DocketNumber: S. F. No. 339
Citation Numbers: 115 Cal. 448
Judges: Haynes
Filed Date: 12/31/1896
Status: Precedential
Modified Date: 1/12/2023
Action to recover a reward. The cause was tried by the court without a jury, and, at the con
The defendant is a corporation engaged in supplying the city of Eureka and its inhabitants with water, the source of its supply being Elk river. The complaint alleges that in December, 1893, the defendant, for the purpose of protecting said waters from pollution, posted notices setting out a copy of section 374 of the Penal Code, which provides a penalty for polluting, in any of the ways therein enumerated, the waters of any stream from which water is drawn for the supply of any city, and appended thereto the following: “ The undersigned will therefore pay the sum of five hundred dollars ,as a reward for the arrest and conviction of any persons violating the provisions of the above section, by polluting the waters of Elk river in any manner specified therein.”
The complaint further alleged: “That thereafter, to wit, on or about the second day of September, 1894, plaintiff detected and observed one Lawrence Padrick in the act of polluting the waters of Elk river by depositing therein and upon the banks of said stream fecal matter,” and that he caused the arrest and" conviction of Padrick therefor.
The defendant by its first defense put in issue the allegations of the complaint, and for a second defense alleged, in substance that, prior to the alleged act of pollution, the plaintiff was the duly appointed and acting agent of the defendant in detecting, observing, and reporting any and all alleged acts of polluting the waters of said river, for which he was to be paid according to the value of the work so done or the time occupied therein; that prior to the arrest of said Padrick he, as
Plaintiff’s motion to strike out said second defense was properly denied for reasons that will appear in the discussion of the question presented by the exception to the nonsuit.
The grounds upon which the motion for nonsuit was based, briefly stated, are the following: 1. That Padrick did not violate section 374 of the Penal Code; 2. That plaintiff was employed by defendant for the purpose of preventing nuisances, and reporting to it any that he discovered; that he was to be compensated for such services, and had been fully paid for his services rendered in connection with the alleged nuisance committed by Padrick; and 3. That there is a variance between the pleadings and proofs, the particulars of which need not be stated, as the nonsuit should be sustained upon the second ground.
The plaintiff was engaged in getting out railroad ties in the vicinity of Elk river and some of its tributaries, and, some time before the discovery of the alleged nuisance committed by Padrick, he discovered the carcass of a calf in one of said tributaries, and informed defendant of it by letter, and was paid for his services. The defendant then requested the plaintiff to keep a lookout for anything that would pollute the water, and inform the defendant of anything he discovered. There was some conflict in the evidence as to what was said, and as to the extent or scope of the alleged agreement, or whether there was in fact an agreement upon that subject. The plaintiff testified that he said to defendant’s superintendent that, if he happened to see anything in the water he would let him know, but that there was no bargain or agreement that in the future he would report and receive pay for it. He admitted he was requested by the superintendent to report, and that “ he
It is not material whether the plaintiff agreed that he would keep a “lookout” for acts or sources of pollution for a compensation to be paid him. There was at least, a request that he would do so, accompanied by an offer of compensation, and the evidence shows that thereafter plaintiff saw a dead horse in one of the streams tributary to Elk river, and informed the defendant of it, and was paid therefor, and after that he informed the defendant by letter, of the act of said Padrick, which gave rise to the present controversy. Said letter was dated September. 9th, and is as follows:
“Ricks Water Go:
Sir: In compliance with your request I write to inform you that there exists a nuisance in the water in Clapp Gulch. In fact there is a person that does his business in the water quite often. If you will come out Monday afternoon I will show you the place (also the man).....If you can’t come Monday write so I can meet you.”
At the request of the defendant its attorney and Mr. Lord went out and met the plaintiff, and investigated the reported nuisance, and plaintiff was paid therefor two dollars and fifty cents by a check which stated upon its face that it was “for reporting nuisance.”
The plaintiff had thus informed defendant of the alleged nuisance, and of the person by whom it was committed, and also that he “ saw this man polluting the water.”
If the plaintiff had prosecuted Padrick without informing defendant of the commission or existence of the nuisance, and after the conviction, had written the letter above quoted, informing them of its commission, he could not justly claim both the reward and the compensation for reporting the nuisance; and, if he could not do that, he could not entitle himself to the reward by an arrest and conviction after he had received compensation for detecting and reporting the act. It would
The offer of the reward by the defendant was not intended and should not be construed to apply to cases where all the information and means essential to a conviction were in possession of the defendant before the
As to the essential facts, there was no conflict in the evidence, and the nonsuit was properly granted.
The judgment of dismissal should be affirmed.
Searls, 0., and Britt, 0., concurred.
For the reasons given in the foregoing opinion the judgment of dismissal is affirmed.
Harrison, J., Van Fleet, J., McFarland, J.