Conecuh Naval Stores Co. v. Castillow

• Decision Date: 19 April 1923
• Docket Number: 1 Div. 271.
• Citation: 209 Ala. 271,96 So. 142
• Parties: CONECUH NAVAL STORES CO. v. CASTILLOW.
• Court: Alabama Supreme Court

96 So. 142

209 Ala. 271

CONECUH NAVAL STORES CO. v. CASTILLOW.

1 Div. 271.

Supreme Court of Alabama

April 19, 1923

Appeal from Circuit Court, Monroe County; J. D. Ratliffe, Judge.

Action by George W. Castillow against the Conecuh Naval Stores Company. Transferred from Court of Appeals under section 6 p. 449, Acts 1911. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnett Bugg & Lee, of Monroeville, for appellant.

Hybart & Hare, of Monroeville, for appellee.

McCLELLAN J.

This suit was commenced by appellee in a justice's court, and sought the recovery of $14 damages for the negligent burning of boards stacked on plaintiff's lands. Robinson v Cowan, 158 Ala. 602, 47 So. 1018. On appeal to the circuit court plaintiff was awarded judgment for $10. From that judgment appeal was taken to the Court of Appeals, and now the cause has been transferred to this court. Only four of the five errors assigned are insisted upon in the brief for appellant.

The court sustained demurrer to defendant's special plea 2, a plea whereby defendant sought to preclude plaintiff's right to recover because of his contributory negligence in stacking, on plaintiff's own lands, the boards in inflammable grass, in woods where conflagration might occur. The plea was demurrable; particularly on grounds taking the objection that an adjoining or an adjacent proprietor of lands owes no duty to anticipate that another will negligently set out fire or will negligently omit to guard against a fire's communication to adjacent or adjoining lands. L. & N. R. R. Co. v. Malone, 116 Ala. 600, 605, 606, 22 So. 897; Sou. Ry. Co. v. Darwin, 156 Ala. 311, 317, 318, 47 So. 314, 130 Am. St. Rep. 94; Sher. & Red. on Neg. (5th Ed.) § 679. The plea does not aver that the boards were so stacked on plaintiff's premises after this fire was set out or after defendant's asserted negligence had intervened to the menace of plaintiff's property. Non constat, the boards were so stacked before the fire in question originated. The doctrine of Lilley v. Fletcher, 81 Ala. 234, 1 So. 273, is not invoked by this plea. There the plaintiff was advised by the circumstances of the wrong against which duty thereupon arose requiring him or his representative to take precaution; as was noted in the discriminative statement of its doctrine made in Sullivan v. L. & N. R. R. Co., 163 Ala. 125, 131, 50 So. 941.

Plaintiff's witness Will Bass testified that he...