Jefferson Lumber Co. v. Berry

• Citation: 247 Ala. 164,23 So.2d 7
• Decision Date: 26 July 1945
• Docket Number: 6 Div. 293.
• Parties: JEFFERSON LUMBER CO. v. BERRY.
• Court: Supreme Court of Alabama

23 So.2d 7

247 Ala. 164

JEFFERSON LUMBER CO. v. BERRY.

6 Div. 293.

Supreme Court of Alabama

July 26, 1945

J. T. Johnson, of Oneonta, for appellant.

M. F Lusk, of Guntersville, for appellee.

Count one of the complaint is as follows:

'Plaintiff claims of the defendant the sum of One Thousand Dollars ($1000.00) damages for this that on or about August 25, 1943 plaintiff owned about 40 Acres of farm land and woodland on which was growing valuable timber, all in Blount County Alabama, and on or about said date defendant by its agents or employees while acting in the line and scope of their employment negligently set fire to a tree in said County on adjacent to, or near plaintiff's said lands and negligently allowed said fire to spread through the woods and brush near said tree and near plaintiff's said lands, and as a proximate result of such negligence, the fire was communicated to plaintiff's said lands, and burned and destroyed said timber and the forest mold beneath said timber, impairing the fertility of the soil and making it subject to

erosion, to plaintiff's damage as aforesaid.'

Charges given at the request of plaintiff, made the basis of assignments of error 28, 29 and 30, are as follows:

'8. Gentlemen of the jury, I charge you that if defendant was negligent in setting the fire, it is not relieved from liability by the fact that it exercised ordinary diligence in trying to prevent its spread.

'9. Gentlemen of the Jury, it is not important whether the defendant's negligence consisted in the time, or the manner, of starting the fire, or the means used to prevent its spread; if because of the defendant's negligence the fire was communicated to plaintiff's property, causing plaintiff damage, then plaintiff is entitled to recover.

'10. Gentlemen of the Jury, I charge you that one who sets a fire upon land which he owns or has in charge, even for a lawful purpose, is liable for the damages caused by the spread of the fire to the property or premises of another, if he has been guilty of negligence either in kindling the fire or in preventing its spread. The duty rests upon him to use ordinary or reasonable care in setting the fire and in keeping it under control, and this care must be in keeping with the danger reasonably to be anticipated, and is dependent upon the circumstances of each particular case. The fire should be kindled at a proper time, under ordinarily favorable circumstances, and in a reasonably prudent manner. A person or corporation is not at liberty to kindle fires, when on account of the conditions existing in the vicinity, it appears probable that damage to others will result, such as setting it in a dry season, or when the wind is strong or without guarding it sufficiently to prevent its spreading.'

Plaintiff's given charge made the basis of assignment 25 is as follows:

'3. Gentlemen of the Jury: If from all the evidence you are reasonably satisfied the plaintiff is entitled to recover because of the matters alleged in his complaint, and that the timber or other growth described in his complaint was destroyed and that it had a definite value apart from the soil in which it grew, and if you further find that the land described was also damaged, you should award plaintiff damages both for the destruction of the growing things and also for the difference between the value of the land before the injury and its value after the injury.'

LIVINGSTON Justice.

The case went to the jury on count one of the complaint, which states a cause of action for negligence resulting in injury. It is not an action of trespass. In substance, count one charges that defendant's agents or employees, while acting in the line and scope of their employment, negligently set fire to a tree on, adjacent to, or near plaintiff's land, and negligently allowed said fire to spread to plaintiff's lands destroying his timber, and the forest mold beneath said timber, impairing the fertility of the soil and making it subject to erosion.

Defendant in the court below (appellant here) interposed two pleas: (1) 'The defendant avers that the defendant is not guilty of the matters and things therein averred.' (2) 'That the plaintiff is not the owner of the land described in said count, and was not the owner thereof at the time of bringing the suit in this case.' Demurrers to pleas 1 and 2 were overruled. The jury returned a verdict for the plaintiff in the sum of $517.50, and defendant appealed.

The evidence showed the following: The defendant at the time complained of was operating a sawmill in the community in which plaintiff's land was located. The season was very dry, and the grass, leaves, brush and woods were very dry. Some of defendant's employees were engaged in cutting logs in the woods, while others were engaged in operating the sawmill manufacturing the logs into lumber. At about nine o'clock in the morning of August 25, 1943 defendant's foreman, one R. D. Frazier, and other employees of defendant, felled a large tree which hit the ground about three feet from a nest of bumble-bees. One of defendant's employees was stung by the bees which swarmed out of the nest in such numbers as to interfere with the work of sawing the tree into logs. Defendant's foreman, Frazier, sprinkled fuel oil, or as described by some witnesses motor oil, on the grass, straw and leaves around or near the bees' nest and set fire to it. The fire grew to considerable size and spread along and around the top of the felled tree, some thirty-five to fifty feet from the bees' nest. Frazier and other employees of defendant beat with pine tops and stamped the fire to put it out. They also cleaned a space of approximately twelve feet in diameter around the bees' nest of all inflammable material, but this was done after the fire was kindled. They did not clean around the tree top. Frazier left the place of the fire about ten-thirty A. M. and went back to the sawmill, instructing other employees to watch the fire and to see that it was out before they left the woods. All of the employees left the woods about twelve o'clock noon, and went to the sawmill for lunch. They informed Frazier that the fire was out. They testified that they saw no further fire or sign of fire up to the time they left the woods for lunch. When they returned to the woods from lunch a forest fire was burning on approximately a hundred and fifty yard front, just north of the bees' nest. There was no unburned area between the bees' nest and the fire found burning after the lunch hour. Plaintiff's land was located about one-half mile distant from the bees' nest. On the day of the fire defendant's employees at the mill and in the woods numbered seventeen. Seven men worked at the mill in the afternoon and the others fought the fire until about five o'clock in the afternoon. Mr. Frazier, the foreman, helped fight the fire for a while...