George v. Odenthal

• Decision Date: 03 May 1929
• Docket Number: No. 5595.,5595.
• Citation: 225 N.W. 323,58 N.D. 209
• Parties: GEORGE v. ODENTHAL.
• Court: North Dakota Supreme Court

58 N.D. 209

225 N.W. 323

GEORGE

v.ODENTHAL.

No. 5595.

Supreme Court of North Dakota.

May 3, 1929.

Syllabus by the Court.

In an action tried to the court to recover damages caused by fire, it is held, for reasons stated in the opinion, that there was no prejudicial error by reason of the denial of the defendant's motion to require the plaintiff to elect whether he would rely upon the negligence of the defendant in setting the fire, or upon the negligence of the defendant in permitting the same to escape.

Record examined, and held, for reasons stated in the opinion, that the evidence is sufficient to sustain the judgment.

Sections 2797 and 2798, C. L. 1913, make him who starts a fire, however proper his purpose may be, and leaves it unextinguished, so that it escapes and spreads to any wood, marsh, or prairie, and thereafter does damage, absolutely liable for such damage. These sections impose a duty to extinguish any fire that may be made, and a failure to perform this duty constitutes negligence per se.

One who, when threshing, blows the straw on and near to his buildings, so that when the straw catches afire from a prairie fire, negligently permitted to escape by another, the buildings are burned, is not guilty of such negligence in thus placing the straw as to prevent a recovery on account of the loss of the buildings so burned.

In a case tried to the court without a jury, where evidence is erroneously received over objection, it will be presumed that such evidence was not considered by the court in making his findings and conclusions, unless it was so essential that the findings could not have been made without it, and the error will be held error without prejudice.

It is not error to permit the owner of movable buildings to testify as to the value of the same, though no foundation was laid for such testimony, except the fact of ownership.

Appeal from District Court, Dunn County; Thomas H. Pugh, Judge.

Action by Layton E. George against Oscar Odenthal. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Affirmed.Simpson & Mackoff, of Dickinson, for appellant.

Crawford, Cain & Burnett, of Dickinson, for respondent.

NUESSLE, J.

The plaintiff seeks to recover damages caused by fire. The record may be said to fairly establish the following facts:

In the spring of 1925 the defendant was farming the southeast quarter of section 9, township 147, range 97, in Dunn county, North Dakota. Section 16, immediately south of section 9, was prairie land. The northwest quarter of section 15, which cornered section 9 to the southeast, belonged to the plaintiff. This was partly tilled, and had on it several buildings, including some granaries and a log barn and some hay and straw stacks. The south portion of the defendant's quarter in section 9 was cultivated. In the spring of 1925 there were two old straw stacks or butts on this tract. One of them, which we will designate as stack B, was on the section line between sections 9 and 16, and the other, designated as stack A, was about 150 feet north of stack B. To the north of stack A the ground was plowed. To the east and west of stack A the land had been planted to flax in 1924, and the flax stubble had been disked, so that fire could not run over it. South of stack A, and between the two stacks, the prairie was unbroken. About 90 feet south of stack A, and 60 feet north of stack B, a prairie road or trail passed, running from east to west and circling around stack B. On the 7th of April, the defendant was engaged in farm work on this land. Stack A was in his way, and he wanted to get rid of it. The cattle had been running to it through the winter, and it was trampled down, so as to be not more than 3 or 4 feet high. So the defendant burned off the prairie land between stack A and the road to the south of it, a strip about 90 feet wide. He then set fire to stack A. He left the stack to burn up, and made no attempt to extinguish the fire. The next day, and on the 9th and 10th, he was engaged in his work in the vicinity of stack A, where he could see the stack at intervals. On the 10th he observed no signs of smoke, or anything to indicate that the fire continued to burn in the old butt.

At noon he went home, about two miles, to dinner. While he was home a violent northwest wind sprang up. Shortly thereafter he observed smoke and fire in the direction of the stacks, and he and various neighbors went at once to help fight the fire. It appears that this fire started in the vicinity of stack B and, driven southeasterly by the wind, swept along an ever-widening path over a portion of sections 15 and 16 and other lands beyond. The log barn, the granaries with their contents, and the hay and straw stacks on section 15, which belonged to the plaintiff, were burned, as well as the pasture, pasture fence, and certain timber belonging to him. The plaintiff and others, going back to the vicinity of stack B, found that this stack was burned, and that the prairie between stack B and the road was burned over. No one saw the fire start. There is no direct evidence as to whence it came. It appears that various riders were riding about the country at this time looking for stock, and the defendant argues that some of these must have passed along the road and dropped a match or cigarette, thus starting the fire. Plaintiff's contention however, is, and this is strongly borne out by the circumstances, that the fire in stack A had not died out, and that the violent wind blew sparks from it across the burned ground to the unburned prairie south of the road, whence the fire, thus kindled, spread first to stack B and then onward.

The plaintiff brought this action for damages, predicated upon the theory that it was caused by the defendant's negligence in setting the fire and permitting the same to escape. The defendant, resisting the action, denied all the allegations of the complaint, and in addition set up that, though the plaintiff was damaged by the fire the same was set by some person unknown, and, further, that the plaintiff was guilty of contributory negligence, which resulted in the damage sustained by him. The cause came to trial before the court without a jury. The court made findings of fact consistent with the plaintiff's theory, and held that the defendant was liable for the damage suffered by the plaintiff, and ordered judgment to that effect. Judgment was entered accordingly. Thereafter the defendant moved for a new trial, and, his motion being denied, perfected this appeal from the judgment and from the order denying his motion.

[1] The complaint is general. It sets forth that the defendant negligently started the fire, and permitted the same to spread to dry grass and stubble, and thus do the damage complained of. At the beginning of the trial, and before any testimony was taken, the defendant moved the court to require the plaintiff to elect whether he would rely upon the negligence of the defendant in starting the fire or upon his negligence in permitting it to escape. The court indicated his opinion that the action was for negligence in permitting the fire to escape, but said: “I think the better way would be to take the testimony, as long as the matter is before the court without a jury; then the matter can be segregated later on.” At the close of the trial the defendant renewed his motion. The plaintiff then stated that he was relying upon the fire statute, and the absolute liability imposed thereby, and submitted the case on that theory. The court then said: “I think you gentlemen can submit your contentions, and I will look over the evidence in connection with them. I don't know just what the legal status of this matter is, quite, so I think that will be the better way.” Under the circumstances there was no error in the court's disposition of the matter. The case was tried to the court. The defendant was apprised that the plaintiff predicated his case upon the statute and the liability arising from a violation thereof. We cannot see that the defendant suffered any prejudice on account of the course adopted.

[2] The defendant contends that, in any event, the evidence is not sufficient to sustain the judgment. He first insists that there is no evidence that the fire which damaged the plaintiff was started by the defendant, either from stack A or otherwise. Defendant's testimony was that he observed the remains of stack A on the morning of the 10th before the fire, and that there was no indication of fire there at that time. After the fire, and on the same day, he examined this stack butt,...