Francis v. Johnson

• Decision Date: 17 December 1904
• Parties: FRANCIS v. JOHNSON.
• Court: Iowa Supreme Court

127 Iowa 391

101 N.W. 878

FRANCIS

v.JOHNSON.

Supreme Court of Iowa.

Dec. 17, 1904.

Appeal from District Court, Dickinson County; W. B. Quarton, Judge.

Action to recover the value of buildings and furniture destroyed by fire alleged to have been negligently started by an employé of the defendant. There was a verdict for the plaintiff, and from judgment thereon the defendant appeals. Reversed.Cory & Mettler, for appellant.

Chas. L. Reigard and Francis & Owen, for appellee.

LADD, J.

On the 24th day of April, 1902, the plaintiff was owner of a lot at Hayward's Bay, a plat of ground so called, bordering Lake Okoboji, on which he had erected a house and barn. The lot next to it belonged to the defendant, and on this there were like improvements, the houses being but six or eight feet apart. On that day R. S. Miller, with a helper, began the removal of the old paint from defendant's house by the use of a blow torch. At about 2 o'clock in the afternoon the house took fire, and communicated to that of plaintiff and his barn, destroying both. The evidence was such as to sustain the finding of the jury that the fire was the result of the negligent use of the blow torch. Without reviewing the rulings of the court of the admissibility of evidence, it is enough to say that they were without error, save one, which was subsequently corrected. Nor had the defendant cause to complain of the instruction. The difficulty with the case is that the evidence was not such as to render the defendant liable as the employer of Miller. The latter was shown conclusively to have been an independent contractor, for whose negligent acts Johnson was in no way responsible. Miller testified, when called by plaintiff, that he had a conversation with defendant some time before the fire, in which the latter said he wished Miller would go out and paint the house, and that he promised to go as soon as he got time. When called by the defendant, he testified further that in August, 1901, while painting a new cottage for Johnson, the latter called him over to the house which subsequently burned, and said: “ ‘How much will it cost to paint the old cottage?’ I stepped around the old cottage, took the height of it, and went back, and said: ‘I will paint it for $30.’ He said, ‘All right,’ and that he would not have it painted this fall. ‘I can hardly afford it after building the new one, but you can paint it in the spring.’ Mr. Johnson did not know I was going out to paint it when I did. I did not let him know. * * * We talked over the color, and decided it should be as near the color of the new cottage as it could be. I said I would have to...