Bock v. Grooms

• Decision Date: 19 November 1902
• Citation: 92 N.W. 603,2 Neb. [Unof.] 803
• Parties: BOCK v. GROOMS.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 803

92 N.W. 603

BOCK

v.GROOMS.

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 3. Error to district court, Cherry county; Harrington, Judge.

“Not to be officially reported.”

Action by Newton J. Grooms against Ludwig Bock. Judgment for plaintiff. Defendant brings error. Reversed.A. W. Scattergood and M. P. Kinkaid, for plaintiff in error.

John M. Tucker and A. M. Morrissey, for defendant in error.

DUFFIE, C.

By the judgment of the district court of Sheridan county the plaintiff in error was held for damages sustained by the defendant in error, caused by a fire which it is alleged plaintiff in error kindled on his own premises, and negligently permitted to escape and burn over a large extent of country, finally consuming a large amount of the defendant's property. There appears to be no dispute that the fire which caused the injury was the one set by the plaintiff in error, or a back fire set by neighbors to protect their own property against the one kindled by the plaintiff. In the view which we take of the case, the source of the fire is immaterial, as the judgment must be reversed on account of error in the sixth instruction given by the court on its own motion, in the following words: “The jury are instructed by the court that if you find from the evidence that the fire set out by the defendant would not have escaped from him, except for the occurrence of a whirlwind, then your verdict should be for the defendant, unless you find from the evidence that whirlwinds are of frequent occurrence in that vicinity.” The early rule of the common law was very harsh in its dealing with those who started a fire by which the property of another was injured or destroyed, and went almost to the extent of making them absolutely liable for all damages caused thereby. This rule was modified by the statute of 6 Anne, 31, which provided that no action should be maintained against any person in whose house or chambers any fire should accidentally begin, or any recompense be made by him for any damages occasioned thereby. This exemption from liability was further extended by 12 Geo. III, c. 73, and 14 Geo. III, c. 78, to fires which originate in a stable, barn, or other building, or on the estate. Whether or not the statute extended to cases of negligence was for some time a disputed question, but it was finally settled that the statute does not extend its protection to any fires which are negligently or knowingly kindled. Filliter v. Phippard, 11 Q. B. 347. In this country, with few exceptions, the rule has always prevailed that one may lawfully kindle a fire on his own premises for purposes of husbandry, and that he does not become liable for injury caused by it to the property of another, in the absence of negligence in its management. Calkins v. Barger, 44 Barb. 424;Clark v. Foot, 8 Johns. 421;Fahn v. Reichart, 8 Wis. 255, 76 Am. Dec. 237;Miller v. Martin, 16 Mo. 508, 57 Am. Dec. 242;Hanlon v. Ingram, 3 Iowa, 81;Sweeney v. Merrill, 38 Kan. 216, 16 Pac. 454, 5 Am. St. Rep. 734. This being the rule, we are of the...