Pacific Hardware & Steel Co. v. Cheim

• Decision Date: 02 April 1959
• Citation: 169 Cal.App.2d 339,337 P.2d 508
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC HARDWARE & STEEL COMPANY, Inc., Plaintiff, Appellant and Respondent, v. Leo G. CHEIM, Gladys Cheim, Robert Cheim, Cheim Lumber Company, Defendants, Respondents and Appellants. Civ. 18189.

Page 508

337 P.2d 508

169 Cal.App.2d 339

PACIFIC HARDWARE & STEEL COMPANY, Inc., Plaintiff, Appellant and Respondent, v. Leo G. CHEIM, Gladys Cheim, Robert Cheim, Cheim Lumber Company, Defendants, Respondents and Appellants.

Civ. 18189.

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

April 2, 1959.

Rehearing Denied May 1, 1959.

Hearing Denied May 27, 1959.

Bohnett, Hill, Cottrell & Bohnett, San Jose, Hall, Henry, Oliver & McReavy, San Francisco, for plaintiff, appellant and respondent.

Campbell, Custer, Warburton & Britton, William G. Clark, San Jose, for defendant, respondent and appellant.

DRAPER, Justice.

A fire which originated in defendant's lumber yard spread to the adjoining building of plaintiff. This action is for damages for the loss sustained by plaintiff. The fire was started by three 7-year old boys who were playing with matches in a building called the 'tank house' which, although located on defendant's property, was but slightly used in his business. It is not wholly clear whether plaintiff's case was tried on the theory that defendant proximately contributed to spread of the fire by negligent maintenance of his property (Reid & Sibell, Inc. v. Gilmore & Edwards Co., 134 Cal.App.2d 60, 285 P.2d 364), or facilitated its start by letting combustible waste materials accumulate in the small building and by failing to reasonably guard against assertedly foreseeable use of that building by children for play.

Judgment was entered upon jury verdict in favor of plaintiff. After hearing on defendant's motion for new trial, the court filed memorandum opinion which concluded with the statement 'motion for a new trial * * * is hereby granted.' The next day, order granting new trial 'on the ground of insufficiency of the evidence to justify the verdict' was filed. Plaintiff moved to set aside the second of these orders, and that motion was granted. Plaintiff (by notice filed before the order of vacation) appeals from both orders granting new trial, and defendant appeals from the order vacating the second new trial order.

Disposition of the appeal from the first order will determine the issues. The question is whether that order was based upon the ground of insufficiency of the evidence to sustain the verdict. The portion of the order relevant to that question is:

'The second proposition advanced by defendants presents a more serious question and that is whether the evidence produced by the plaintiff indicates evidence having sufficient probative weight to indicate that the defendants were negligent in the maintenance of their premises, particularly the tank house and if that evidence, assuming it supports the plaintiff's position that the defendants were negligent, was of sufficient strength to indicate that that negligence was the proximate and direct cause of the fire which destroyed plaintiff's property. It is felt that the evidence adduced at the trial by the plaintiff through the testimony of the two boys directly connected with the fire and that of Carol Johnson, who was the first person except the boys to see the fire, fails to substantiate a finding by the jury that the negligence of the defendants in properly maintaining their property was the direct and proximate cause of the jury [sic] and that the tank house as testified to by the boys and Miss Johnson was an attractive nuisance. True the property was not guarded nor was it fenced and there was testimony that children played in or about the premises with the knowledge of the defendants, but it is not felt that that knowledge would place the defendants on notice that children or others would enter upon the property with matches and proceed to so carelessly play with such matches as to cause the same to ignite the tank house which in turn spread to the lumber yard and thence to the plaintiff's property. While no California cases have been cited, nor have we been able to locate any, we are convinced that based upon cases of Moody v. Gulf Ref[ining] Co. , 218 S.W. 817 and Aune v. Oregon Trunk Ry. , 51 P.2d 663, that the negligence of the defendants if any was not the proximate cause of the injury and that such negligence is the proximate cause only when the injury is the natural and probable result of it and in the light of attending circumstances it ought to have been foreseen by the defendants. Here there is nothing to indicate that any third person would bring a dangerous substance, to wit: Matches, upon the premises and by lighting them start a fire.

'It is therefore concluded that the defendants' motion for a new trial ought to be and the same is hereby granted.'

An order which is general and does not designate the ground on which it was granted, i. e., 'Motion for a new trial * * * granted' (Renfer v. Skaggs, 96 Cal.App.2d 380, 215 P.2d 487, 488) must be presumed to be based upon grounds other than...