Hanifin v. C & R Const. Co.
| Decision Date | 26 April 1943 |
| Citation | 48 N.E.2d 913,313 Mass. 651 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | THOMAS E. HANIFIN v. C & R CONSTRUCTION COMPANY. |
March 1, 1943.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Sale, Of timber Conditional, Construction of contract of sale. Contract Construction. Fire. Negligence, Trespasser, One owning or controlling real estate, Fire, Contributory, Proximate cause. Proximate Cause. Practice, Civil, Auditor: findings conclusions from findings.
A conclusion by an auditor, whose findings of fact were to be final, not shown to have been based solely upon subsidiary facts found by him and not inconsistent therewith, that lumber of the plaintiff, when burned through negligence of the defendant while it was on land of the
Commonwealth, was "outside the area covered by his [the plaintiff's] contract" with the Commonwealth, must be taken to have been based on evidence not reported to the effect that the "area" referred to in the finding was what was meant by the ambiguous words "said premises" in a provision of the contract that "all cut timber and hardwood" was "to be stacked upon such area as" might "be designated" and was to be removed therefrom on or before a certain date, and that
"all cut wood and lumber remaining on said premises" after that date should "be deemed abandoned and become the property of the
Commonwealth." One, having the right to cut and remove timber under a contract with the
Commonwealth providing that cut timber should be stacked upon "such area" as might be "designated" by a commission representing the
Commonwealth and that lumber remaining there after a specified date should "be deemed abandoned and become the property of the
Commonwealth," had not lost his title to lumber after that date destroyed by fire while stacked on land of the Commonwealth where it appeared that the place where it was stacked was "outside the area covered by" the contract and that therefore the "forfeiture" clause was not applicable.
The owner of lumber stored on land of the Commonwealth and destroyed by fire through negligence of a contractor burning over other land of the
Commonwealth under a contract with it would not be precluded from recovery from the contractor by the mere fact that the owner of the lumber was a trespasser as to the Commonwealth on the place where the limber was stored, where it appeared that the defendant's contract gave him no rights or duties in that place.
A conclusion by an auditor, whose findings of fact were to be final, following findings of subsidiary facts, that "in these circumstances" the plaintiff was contributorily negligent, must be taken to have been based solely on the subsidiary findings in his report and was open to review by the trial court and by this court.
Even if a plaintiff, seeking recovery for lumber burned through negligence of the defendant, carelessly created a fire hazard in that he did not remove combustible materials from the ground around his lumber although he knew that the defendant was burning over a nearby area and that "in the event that sparks or hot coals were blown" into the place where the plaintiff's lumber was stored "there would be more likelihood of his lumber being destroyed by fire than there would have been if said fire hazard did not exist," a conclusion was not proper that negligence of the plaintiff contributed to his loss where it appeared that the fire which destroyed his lumber did not result from sparks or hot coals so blown, but burned along the ground between the area where it had been started by the defendant and the plaintiff's lumber and was of such a nature and intensity that it was just as likely that the plaintiff's lumber in its path would have been destroyed even if he had removed the combustible materials around his lumber.
TORT. Writ in the Superior Court dated August 18, 1939. The case was heard by Collins, J., upon the report of an auditor, whose findings of fact were to be final and who reported a conclusion that the plaintiff was contributorily negligent but that, if "as a matter of law, the plaintiff is entitled to recover . . . he is entitled to recover the sum of $11,365.36," with interest to the date of the report, $1,591.14, a total of $12,956.50.
The judge allowed a "motion of the plaintiff for judgment on the report of the auditor" and "found" for the plaintiff "on the report of the auditor" in the sum of $13,151.58, with interest thereon from the date of filing of the report. He then reported the case to this court for determination under G. L. (Ter. Ed.) c. 231, Section 111.
