Edwards v. Massingill
| Decision Date | 09 January 1912 |
| Parties | EDWARDS v. MASSINGILL. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.
Action by C. W. Massingill against J. L. Edwards for setting out a fire and destroying a fence. From a judgment for plaintiff defendant appeals. Reversed and remanded.
The first count is for punitive damages. The other counts declare on simple negligence for communicating fire to certain property, some of which placed the negligence upon the defendant, and others upon the negligence of servants or employés of the defendant acting within the line and scope of their employment.
Jernigan was introduced as a witness for the defendant, and testified in effect that he had been a farmer for 50 years, and had had considerable experience with fences, both in the construction and moving thereof; that he had not seen the fence in question for a year or more, and that he had never seen the horse stalls to notice them; that the fence seemed to be old and rotten. Thereupon the counsel for defense asked the following question: "Based on your experience, and as a farmer, and the experience you have had, was this fence sufficient to turn cattle out of their farm--to keep cattle out?" The court sustained plaintiff's objection.
Charge 1, requested by appellee, is as follows: "I charge you gentlemen, that the defendant Edwards, in using fire upon the premises, was compelled at his peril to keep it there; and if the defendant or his servants, as alleged in the complaint were guilty of negligence, in either setting out the fire that destroyed Massingill's fence, or in negligently permitting it to spread to said fence so destroyed, then you will find for the plaintiff."
Leigh & Leigh and James M. Davison, for appellant.
G. W. L. Smith, for appellee.
The two separate suits brought in the justice of the peace court by appellee were by agreement consolidated and tried as one case on one complaint in the circuit court, where judgment was rendered against appellant, from which this appeal is prosecuted. The consolidated complaint filed in the circuit court contained five counts, and the case was tried on pleas of the general issue to each of the counts. The first count of the complaint claims punitive damages, and in this count it is alleged that defendant willfully set fire to and destroyed 572 panels of the plaintiff's rail fence. The evidence shows that the appellant was in possession of the property on which the fire was started, or "set out," and was engaged in running a turpentine business for the purpose of getting crude turpentine, and that the fire was set out in this turpentine orchard for the purpose of burning off the woods to prevent the turpentine orchard from being injured by subsequent fires, as was usual and customary in connection with the work in which appellant was engaged. The lease under which the turpentine operations were carried on was made to C. W. Edwards, a brother of the appellant, and the appellant seems to have taken over the business without a written transfer of the lease, but whether appellant was in possession and conducting the business in his own right as transferee of his brother, or by permission of his brother, makes no difference under the issues involved, as he was in the rightful possession and working the trees for turpentine purposes, and his right to conduct the operations on the land was not a matter of dispute on the trial. The fire thus started on the premises under control of appellant and of which he was in possession under a "turpentine lease" either as the transferee or by permission of his brother as the owner of the lease, spread to and burned over on the adjoining premises of appellee and destroyed some of his property, consisting of a part of his fence, stalls, etc. The appellant, it seems, intrusted the burning of the woods to his employés, and the evidence is in conflict as to whether the appellant, or his employés, were guilty, under the circumstances, of negligence, in the first instance, in setting the fire out; and, secondly, in not keeping the fire confined to appellant's premises, and in allowing it to spread to the adjoining land and burn and damage appellee's property.
There is, however, no evidence contained in the bill of exceptions tending to show that appellant willfully set fire to and burned the appellee's fence as alleged in the first count of the complaint. This count of the complaint is in trespass and there was no evidence to support it, or to authorize the submission of the recovery of punitive damages to the jury under its averments. The fact alone that appellant gave orders to set out the fire for legitimate and proper purposes on land under his...
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Cobb v. Twitchell
... ... attend it with reasonable prudence and ordinary care ... appropriate to the circumstances. Edwards v ... Massingill, 57 So. 400, 3 Ala. App. 406; Gibbon v ... Lamm, 111 S.E. 618, 183 N.C. 421; King v ... Norcross, 82 N.E. 17, 196 Mass. 373; ... ...
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... ... control to the negligence alleged in the complaint, on which ... appellant had taken issue. Edwards v. Massingill, 3 ... Ala.App. 406, 57 So. 400. The case should not be reversed on ... the oral instruction given, and to which exception was ... ...
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Putman v. White
...prudence, reasonable care, and caution in kindling the fire and in keeping it from spreading to the land of another. Edwards v. Massingill, 3 Ala.App. 406, 57 So. 400; McNally v. Colwell, 91 Mich. 527, 52 N.W. 70, Am.St.Rep. 494; Hanlon v. Ingram, 1 Iowa, 108; Hewey v. Nourse, 54 Me. 256; D......
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Central of Ga. Ry. Co. v. Griffin
...or taken in respect to controlling a fire is very generally a question of fact for the jury. Robinson v. Cowan, supra; Edwards v. Massingill, 3 Ala.App. 406, 57 So. 400. We do not agree with appellant's contention that if negligence was shown on appellant's part, that such negligence was no......