Cole v. Back
| Decision Date | 24 October 1947 |
| Citation | 305 Ky. 668,205 S.W.2d 303 |
| Parties | COLE et al. v. BACK. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Breathitt County; W. R. Prater, Judge.
Action by Tessie Back against Bernie Cole and another to recover the value of a building destroyed by fire. Judgment for plaintiff, and defendants appeal.
Reversed.
Reid Prewitt and F. C. Bryan, both of Mt. Sterling for appellants.
G. C Allen and Kash C. Williams, both of Jackson, for appellee.
The question presented is whether or not the vendor, who retained possession after the execution, delivery, and acceptance of a deed, must suffer loss by reason of fire which occurred between the time of the execution of the deed and the delivery of possession.
On October 15, 1945, appellants, Bernie Cole, and Violet Cole his wife, executed and delivered to appellee, Tessie Back, a deed for some 65 acres of land with certain buildings thereon including a residence. Nothing is said in the deed concerning the passing of possession but the testimony discloses that an oral agreement was made between the parties whereby appellants retained possession of the premises until March 1 1946.
Appellee and her father testified that they agreed for appellants to retain possession until the date above, but stated that appellants agreed to deliver the property in as good condition as it was on the day the deed was executed. Appellants denied this agreement but stated they were to retain possession because of the fact they had purchased another place in Montgomery County and could not obtain possession until that date, and were to retain possession of the property until then.
It is further established that appellants and appellee had lived in Ohio for three years or more, and appellants had not been back to this property which had been sold for something over one year but had left their furniture in the building. No one lived in the house as a tenant. However, Mace Burton, father of appellant, Violet Cole, had some of his clothing, bed clothes, and other personal belongings at the residence, and had for over three years been accustomed to stop at the residence from time to time and spend the night or change his clothes. On the morning of February 12, 1946, about 9 o'clock in the morning, Mace Burton and Benjamin Pugh, who lived in the neighborhood, entered the residence in controversy. After building a fire in the grate in the front room, the chimney to which also served a grate in an adjoining room, they sat by the fire and talked for approximately an hour. It appears that Benjamin Pugh was awaiting the return of his children from a nearby store, and upon their return Pugh left with the children. Immediately after this, Mace Burton heard a roaring sound, and when he opened the door to the adjoining room he found it to be on fire. He called Benjamin Pugh back to help fight the fire but the residence and its contents were completely destroyed.
Appellee filed suit in lower court seeking to recover from the appellants the value of the building burned, alleging that it was burned through the negligence of appellants, their representative and agent. Upon trial appellee recovered the sum of $1000. From this verdict and judgment appellants appeal.
Both at the conclusion of evidence for plaintiff below, and of all the evidence, motions were entered for a peremptory instruction on the ground that the proof did not show any negligence on the part of appellants, and second, it did not show any negligence on the part of Mace Burton, or even if there was negligence on the part of Mace Burton, there was no agency relationship between Mace Burton and appellants.
Appellants urge as a principal ground for reversal the alleged error of the lower court in overruling appellants' motion for a directed verdict at the close of appellee's testimony. They base this contention upon, first, the appellee failed entirely to produce sufficient evidence to substantiate either the allegation of negligence on the part of appellants, or Mace Burton, and second, they utterly failed to establish any agency relationship between appellants and Mace Burton. Certainly there are no personal acts of negligence on the part of appellants individually as they had been absent and away from the house for more than a year.
Appellee alleged that it was the negligence of appellants' representative or agent, and if there was any negligence established it was the negligence of Mace Burton.
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