G. A. McLaughlin, (E.
A. Counihan, Jr., with him,) for the defendant.
E. B. Hanify, (R.
J. Phelan, Jr., with him,) for the plaintiff.
The plaintiff's declaration is in two counts, in each of which it is alleged (a) that on June 7, 1939, his lumber was destroyed by a fire which was carelessly and negligently set by the defendant, its agents or servants, and which spread to the lumber, or (b) that the defendant carelessly or negligently failed to control the fire and permitted it to spread to and destroy the lumber. The case was referred to an auditor, whose findings of fact were to be final.
In September, 1937 the Commonwealth, acting through its metropolitan district water supply commission, hereinafter referred to as the commission, gave the plaintiff several bills of sale, so called, of wood and timber standing on portions of the area comprised in the construction of the Quabbin reservoir. In two of these bills of sale, dated September 16, 1937, the wood and timber were generally described as standing on certain designated acres of land owned by the Commonwealth and shown on plans of the commission. Each of these bills of sale gave the plaintiff the right to enter upon the land and to erect and maintain portable sawmills at such locations as might be agreed upon between the plaintiff and the commission, "and to cut and remove from said area standing wood and timber on or before July 15, 1938," and provided that "any and all cut wood and timber remaining on said area after that date (July 15, 1938) shall be deemed abandoned and become the property of the Commonwealth," and that "all cut timber and hardwood is to be stacked upon such area as may be designated by the Commission and where it will not interfere with any operation of the Commission, and to be removed therefrom on or before December 1, 1938 and any and all cut wood and lumber remaining on said premises after that date (December 1, 1938) shall be deemed abandoned and become the property of the Commonwealth."
The plaintiff received another bill of sale, so called, from the commission on May 12, 1938, of "Only such standing wood and timber on land owned by the Commonwealth . . . and being that portion below said flow line as shown on plans of the . . . Commission." This bill of sale gave the plaintiff the right to enter and maintain sawmills as in the previous instruments, but he was given until July 31, 1938, to cut and remove "from said area" the "standing wood and timber." It also contained provisions for stacking "all cut timber and hardwood" at some designated place and for forfeitures similar to those in the previous bills of sale except that the forfeiture dates were respectively July 31, 1938, and April 1, 1939. The plaintiff purchased additional standing timber from the Commonwealth and was given similar bills of sales therefor, none of which was introduced in evidence.
The defendant, on or about October 25, 1938, entered into a written contract with the Commonwealth through the commission, by the terms of which, among other things, the defendant was required to clear all the land below the "flow line," which was the line above which the water in the Quabbin reservoir, when completed, would not rise. The defendant was required to take full responsibility for the safety and quality of the work to be done and for the sufficiency of the methods to be employed in its prosecution. It was required to take all necessary precautions to prevent the starting or spreading of fires on areas outside the limits of the clearing to be done under the contract, and in "burning materials for . . . [its] clearing operations," it was required to comply with the regulations of the fire wardens or other officers having authority in such matters. All burning, unless otherwise permitted, was required to be done "within the limits of this contract" and not less than one hundred feet, measured horizontally, from any trees that were to be left standing, and no burning was to be done on any areas when, in the opinion of the engineer, wind and climatic conditions were such that areas outside the clearing line would be endangered by fire, "whether or not the Contractor . . . [held] a permit to burn from a forest warden, fire warden or any other person or persons authorized to issue permits for open fires." See G. L. [Ter. Ed.] c. 48, Section 13, as amended.) The defendant was required to give its personal attention constantly to the faithful prosecution of the work, to keep the same under its personal control, and not to assign or sublet the work, or any part thereof, without the previous written consent of the commission.
The plaintiff completed the cutting of the standing timber on the areas specified in the first two bills of sale on or before July 15, 1938, the date therein provided, and completed the cutting of the standing timber in the area specified in the third bill of sale on or before July 31, 1938, the date therein specified. Some time in December, 1937, the plaintiff requested from a forester "on the job" representing the commission, permission to store his cut lumber until December 1, 1939, in an...
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