Franke v. Head

• Decision Date: 14 October 1897
• Citation: 42 S.W. 913
• Parties: FRANKE v. HEAD et al.
• Court: Kentucky Court of Appeals

42 S.W. 913

FRANKE v. HEAD et al.

Court of Appeals of Kentucky.

October 14, 1897

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by E. C. Franke against C. L. Head and others to recover damages for loss by fire. Judgment for defendants upon verdict returned in obedience to a peremptory instruction and plaintiff appeals. Affirmed.

Mat O'Doherty, for appellant.

Dodd &amp Dodd, for appellees.

WHITE J.

Appellant instituted this action in the Jefferson circuit court against appellees, claiming that on the 4th day of March, 1892, while appellees were in the possession of and occupying a certain house in Sebree, Ky. and used as a tobacco factory, said house was, by and through the negligence of appellees, their agents and servants, destroyed by fire, causing a loss to appellant of $14,000, for which he asked judgment. To this petition an answer was filed in several paragraphs, but, for the purpose of disposing of the case as now presented, only one applies. In that the tenancy or rental by one of the appellees is admitted, and the burning of the building is admitted, but that the fire or burning was caused by the negligence of appellees or their servants is denied; but it is said the fire was by unavoidable casualty. An amended petition was filed, which undertook to specifically allege the acts constituting the negligence complained of, and that amended petition can best be stated by an extract as follows "*** states that the building in the petition mentioned and leased by him to the defendants, as therein set out, was at the date of said lease, and when defendants took possession thereunder of said leased premises, well equipped with a steam force pump and iron pipes leading therefrom to the roof of said building, with connecting cross pipes on each story of said building, and which said pump and pipes were connected with an unfailing supply of water, and by means of said pump and pipes, all of which were at the time in good condition, an abundant supply of water could at any time be conveyed to the roof or any other portion of said building; and plaintiff provided and had upon the roof of said building a large tub or tank into which said pipe emptied, and had also provided and in said building a large number of water buckets; and said appliances were provided by this plaintiff for said building at great cost and outlay for the purpose of minimizing the danger thereto from fire, and for the prevention and suppression thereof,-all of which was well known to the defendants when they leased...