Gould v. Madonna

• Decision Date: 13 March 1970
• Citation: 85 Cal.Rptr. 457,5 Cal.App.3d 404
• Court: California Court of Appeals Court of Appeals
• Parties: James GOULD, Plaintiff and Appellant, v. Alexander Paul MADONNA, doing business as Madonna Construction Co., Defendant and Respondent. Civ. 12157.

Page 457

85 Cal.Rptr. 457

5 Cal.App.3d 404

James GOULD, Plaintiff and Appellant, v. Alexander Paul MADONNA, doing business as Madonna Construction Co., Defendant and Respondent.

Civ. 12157.

Court of Appeal, Third District, California.

March 13, 1970.

Hearing Denied May 6, 1970.

[5 Cal.App.3d 405] John R. Couzens, Auburn, for plaintiff-appellant.

Chamberlain & Chamberlain, Auburn, for defendant-respondent.

BRAY, Associate Justice (Assigned).

Plaintiff appeals from that part of a judgment after court trial in his favor denying him double damages instead of actual damages.

QUESTION PRESENTED

Does section 3346 of the Civil Code or section 13008 of the Health and Safety Code apply to damage to property resulting from fires negligently set?

RECORD

Numerous suits for damages were consolidated for trial of the liability issue, and defendant's liability was established. Before trial of the issue of damages in plaintiff's case, Drewry v. Welch (1965) 236 Cal.App.2d 159, 46 Cal.Rptr. 65, was decided, holding that under section 3346 of the Civil Code, double damages are mandatory for wrongful injuries to which the section applies. Thereupon, plaintiff followed a number of procedures to have it determined that he was entitled to double damages for the property injuries charged in his complaint.

It is unnecessary to detail these procedures. Suffice it to say that if section 3346 of the Civil Code applies, he fully protected himself to receive the benefit of that section.

Defendant under a contract with the State of California was constructing a portion of U.S. Highway 40 (now U.S. Highway 80) in Placer County. Defendant's employees negligently set and maintained fires to burn trees, stumps, brush and other debris in the area of the construction, resulting in an uncontrolled fire which burned extensive areas, including timber, trees, underwood and land of plaintiff. At the trial the court, refusing to award double damages, found that plaintiff was damaged in the sum of $51,500. The computation of damages was based upon the difference in the fair market value of plaintiff's land before as compared to its value after the fire. Judgment was entered accordingly.

Section 3346 of the Civil Code (Deering's) is headed: '(Injuries to trees, etc.: Trespass committed while acting in reliance upon boundary lines.)' In pertinent part it provides: '(a) For wrongful injuries to timber, trees, or underwood on the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, Except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.' (Emphasis added.)

Subdivision (b) deals with damages for a trespass committed while acting in reliance upon an incorrectly survey of boundary lines.

It is the provision concerning a 'casual or involuntary' trespass which defendant would have applied in this case. There is no California case in which section 3346 of the Civil Code has been applied to the negligent spreading of a fire, and we have found no case determining that such spreading is a trespass.

Until 1931, under then section 3346a of the Civil Code and section 3346 of the Political Code, a person negligently allowing fire to extend beyond his own had was liable in treble damages to the party injured. (The two sections were identical in language.)

Statutes of 1931, chapter 790, page 1644, repealed both sections, but provided for actual damages caused by negligently setting or allowing fires to escape, and added liability for the expenses of fighting such fires. Based upon such provisions and those formerly in section 3346a of the Civil Code and section 3344 of the Political Code, sections 13007 and 13008 of the Health and Safety Code were enacted in 1953. Section 13007 provides: 'Any person who personally or through another wilfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned, is liable to the owner of such property for any damages to the property caused by the fire.'

Section 13008 deals with fires set on one's property and escaping to that of another. ¹

In Garnier v. Porter (1891) 90 Cal. 105, 27 P. 55 dealing with former section 3344 of the Political Code, the court stated that this section was designed to prevent fires from destroying timber, grass and other property, which fires were then not uncommon. In Kennedy v. Minarets & Western Ry. Co. (1928) 90 Cal.App. 563, 266 P. 353, the court said, concerning then section 3344 of the Political Code and section 3346a of the Civil Code, that the danger from fires in dry country was so great as to justify the police power of the state to impose treble damages.

It is interesting to note that while the statutes expressly dealing with damages caused by fires were eliminating penalties or restricting recoverable damages to actual damages, section 3346 of the Civil Code, dealing with ...