Fuller v. Hessler, 107.

• Decision Date: 05 March 1924
• Docket Number: No. 107.,107.
• Parties: FULLER v. HESSLER.
• Court: Michigan Supreme Court

226 Mich. 311

197 N.W. 524

FULLER

v.HESSLER.

No. 107.

Supreme Court of Michigan.

March 5, 1924.

Error to Circuit Court, Wayne County; Jos. Barton, Judge.

Action by Thomas A. Fuller, administrator of the estate of Stephania Kubin, deceased, against Benjamin Hessler. Judgment for plaintiff, and defendant brings error. Reversed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. McClear, Stein & Sarbaugh, of Detroit (Routier & Nichols, of Detroit, of counsel), for appellant.

Harry C. Milligan, of Detroit, for appellee.

WIEST, J.

Defendant operated a store out Michigan avenue in the city of Detroit. December 19, 1920, about 2:30 o'clock in the afternoon, one of his clerks took some waste paper to a nearby vacant lot, set fire to it, watched it burn down, and went back to the store. About half an hour later some boys came along, and, it is claimed, found some embers, gathered up other waste paper lying on the lot and placed the same on the embers, causing the added material to flame up. Stephania Kubin, a girl nearly five years of age, came up to such new fire, and, while warming her hands, the wind blew a burning paper against her, setting her clothing afire, causing her death.

This suit was brought by the administrator of her estate against the storekeeper, on the ground that the negligence of his clerk in leaving embers was the proximate cause of the accident.

By writ of error defendant reviews verdict and judgment against him. By appropriate motion at the trial defendant saved the point as to his liability.

Under the undisputed evidence the intervention of the act of the boys between the act of defendant's clerk and the accident was the occasion of the flames which set fire to the clothing of the girl. The clerk burned the papers on private property, but at a place frequence by children. This however, did not constitute the lot a public place within an ordinance of the city of Detroit forbidding any fire to be made in any street, alley, or public place within the city. We apprehend the owner of the lot would be somewhat surprised if told that his private property is a public place, to be classed along with streets and alleys. This removes from the case the question of defendant's creating a nuisance in a public place.

At 2:30 in the afternoon the clerk set fire to about two bushels of waste paper. An hour later the little girl was burned. About half an hour before the girl was burned some boys either set a new fire or started a fire by placing papers on the embers of the old one.

We consider the case on the theory that defendant's clerk left embers and the boys added materials and made a fire in that manner.

Plaintiff relies upon the holdings in Davenport v. McClellan, 88 N. J. Law, 653, 96 Atl. 921, and Jaworski v. Detroit Edison Co., 210 Mich. 317, 178 N. W. 71. In the Davenport Case defendant, for the purpose of burning leaves, built a fire in a public street, and went away leaving it burning. A little...