule, particularly in the later cases, appears to follow the view that one is liable for acts or omissions which cause the spread of fire of whatever origin.

'(I)f the owner of premises allows them to remain in such a condition as to constitute a danger to other property in...