Cockran v. Rice

• Decision Date: 16 November 1910
• Citation: 128 N.W. 583,26 S.D. 393
• Parties: SAMUEL COCKRAN, Plaintiff and respondent, v. CARL J. RICE, Defendant and appellant.
• Court: South Dakota Supreme Court

26 S.D. 393, 128 N.W. 583 (1910)

SAMUEL COCKRAN, Plaintiff and respondent v CARL J. RICE,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. J. H. McCoy, Judge

Affirmed

J. W. Barrington

Attorney for appellant.

J. J. Batterton, D. J. Leary

Attorneys for respondent.

Opinion filed November 16, 1910

SMITH, J.

Appeal from the circuit court of Roberts county. Defendant appeals from a judgment and an order denying a motion for a new trial. The complaint alleges, in substance, that the plaintiff was the owner of certain hay and a granary containing a large quantity of wheat, of the aggregate value of $912, situated on premises owned by the plaintiff; that on or about the 23d day of October, 1907, defendant intentionally, negligently, and carelessly kindled and set a fire in grass and stubble on lands adjoining plaintiff's land, and permitted the same to burn and spread over and across the plaintiff's land, consuming and destroying the said granary, hay, and wheat, to the plaintiff's damage in the sum of $912. The answer is a general denial. The facts are practically undisputed that in the month of October, 1908, the Western Land & Investment Company owned a 40-acre tract in Roberts county, adjoining premises owned by the plaintiff on which was situated the property described in the complaint; that the Western Land & Investment Company was a corporation of which the defendant, Carl J. Rice, was secretary and general manager; that the defendant, Carl J. Rice; employed one Stevens to plow on the 40-acre tract of land owned by the corporation at an agreed compensation of $1.25 per acre; that Stevens sent his two boys to do the plowing; that, while plowing the land, the boys set a fire to burn off stubble on the ground, and in so doing permitted the fire to spread across the plaintiff's land, consuming his granary and grain and certain stacks of hay. There was no fire break about the stubble in which the fire was set.

Appellant relies upon two propositions of law: First, that he is not responsible for damage caused by fire set by the Stevens boys, for the reason that Stevens was an independent contractor. Second, that the Western Land & Investment Company was Owner of the land upon which Stevens was employed to perform work; that the defendant, Rice, was the managing agent, and the Western Land & Investment Company, and not Rice, would be liable for such damages. Appellant also refers in his brief to certain alleged errors in the admission and exclusion of evidence, and alleges error of the court in his instruction to the jury. The testimony as to the conversation or contract between Stevens and Rice with reference to the plowing is very brief. Stevens, called as a witness for plaintiff, testified:

"The bargain I had with Mr. Rice was to do this plowing by the acre. Mr. Rice, the defendant in this case, hired me. My contract or agreement with him was to plow by the acre. I think I told Mr. Rice at the time he hired me to do the plowing that I was going to have the boys do the plowing for me, ... if they could do it satisfactorily. I believe the defendant told me to go ahead. I was to have so much an acre for the plowing."

Defendant, Carl J. Rice, testified "I had some conversation with Mr. Stevens relative to the plowing of this land. ... I do not know as it was much of any conversation. He wanted to do plowing, and I told him we were paying $1.25 per acre, and he said he would plow it."

The defendant, Rice, was asked whether, in the conversation between himself and Stevens in which he hired Stevens to do the plowing, anything was said as to whom he (Rice) was acting for in doing the hiring, and answered:

"I do not know as there was anything said about that When I hired any one, I did not usually say, 'I am acting for the company.' I told him that we wanted a man to work, and whether they were working for the company or any one else does not cut any figure so they get their pay. I do not know whether I said to Mr. Stevens whether the company employed him or not."

That the boys set the fire, and that the property was destroyed, is wholly undisputed. The defendant offered in evidence a quitclaim deed from Carl J. Rice to the Western Land & Investment Company, acknowledged and recorded; conveying the 40 acres of land to the corporation, which was received in evidence. The defendant, Rice, was permitted to testify that this land was owned by the Western Land & Investment Company, a corporation; that he had no interest in the land except as an officer and agent of the corporation; and that the corporation itself was farming the land. So far as the record discloses, no contention was made at the trial that Stevens, in the performance of his contract to plow the lands in question, was acting as an independent contractor; nor was any request made for an instruction submitting that question to the jury. The claim appears first to have been urged on the motion for a new trial. At the close of the evidence, defendant moved the court for direction of a verdict, for the reason that the undisputed evidence shows that the defendant did not set or authorize to be set the fire in question; that he did not own the land upon which the fire was set and had no interest therein, except that he was agent of the corporation owning the same; and there was no evidence tending to show that it was necessary for the plowing of the land that the fire be set; and that the fire was set by persons not in the employ of the defendant, for the purpose of facilitating the doing of work in which the defendant was not interested, which motion was denied and an exception entered....