Smiley

Plaintiffs, Henderson Brothers Stores, Inc., William D. and Patricia Henderson, and Jobbers Service, Inc., appeal from judgments of nonsuit entered against them in favor of defendants, L. A. MacDonald (doing business as Sacramento Wheel Service, Inc.) and Welsh & Bresee of Sacramento, Inc., and the consequent dismissal of their cause of action against defendant Charles R. Smiley (doing business as C. R. Smiley & Sons) on the ground of mootness.

This action arose from an incident which occurred on December 18, 1971. On that date Smiley, a licensed roofing contractor, was engaged in reroofing MacDonald’s building with asphalt, which must be heated to melting in a large “tar kettle” before it can be applied. Smiley had such a tar kettle, which he had recently purchased from Welsh & Bresee, stationed in a passageway between MacDonald’s building and a warehouse belonging to the Hendersons when the kettle erupted suddenly, spewing flames 10 to 20 feet into the air and set fire to the Hendersons’ building.

At the conclusion of plaintiffs’ case, after nine days of trial, MacDonald and Welsh & Bresee moved for judgments of nonsuit, which were granted. Since plaintiffs and Smiley…