Summary
In King, our Supreme Court concluded (at p. 99): "In a case of this character the question of interest must be left to the discretion of the jury."
Summary of this case from Levy-Zentner Co. v. Southern Pac. TransportationOpinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. A. Gray, Judge.
COUNSEL:
King, if a trespasser, cannot complain of negligence; but being in under the lease, he is bound by its terms as much as the original lessee. (McCoy v. Southern P. Co ., 94 Cal. 568; Civ. Code, sec. 3521; Pardee v. Gray , 66 Cal. 524; Coburn v. Goodall , 72 Cal. 504; 1 Am. St. Rep. 75.) The court erred in refusing to allow proof that King knew of the exemption clause in the lease. (Thomas v. Hannibal etc. Ry. Co ., 82 Mo. 538; Nolon v. Chicago etc. R. R. Co ., 23 Mo.App. 353.)
Foshay Walker, for Appellant.
Van Ness & Redman, for Respondents.
JUDGES: Garoutte, J. Van Fleet, J., and Harrison, J., concurred.
OPINION
GAROUTTE, Judge
[41 P. 787] In an action entitled Stephens et al. v. Southern Pacific Co. (ante, p. 86), a corporation, No. 18,369, this day decided, damages were sought to be recovered from this defendant for the destruction of a certain warehouse by fire engendered by the negligence of defendant. The respondent King, in this case, had charge of this warehouse as the agent of Stephens, the owner at the time of the fire, and now seeks to recover from defendant damages for the destruction by that fire of certain property belonging to him, and then stored in said warehouse. Judgment went against defendant, and this is an appeal from such judgment, and from an order denying the motion for a new trial.
At the trial defendant offered to prove that the plaintiff, King, had actual notice of the covenant in the lease to Stephens, exempting defendant from liability for property destroyed by fire, which covenant we have considered at length in the above-mentioned case of Stephens v. Southern P. Co. Under objection defendant was not allowed to make the proof, and the ruling of the court in this regard forms the main ground for the present appeal.
Was the question of plaintiff's knowledge of the existence of such a covenant material to the merits of this litigation? We fail to see its materiality. It is not necessary to determine the length and breadth of this covenant, for of itself it could in no way bind third parties. Whatever liabilities Stephens assumed thereunder, were a matter solely with him and the defendant. And the defendant's primary liability to third parties was the same after as before the making of such a lease. Conceding that all property stored in the warehouse, as between the parties to the lease, was the property of Stephens, yet as to third parties such contention avails defendant nothing. Plaintiff King, as the agent of Stephens, received goods in storage, and we do not see that he is in a different position by reason of having stored his own goods therein than though he had received upon storage the goods of other parties. These goods were not stored by King as Stephen's goods, but rather by Stephens, through his agent, as King's goods. King's agency would seem to be an immaterial element in the case, and no principle of law is cited that would bar a recovery from the defendant for the destruction of goods arising from its negligence, by any person storing goods in the warehouse under contract with the owner. The question of notice as to this covenant would be immaterial, as a matter in which third parties had no interest. Let us suppose a party storing goods had notice of the lease in this particular. It would put him upon notice of what? Why, simply that by the lease in its widest possible sense Stephens would indemnify the defendant against any loss from the destruction by fire of property situated upon the leased land, a matter certainly of no interest or moment to a party contemplating a storage of his goods in the warehouse.
Stephens could not recover for the destruction of his warehouse, or his property stored therein, nor could his lessee having notice of the covenant. (Thomas v. Hannibal etc. R. R. Co ., 82 Mo. 538; Nolon v. Chicago etc. R. R. Co ., 23 Mo.App. 355.) But plaintiff King occupied no such position. He was no lessee; no rights or interests ever passed to him under the lease, and he was in no sense in privity with Stephens. His right to recover grows out of, and is based upon, the fact that he was lawfully entitled to store his goods in the warehouse, without any regard to the exemption clause of the lease made by the owner, and that while so stored they were destroyed through the negligence of the defendant's employees.
The cases relied upon to support appellant's contention fall short of the mark. McCoy v. Southern P. Co ., 94 Cal. 568, is based upon a section of the Civil Code, and must be read in the light of that section. If the plaintiff in that case had been a tenant of the Boyds, without notice as to their agreement with defendant regarding the opening in the fence, then the doctrine of the Missouri cases above cited would probably have been applicable, and a recovery sustained; but the status of plaintiff was held to be that of a mere licensee of the Boyd Brothers, they being at all times in the actual possession of the land, and, for the purposes of the statute heretofore referred to, the owners thereof.
The court gave the jury the following instruction:
" If from the evidence you are satisfied that the plaintiff, King, had in the warehouse and addition thereto, referred to in the testimony as Blum's warehouse, the property testified to by him, and that the value of said property was, at the time of its destruction by fire, of the value testified to by him, and that said fire and the destruction of said property was caused by the negligence of the defendant, you will find a verdict for plaintiffs for five thousand five hundred dollars, with interest thereon at the rate of seven per cent per annum from the date of the fire." This instruction is clearly erroneous in this, that it arbitrarily required the jury to add interest from the date of the fire to such sum as they might find to be the amount of the damage caused. In a case of this character the question of interest must be left to the discretion of the jury. Section 3288 of the Civil Code provides: "In an action for the breach of an obligation [41 P. 788] arising from contract, and in every case of oppression, fraud, or malice, interest may be given in the discretion of the jury." We think the exception to the instruction sufficiently full and explicit, and, the verdict being for a lump sum, a modification of the judgment cannot be made.
For this reason the judgment and order are reversed and the cause remanded for a new trial.