Chapman v. Barnett
| Decision Date | 15 September 1960 |
| Docket Number | No. 1,No. 19126,19126,1 |
| Citation | 131 Ind.App. 30,169 N.E.2d 212 |
| Parties | Raymond L. CHAPMAN, Appellant, v. Noah BARNETT and Ida Barnett, Appellees |
| Court | Indiana Appellate Court |
Nichols & Nichols, Knox, for appellant.
Paul Reed, Knox, for appellees.
This is an action for damages to property as the result of fire. It was commenced in the Starke Circuit Court by appellees, Noah and Ida Barnett, as plaintiffs, against appellant, Raymond L. Chapman, and his wife, Margene A. Chapman, as defendants.
In brief, the complaint alleged that plaintiffs were owners of residential property located in the town of Knox, Indiana, which was occupied by them as their home; that on it were certain shade and fruit trees, a vineyard, a lawn, and 100 fence posts; that defendants were owners of residential property adjacent to and south of plaintiffs' land; that on October 13, 1956, the ground was dry and parched and there was a strong south wind; that defendants lighted a fire in an open wire container and did not tend or watch it; that hot ashes and burning paper blew from the container igniting the grass on defendants' property; that the fire spread to property of the plaintiffs, burning and destroying the trees, vineyard, lawn and fence posts; that defendants knew, or should have known, that such could happen under the circumstances; that plaintiffs were damaged in the sum of $500 by reason of the negligence of the defendants.
An answer in general denial was filed to this complaint. The issues being thus joined, a trial was held before the court, evidence was submitted, and a finding was made in favor of appellees against appellant Chapman and his wife in the sum of $245 and costs. The Chapmans filed a motion for a new trial which was overruled and this appeal followed.
It is to be noted that appellant's wife did not join in the appeal.
The evidence from the record is to the effect that on October 13, 1956, at about 1:30 or 2:00 p. m., appellant's wife took some trash paper outside the house and placed it in an open wire burner or incinerator with a lid and set fire to it. She was standing beside the burner with a rake when her three-month-old baby started to cry in the house. She went inside to take care of the baby, leaving her ten-year-old daughter standing by. Upon looking out the window a few minutes later she saw that the grass was burning and that fire was spreading rapidly across the vacant lot toward the Barnett house. It was so out of control that she called the fire department. Neighbors were attempting to put it out. When it was finally extinguished some small shade and fruit trees, a grape vineyard and part of the lawn about the Barnett house had been destroyed. Also 80 or 90 fence posts were burned so as to make them unusable. The fire had done no damage to the Barnett residence.
When the plaintiffs rested their case, appellant, Raymond L. Chapman, moved for judgment an behalf of himself. The court deferred action on this motion until the close of all the evidence and then overruled it. In appellant's motion for a new trial, this ruling is one of the specifications of error. The other specifications relied upon are that the finding of the court is not sustained by sufficient evidence and is contrary to law. The sole assignment of error presented to this court is the overruling of appellant's motion for a new trial.
The only argument made by appellant is to the effect that the court should have entered judgment in his favor at the close of appellees' evidence. He questions the sufficiency of the evidence as to himself alone. We have seen that the trial court found against his wife, Margene A. Chapman, and himself in favor of appellees. Predicated upon the averments in the complaint, this means that the court found Margene A. Chapman and her husband guilty of negligence. Appellant contends there was no evidence whatsoever to show that he was negligent in allowing the trash fire to get out of control. Since his wife did not join in this appeal, we must take it for granted that there is no question about her liability for negligence. Appellant argues as a husband he is not liable for his wife's torts as a matter of law, there being no showing in the evidence that she was in his presence or subject to his control or acting under his direction as his agent at the time.
To this argument, appellees respond that the negligence involved herein pertains to the use of property by the owners in such a way that they could reasonably have foreseen injury to their neighbors' property. They base it upon the common-law maxim, 'sic utere tuo ut alienum non laedas,' or, use your own property as not to injure others. The contention is that the negligent use of their property resulting in injury makes both appellant and his wife liable because they are property owners. Appellees state in their brief:
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