Bushnell v. Telluride Power Co.

• Decision Date: 30 December 1944
• Docket Number: No. 2942.,2942.
• Parties: BUSHNELL et al. v. TELLURIDE POWER CO.
• Court: U.S. Court of Appeals — Tenth Circuit

145 F.2d 950 (1944)

BUSHNELL et al. v. TELLURIDE POWER CO.

No. 2942.

Circuit Court of Appeals, Tenth Circuit.

November 14, 1944.

Rehearing Denied December 30, 1944.

Willard Hanson, of Salt Lake City, Utah (Stewart M. Hanson, of Salt Lake City, Utah, on the brief), for appellants.

P. T. Farnsworth, Jr., of Salt Lake City, Utah (H. R. Waldo, of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Telluride Power Company brought this action against I. Ernest Bushnell, Ura Bushnell, and J. Leo Stott to recover damages. It was alleged in the complaint that defendants negligently and without authority of law started a fire on certain land in Millard County, Utah, covered with sagebrush and other inflammable material; that some of the land was part of the public domain of the United States, some was owned by the State of Utah, and some was in private ownership, but none was the property of the defendants; that the land was within a duly created fire district; that the fire was started during a closed season, and without the defendants having secured a written or printed permit from the chief fire warden of the state, or one of his deputies; that after it was started, the defendants negligently failed to extinguish it, but carelessly and negligently permitted it to spread beyond their control; and that it destroyed a transmission power line of the plaintiff.

By answer the defendant I. Ernest Bushnell pleaded that he owned land in Millard County; that he had entered into negotiations with the United States for the exchange of certain lands; that in pursuance of such negotiations and agreements, he had been instructed by those in charge of the land of the United States to take possession of it, which he did; that before such land could be planted or put to any beneficial use, it was necessary to burn off the brush, weeds, and grass; that he constructed a fire lane and took the ordinary precautions to confine the fire; that he applied to the fire warden for a permit to burn such brush, weeds, and grass, that the fire warden did not have any permits with him but told the defendant that it would be granted and that he might proceed on the assurance; that relying upon such assurance the fire was started; that after it had been burning for several hours, an unusual wind of hurricane proportions arose; that despite the exercise of every reasonable precaution for its control, the fire escaped and spread for some distance before it was extinguished; and that therefore if any property belonging to plaintiff was destroyed, it was without negligence or other fault of the defendant. Defendant Ural Bushnell answered that he was employed by the defendant I. Ernest Bushnell to assist in the burning of the brush, weeds and grass on land which he was advised and understood was under the control of the defendant I. Ernest Bushnell. And he further pleaded substantially the same facts respecting the extraordinary wind, the exercise of reasonable care to control the fire, and its escape despite such care. The defendant Stott answered that the defendant I. Ernest Bushnell advised him that all necessary arrangements had been made for the fire, and requested that the defendant Stott bring some of his men and assist with it; that he understood the requisite permission to clear the land had been granted; and that with such understanding he did assist. And he likewise pleaded that if the fire destroyed property of plaintiff it was due to matters and things beyond his control.

The evidence did not present any issue respecting the extent of the damage which plaintiff had sustained, if the defendants were liable. At the close of all the evidence each party moved for a directed verdict. The court sustained the motion of plaintiff, the directed verdict was returned, judgment was entered, and defendant appealed.

It is contended that the evidence failed to show negligence on the part of the defendants below in starting the fire or in failing to prevent its spread, and therefore the court should have directed a verdict for the defendants. It is further contended that the question of negligence in either respect was a question of fact which should have been submitted to the jury. These contentions may be considered together. It is the general rule that persons in the lawful use of fire must exercise ordinary care in the circumstances to prevent it from injuring others. Liability in damages for injuries to others resulting from fire is predicated upon negligence. In the absence of a controlling statute establishing a different standard, an action for damages will not lie unless there was negligence on the part of the person charged, and the burden of proof rests on plaintiff to show the negligence. Kendall v. Fordham, 79 Utah 256, 9 P.2d 183; Orander v. Stafford, 98 W.Va. 499, 127 S.E. 330, 42 A.L.R. 780; Cobb v. Twitchell, 91 Fla. 539, 108 So. 186, 45 A.L.R. 865.

There is no need to review the evidence at length. If this were an ordinary action...