Johnston v. City of Grants Pass , 120 Or. 364 ( 1926 )

Rehearing denied January 19, 1927. ON PETITION FOR REHEARING. (252 P. 1118.) A petition for rehearing has been presented urging that the court in its former opinion did not pass upon the question presented by the appeal. It is claimed that the fire was set out on unoccupied lots without any request from the owners. The ordinance prescribes that the superintendent of streets shall burn grass, unless the owner of the land burns the same in accordance with the ordinance referred to in the former opinion. We have carefully re-examined the record. The record clearly discloses that the fireman who started the fire was sent to the place of fire in his capacity as a fireman, in accordance with the ordinance with a permit to the owner of adjoining premises to burn the grass on her premises. There is no evidence at all that any attempt was made by the superintendent of streets to burn the grass in accordance with the ordinance. The question of the liability of the city for any neglect exercised by the superintendent of streets when acting under the ordinance is not presented by this appeal or by the case. The city is no more liable for the act of the fireman in starting the fire without authority than it would be if a transient or some children had started the fire. Accepting the verdict of the jury as conclusive that the fire was started by the fireman, we are constrained to adhere to our former opinion, because his act was entirely unauthorized and no attempt was made by him or any other officer of the city to comply with the ordinance directing the burning to be done by the superintendent of streets. All of his conduct was ostensibly under authority of the permit issued to the owner of the adjoining premises. The fireman personally might be liable for his unauthorized act, but the city cannot be held liable under the circumstances of the facts disclosed by this proceeding. Rehearing is denied.

REHEARING DENIED.

McBRIDE, C.J., and BELT and RAND, JJ., concur.