Cooper v. Mart Associates

• Decision Date: 24 February 1964
• Citation: 37 Cal.Rptr. 145,225 Cal.App.2d 108
• Court: California Court of Appeals Court of Appeals
• Parties: Roger J. COOPER et al., Plaintiffs and Respondents, v. MART ASSOCIATES, dba Western Merchandise Mart, Defendant, Cross-Complainant, Cross-Defendant and Appellant, Armstrong Cork Company, a corporation, Defendant, Cross-Defendant, Cross-Complainant and Respondent. Civ. 21008.

Page 145

37 Cal.Rptr. 145

225 Cal.App.2d 108

Roger J. COOPER et al., Plaintiffs and Respondents, v. MART ASSOCIATES, dba Western Merchandise Mart, Defendant, Cross-Complainant, Cross-Defendant and Appellant Armstrong Cork Company, a corporation, Defendant, Cross-Defendant, Cross-Complainant and Respondent.

Civ. 21008.

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

Feb. 24, 1964.

Hearing Denied April 22, 1964.

Boyd, Flageollet & Benson, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for appellant.

Bronson, Bronson & McKinnon, San Francisco, for respondents Roger J. Cooper et al.

O'Connor, Moran, Cohn & Lynch, San Francisco, George Olshausen, San Francisco, for respondent Armstrong Cork Co.

AGEE, Justice.

Defendant Mart Associates is the master-lessee of the Western Merchandise Mart, a ten-story block-square building fronting on Market Street, in San Francisco. Some 500 tenants rent from Mart, about 75 of which are on the second floor. The spaces rented are used for the purpose of displaying and selling furniture, home equipment and related goods.

On the night of August 5, 1958 a fire occurred on the second floor. The plaintiffs in this ensuing damage action are 22 secondfloor tenants and 3 insurance subrogees. Armstrong Cork is the second-floor tenant of the space in which the fire originated. It was named in plaintiffs' complaint as a defendant and it cross-complained against defendant Mart. Plaintiffs were nonsuited as against Armstrong on the ground that there was no evidence of negligence on its part.

The cause of the fire could not be determined and the trial court instructed the jury that, in considering the issue of Mart's negligence, it was restricted to the question of whether Mart had negligently allowed the fire to spread after it had started.

The jury returned a general verdict against Mart in favor of all plaintiffs on their complaint and in favor of Armstrong on its cross-complaint against Mart. Mart appeals from the judgment entered thereon. No issue is made as to the amounts of the respective awards.

At Mart's request, a form of special verdict was submitted to the jury. The first interrogatory was general and is as follows: 'Was defendant MART ASSOCIATES negligent in some manner which was a cause of the spread of the fire?' The jury's answer was 'Yes.'

Six specific interrogatories followed, to be answered only if the answer to the above general interrogatory was 'Yes.' The answer was 'Yes' to the following specific interrogatory: 'Was the spread of the fire caused by a failure of Walter Little [night watchman] to enter and inspect the interior of the Armstrong Cork premises?'

All of the remaining specific interrogatories except one were answered with a 'No.' As to that one, the answer was 'Undecided because of contradictory testimony.' The burden of proving the offirmative of the issue embodied in that interrogatory was upon respondents and therefore the answer given by the jury had the same legal effect as an answer in the negative.

By these five negative answers, the jury found that the spread of the fire from the Armstrong Cork premises was not caused (1) by failure of Mart to construct the glass partitions all the way to the ceiling, or (2) by delay of John Anderson (janitor) in reporting the fire to Walter Little, or (3) by a delay of Walter Little in reporting the fire to the fire department, or (4) by a failure of John Anderson to use the fire extinguisher and fire hose, provided by the building, after he first discovered the fire, or (5) by a failure of Walter Little to use such fire extinguisher and fire hose after the fire was reported to him. As to (3) above, the jury added: 'There was no delay after he became aware of the fire.'

Respondents point out that the general finding of negligence may be supported by any evidence of negligence in the record on which no finding was made by the special verdicts. (Hudgins v. Standard Oil Co., 136 Cal.App. 44, 50, 28 P.2d 433.) However, it is unnecessary to discuss this in view of our conclusion that the following question must be answered in the affirmative.

Is there substantial evidence to support the jury's finding that the spread of the fire was caused by night watchman Little's failure to enter and inspect the interior of the Armstrong Premises?

