PEOPLE v. ZEGRAS (1946)

The defendants have appealed from an order denying their motion for a change of the place of trial from Napa County to Alameda County, in which they reside. The only question involved is whether the suit is based on an obligation to reimburse the State of California for expenses incurred by its Department of Forestry, pursuant to an act of the legislature creating a liability against persons or their agents for negligently setting fires, or for a lack of diligence in preventing them from spreading to other properties. Stats.1931, p. 1644, 1 Deering's Gen.Laws, p. 1080, Act 2586. If the obligation is quasi ex contractu, growing out of a statutory requirement to use diligence in controlling a fire, and the place of performance of that obligation is deemed to be in Napa County where the expenses were incurred in extinguishing the fire, then the plaintiff had the option under Section 395 of the Code of Civil Procedure to bring the suit in that county, and the court properly denied defendants' motion for a change of venue.

The complaint is couched in two counts. The first cause alleges that the defendants negligently set fire to designated real property in Napa County, covered with timber, brush and grass, and that the Department of Forestry of the State of California incurred an expense of $1,713.98, in fighting and suppressing the fire, which expenses, after demand therefor, the defendants refused to pay. The second cause alleges that the defendants negligently allowed the fire to be set on said property and permitted it to spread to other properties, and that said Department of Forestry incurred said expenses in extinguishing the fire, which indebtedness, upon demand, the defendants refused to pay.

The defendants' motion to change the place of trial to Alameda Count was denied. For the purpose of this appeal it is conceded the defendants reside in Alameda County.

The ‘Fire Liability Law’, previously referred to, creates a civil liability against ‘Any person who: (1) Personally or through another, * * * (2) Wilfully, negligently, or in violation of law * * *: (1) Sets fire to, (2) Allows fire to be set to, (3) Allows a fire kindled or attended by him to escape to the property, * * * of another, * * *.’ Section 3 of that act provides: ‘The expenses of fighting such fires shall be a charge against any person made liable by this act for damages caused thereby. Such charge shall constitute a debt of the person charged and shall be collectible by the party, or by the federal, state, county or private agency incurring such expenses in the same manner as in the case of an obligation under a contract, expressed or implied.’ (Italics added.)

Statutes creating a liability for repayment of damages and expenses incurred by individuals or the state against persons who negligently set fires or permit them to spread to other properties have been enacted and upheld in this and other jurisdictions. Richter v. Larabee, 136 Cal.App. 16, 27 P.2d 954; Osborne v. Winter, 133 Cal.App. 664, 24 P.2d 892; Jno. L. Witney, Inc. v. Sierra Ry. Co., 123 Cal.App. 430, 11 P.2d 415; 36 C.J.S., Fires, §§ 15 and 16, page 819. The California cases last cited did not involve the question of venue or the determination of whether the actions were quasi ex contractu in nature but they do support the validity of the statutes creating such liability.

The learned trial judge wrote a very able opinion in which he concludes that the liability created by the statute establishes Napa County, where the fire occurred and the service of extinguishing it was rendered, as the proper place of trial. It is not necessary to determine whether the obligation is in the nature of a penalty or not, if it is quasi contractual. It has been held that an obligation created by statute may be quasi contractual. Journal Publishing Co. v. Drake, 9 Cir., 199 F. 572, 575; Stearns v. United States, 22 Feb.Cas. page 1188, No. 13,341, 2 Paine 300; 25 C.J. 1183, § 83. Regardless of whether a tort may have been involved in the transaction on this case we assume that the action as disclosed by the allegations of the complaint, is founded on an implied contract which every person enters into with the state to observe the laws. The statute imposes a personal liability to pay the ‘debt’ created for expenses incurred by the state in fighting and extinguishing the fire negligently set or negligently permitted to spread to other properties.

Section 395 of the Code of Civil Procedure was amended in 1939, Stats.1939, p. 2733. The effect of that amendment was to enlarge the rights of the plaintiff so as to give him a choice of venue in eithr the county where the contract, expressed or implied, is to be performed, or in the county where the defendant, or any defendant, resides. Graham v. Mixon, 177 Cal. 88, 92, 169 P. 1003, L.R.A.1918F. 1023; Rains v. Diamond Match Co., 171 Cal. 326, 328, 153 P. 239.

The complaint in this case clearly charges the defendants with a ‘debt’ created pursuant to the statute for expenses incurred by the Department of Forestry of the State of California in ‘fighting and suppressing said fire’ negligently set or negligently permitted by them to spread to other properties in Napa County That statutory obligation is quasi ex contractu. Hays v. Bank of America, Cal.App. 162 P.2d 679; Quong Ham Wah Co. v. Ind. Acc. Comm., 184 Cal. 26, 36, 192 P. 1021, 12 A.L.R. 1190. It is a civil liability for a debt growing out of the breach of an implied contract to exercise due care to regulate and control fires negligently started or permitted by individuals to spread to other lands. The statute contemplates that the exercise of such due care will be performed in the county where the fire is set or is negligently permitted to spread to other lands. In the present case that implied contract was to be performed in Napa County. Section 3 of the act specifically provides that such expenses for fighting or extinguishing fires ‘shall constitute a debt’, and that it is collectible ‘in the same manner as in the case of an obligation under a contract, expressed or implied.’ The nature of an action must be determined by the gravamen ascertained from the complaint taken as a whole. Williamson v. Pacific Greyhound Lines, 67 Cal.App.2d 250, 153 P.2d 990. The gravamen of this action, as indicated by the complaint, is founded on a statutory liability for expenses incurred in fighting and extinguishing a fire in Napa County which was either set or permitted by the defendants to spread to other property, as the result of a breach of an implied contract to exercise due care on their part.

Since the suit is founded on an implied contract to use due diligence to control a fire which occurred in Napa County, and that obligation was to be performed in that county, the plaintiff had the option to bring the action either in that county or in the county where the defendants reside. Code of Civ.Proc. § 395. The cited section provides that the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed. The presumption, therefore, is that the obligation was to be performed in Napa County where the fire occurred.

Section 395 provides in part: ‘When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary.’

The statute created the implied contract on the part of the defendants in this case that if they set a fire or permitted it to be set, they would exercise due care to control it and to prevent it from spreading to other property. In the performance of their acts in lighting or controlling the fire, the defendants were bound to observe the statutory requirements in that regard. The manner of their performance was a necessary part of their employment. Hays v. Bank of America, supra.

The trial court therefore properly denied the defendants' motion for a change of venue.

The order is affirmed.

THOMPSON, Justice.

PEEK, J., and ADAMS, P. J., concur.