Hodges v. Baltimore Engine Co.
| Decision Date | 22 June 1915 |
| Docket Number | 15. |
| Citation | 94 A. 1040,126 Md. 307 |
| Parties | HODGES v. BALTIMORE ENGINE CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Prince George's County; Fillmore Beall and B. Harris Camalier, Judges.
Action by Mary Ann Hodges against the Baltimore Engine Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Eugene P. Childs, of Annapolis, and M. Hampton Magruder, of Upper Marlboro, for appellant. E. Oliver Grimes, Jr., of Westminster, and S. Marvin Peach, of Upper Marlboro, for appellee.
In the case before us the appellant brought suit against the appellee to recover damages for injury to and destruction of her growing timber and other property by fire, caused by the defendant's alleged negligence in the operation of an engine. The case was tried before a jury in the circuit court for Prince George's county, and, at the conclusion of all the testimony, the court directed a verdict for the defendant because of a want of legally sufficient evidence entitling the plaintiff to recover.
The evidence disclosed that the plaintiff, through her son Ramsey Hodges, on the 29th day of July, 1912, entered into a written contract with one William T. Robinson by which he agreed to buy and saw or cut all the timber (not including cordwood), consisting of oak, pine, etc., on the lands therein described, situated in Anne Arundel county, Md. He was to pay for the white and chestnut oak $4, and for the pine and other timber $2.50, per 1,000 feet, to be paid for each week as it was cut, and none was to be removed from the lands upon which it was located until it was paid for. By the terms of the contract he was given two years and six months in which to cut and remove such timber. The contract also provided for a forfeit of $150 to be paid in the event of his failure to cut all of said timber.
In the latter part of August or the first of September following Robinson moved his mill upon said lands and proceeded to cut and dispose of the timber under the provisions of the contract. His progress was slow, and, as the timber was to be paid for only as it was converted into lumber, the payments to the plaintiff were not sufficient to meet her demands, and the son, in the early part of January, 1913, called upon him to know if he could not advance her $250 in anticipation of what was coming to her from the sale of the timber. Mr Robinson told him that he could not himself advance the money, but thought he might be able to "fix it so he could get it." A few days after this conversation, Mr. Roup, treasurer of the defendant company, who had been asked by Mr. Robinson to furnish the aforesaid sum of money, and one Mr. White, an experienced timber man, who had been asked by Mr. Roup to accompany him, went upon the lands with Mr. Robinson and Mr. Hodges to ascertain the amount of lumber cut, as well as the amount that could thereafter be cut, from the timber standing thereon, with the view of determining whether he was safe in advancing the aforesaid sum of money for Mrs. Hodges.
Mr. Hodges in his testimony says that at the conclusion of the investigation Mr. Roup said:
And that Mr. Robinson would be their representative and would attend to the work for them. Thereafter, on the 6th day of January, 1913, Mr. Roup, as treasurer of the defendant company, entered into a written agreement with Mr. Hodges, by which Hodges sold to him from the aforesaid lands:
The mortgagee of said lands, through his attorney, assented to the provisions of the contract and agreed that the money for said timber should be paid to Mr. Hodges under the contract.
Mr. Hodges further stated in his testimony that he was told by Mr. Robinson, after the execution of the contract with the defendant company, that said company was to pay all the expenses in the sawing and cutting of said timber, "and what was over after allowing him personally $10 per week, they kept that to pay notes or whatever was due coming on the engine" that Robinson had bought from A. Faulkner Company of York, Pa., who were represented in Baltimore by the defendant company, and the purchase price of which he had not fully paid. It was also stated by Mr. Hodges, in his testimony: That he was asked by Mr. Roup, after the execution of the contract with the Baltimore Engine Company, to "see that the teams had grain," which he did, and, as directed by Mr. Roup, the bills therefor were submitted to Mr. Robinson for his O. K., and, when approved by him, these bills were sent to the Baltimore Engine Company and were paid by it. That it was not until about 10 days after the fire that he was notified that the Baltimore Engine Company had ceased to operate the mill and to assume the aforesaid liabilities, at which time Mr. Robinson came to him and said that the Baltimore Engine Company "has declined now to go any further in the matter, and I will cut and pay you as I cut it or give you an order before I ship it," and this he did for a while thereafter.
In the record are found two letters from Roup, treasurer of the defendant company, to Hodges, one dated May 8, 1913, six days after the fire, and the other dated June 20, 1914, about six months after the institution of this suit. Inclosed with the first of these letters was a statement showing that to May 1, 1913, there had been shipped or delivered during the months of February, March, and April, under the aforesaid contract between it and Hodges, lumber amounting only to $200.88 at the prices to be paid therefor by the defendant company to Hodges, which had been credited upon the amount ($250) advanced to him, leaving owing thereon the sum of $49.12. If, at such time, he had sawed the requisite quantity of timber to repay him for the money so advanced, and had ceased sawing under the contract, no mention of this fact is made in the letter. The letter of June 20th also contained a statement showing other deliveries of lumber, two of which were on May 3, 1913, and the others on days prior to the last delivery in the preceding statement but not included therein. By this statement it is shown that the entire sum of $250 had at such time been paid by credits of lumber as aforesaid, and that there was in the hands of the company, after allowing such credits, the sum of $5.75 belonging to Mrs. Hodges for timber cut and sold from the aforesaid lands, for which amount a check was sent to Mr. Hodges, dated June 22, 1914. The letter of June 20, 1914, was brief, merely stating:
"We inclose you statement of deliveries of lumber which we have just received a copy from attorneys."
This evidence was, we think, legally sufficient to go to the jury as tending to show that at the time of the fire, which resulted in the injury complained of, the defendant company was operating said engine and mill. As to how the fire originated and the alleged negligence in the operation of the engine, we have the evidence of Hodges, in which he states that the smokestack of the engine had no cover on it; that he was present at the mill on many occasions when it was running, and at such times had seen many sparks emitted from the smokestack of the engine, and at times had seen fires around about the mill that were caused by such flying sparks and he had called Rr. Robinson's attention to it, and Robinson had said in reply thereto, "If you put anything on the smokestack, the engine would not draw or would not gather steam;" that on one occassion, a very windy day, after the woods back of his house had caught fire from sparks from the engine, as he stated, and after such fire was extinguished with much difficulty, he gave to Mr. White, the representative of the defendant company, who was at the time upon the premises, a communication to Mr. Roup, to be delivered to him, in which he complained of the manner in which the engine was operated in respect to the...
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