There were two fires on the night of August 5, 1958. The first occurred about 9:30. Janitress de la Fuente detected smoke in the space occupied by Armstrong Cork. She summoned Little and turned on the lights. He inspected the premises and called the fire department. It arrived in six minutes.

The firemen discovered that the smoke was coming from some smoldering rugs which were hung fan-like from the ceiling, just below some recessed lights. They removed two of these rugs and wetted them down. This took above five minutes. On leaving the premises, Battalion Chief Dillon told Little that he thought that 'everything was all right, but if he [Little] was uncertain about anything, to give us a call immediately.'

Janitress de la Fuente testified that, after everyone had gotten out, she turned off all of the Armstrong lights and left the windows and door open in order to 'get the place ventilated'; that she was directed to do this by head janitor Spingola; that she then resumed work in another area of the second floor.

Little made two trips back to the second floor. He testified that he 'was worried' and wanted to check for smoke and 'to see if anything was reoccurring'; that his first trip was about 10:00 p. m.; that he could smell smoke but he did not enter the Armstrong space; that there were no lights on inside there; that he just stayed in the corridor outside and peeked in; that after taking this peek he went back to his desk in the lobby on the first floor.

Little testified that he again went up about 10:35 p. m.; that he 'went through the same thing'; that he smelled smoke but did not see any; that he could not recall whether the door to the Armstrong space was open or closed; that he was satisfied that the smoke was coming from Armstrong but could not determine from where he stood in the corridor from what part of its space it was coming; that he made no effort to determinate this.

Little was alerted by janitress Boutte about 11:15 p. m. She came down the stairway from the second floor to the first floor, yelling 'fire' repeatedly. Little attempted to go up the stairway to check but was driven back by the smoke. He then telephoned the fire department at 11:19 p. m. and they again arrived within six minutes.

However, by that time flames were coming out of the windows and the fire had increased to such proportions that it was not extinguished until 5:30 a. m.

Mart's general manager testified that it was one of the duties of the night watchman to watch out for the presence of fire and to call the fire department immediately 'unless it [the fire] was confined to a wastebasket.' All of the leases expressly provided that Mart's employees could enter and inspect any of the leased premises.

At the time of the first fire, janitress de la Fuente had shown Little where the light switches inside the Armstrong premises were located. By going in and turning on the light, the first fire was easily located. It is reasonable to conclude that a similar inspection would have disclosed the second fire. The effectiveness of such action was demonstrated by the promptness with which the first fire was extinguished. Yet Little chose to stay out in the corridor and simply peer into the darkened interior.

In our opinion, there is substantial evidence to support the jury's finding that the spread of the fire was caused by Little's failure to enter and inspect the interior of the Armstrong premises.

Appellant argues that Little was excused from making any more of an inspection than he did because he believed that the smoke which he smelled came from the first fire. However, this merely presents an issue of fact which the jury determined adversely to appellant.

Waiver. Paragraph 16 of the uniform lease prepared by appellant provides as follows: 'Lessee, as a material part of the consideration for this lease, hereby waives all claims for loss of property, by fire or water or theft or otherwise, occurring in the demised premises or in said building.'

Paragraph 17 provides as follows: 'This lease is made upon the express condition that Lessor is to be free from all liability and claim for damages by reason of any injury to any person or persons, including Lessee, or property of any king whatsoever and to whomsoever belonging, including Lessee's, from any cause or causes whatsoever while in, upon, or in any way connected with the said demised premises during the term of this lease or any extension hereof or any occupancy hereunder, Lessee hereby covenanting and agreeing to indemnify and save harmless Lessor from all liability, loss, cost and obligations on account or arising out of any such injuries or losses however occurring, provided, however, that nothing herein shall be construed as relieving Lessor of liability for its own or its employee's negligence.' (Italics ours.)

Appellant contends that the concluding provision italicized above is limited in its application to paragraph 17 and does not affect paragraph 16. We do not agree.

Under paragraph 17, as to lessee's property upon the demised premises, it is provided that lessor is relieved of liability for any kind of damage thereto. As to the property of others upon the demised premises it is provided that lessee indemnifies lessor against liability for any kind of damage thereto.

Neither of these two results obtains, however, when the liability of the lessor is based upon 'its own or its employee's negligence.' In that event, appellant-lessor has agreed that it shall not be relieved of liability.

Appellant argues, however, that the damage herein was caused by fire and that the particular...