Kaufman v. Boston Dye House, Inc.

• Decision Date: 13 September 1932
• Citation: 182 N.E. 297,280 Mass. 161
• Parties: KAUFMAN v. BOSTON DYE HOUSE, Inc. KAUFMAN et al. v. SAME. GOLDEN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 161

182 N.E. 297

KAUFMAN

v.BOSTON DYE HOUSE, Inc.

KAUFMAN et al.

v.SAME.

GOLDEN

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 13, 1932.

Exceptions from Superior Court, Middlesex County; Charles H. Donahue, Judge.

Separate actions by Arthur M. Kaufman, by Arthur M. Kaufman and another and by Max Golden against the Boston Dye House, Inc. Verdicts for defendant. On plaintiffs exceptions.

Exceptions overruled.

F. W. Campbell, of Boston, for plaintiffs.

J. J. Kaplan, of Boston, for defendants.

RUGG, C. J.

These three actions of tort were tried together. They are brought to recover damages for injury to property of the plaintiffs by fire alleged to have been caused by the ignition on property not belonging to the defendant, by sparks or flames from a gasoline engine operated on property of a third person, of an inflammable petroleum product called varnolene discharged into Saugus Branch creek by the defendant. These actions were tried with other actions founded on negligence brought by the same plaintiffs against the operator of the gasoline engine, which are not now before us. The declaration in each of the cases at bar contained three counts, the first alleging that the defendant negligently permitted varnolene to escape into the creek, the second alleging that the defendant created a nuisance by allowing the escape of varnolene into the creek, and the third alleging that varnolene was an inherently dangerous substance which the defendant was bound at its peril to prevent from escaping. In each case the first and second counts were submitted to the jury and verdicts were returned for the defendant, and the trial judge directed a verdict for the defendant on the third count. Exception by the plaintiffs to that direction presents the question to be decided.

It is not necessary further to recite the allegations of the third count in the several declarations. The question is whether the evidence would support a finding on it in favor of the plaintiffs. That question is to be considered dissociated from negligence or nuisance due to the defendant, because those grounds of liability were covered by the other counts and it is to be presumed that those grounds of liability were submitted to the jury under full and accurate instructions.

There was evidence which, although sharply contradicted in some essential particulars, nevertheless, in its aspect most favorable to the plaintiffs would have supported findings that the plaintiffs owned or occupied as tenants property in Malden bordering on Saugus Branch creek; that the defendant carried on its business on adjacent property, in the rear of which although not contiguous thereto flowed the creek; that varnolene is an inflammable petroleum product widely used in the arts and industries, having a flashing point of one hundred and eight degrees Fahrenheit (flashing point meaning that if ‘heated to that point it will vaporize and that if there is a spark nearby that has a little fire in it and if there are other conditions that are equal you are apt to have a flame, a fire’); that varnolene was used by the defendant in its business of cleansing garments and household goods; that, although great care was taken to reclaim as much as possible of varnolene for reuse and there was no leak in the pipes, some was spilled in taking clothes from the washer, and prior to the fire quantities of varnolene passed through a drain maintained by the defendant, usually kept plugged but open about twice a week, to a catch basin in the defendant's yard and thence from its premises through a pipe leading to the creek several hundred feet east of the street on which the real estate occupied by the plaintiffs was located and in the rear of buildings owned or occupied by the plaintiffs; that this passing of varnolene was in violation of a prohibitory regulation of the department of public safety; that the natural flow of the creek from this drain was westerly by and under said buildings; that about five o'clock in the afternoon of January 5, 1928, when the temperature was below the freezing point of water, this petroleum product became ignited by sparks from a gasoline engine operated about ten feet from the creek by Coleman Bros. Inc.; that corporation was building a new channel for the creek, upon land taken by the city of Malden for that purpose, by virtue of a contract with the city of Malden and was and had been for several days prior to the fire operating the gasoline engine in connection with that work in order to pump water from a well dug near the creek (into which drains emptied) into the creek through a trough extending part way, and that the fire, having thus originated, spread over the surface of the creek to buildings occupied or owned by the plaintiffs and caused them damage. There is no evidence and no contention that Coleman Bros. Co., Inc., was operating upon land of the defendant, or under its authority or direction, or by virtue of any relation with it. There was testimony from an expert called by the plaintiffs to the effect that, in the conditions stated as prevailing on the creek, including temperature at the time of the fire, it was not likely that a fire would be caused by sparks from the gasoline engine or by red hot iron, but that, if a large enough piece of wood or missile in flames were thrown into the creek, vaporization of the petroleum product would be very apt to follow and a flame might ensue. Apparently, the way in which the ignition came from the gasoline engine was by sparks from its exhaust. The only evidence on this point in the record is that the gasoline engine was ‘skipping’ or ‘backfiring’ at the time of the fire and had been doing so previously for several days, and that a flare eight inches long came from the exhaust pipe. There is in the record no other evidence as to how the varnolene on the creek could have been vaporized on the day in question and set on fire. There is no evidence as to the exact location of the gasoline engine, but presumably it was on land of the city. It does not appear to have been upon land of the plaintiffs.

The verdicts of the jury in favor of the defendant on counts one and two of the declarations established as a fact that ignition of varnolene in the creek, if and so far as causing damage to property of the plaintiffs, was not due to the negligence of the defendant or to the creation of nuisance by the defendant. Negligence and nuisance, therefore, are eliminated as a basis of liability. The cases at bar are quite distinguishable from cases like Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 87 N. E. 567;Ogden v. Aspinwall, 220 Mass. 100, 103,104 N. E. 448;Leahy v. Standard Oil Co. of New York, 224 Mass. 352, 361-363, 112 N. E. 950, and Perlman v. Burrows, 270 Mass. 182, 184, 169 N. E. 897, where, when culpability by negligence on the part of the defendant has been found to exist, it was held to be immaterial whether the harmful result was the natural and probable consequence of the culpable conduct. They are also distinguishable from cases like Flynn v. Butler, 189 Mass. 377, 386, 387, 75 N. E. 730;Jones v. Town of Great Barrington, 273 Mass. 483, 488, 174 N. E. 118; Midwood & Co. Ltd., v. Manchester Corporation, [1905] 2 K. B. 597, and Charing Cross Electricity Supply Co. v. Hydraulic Power Co., [1914] 3 K. B. 772, where liability of the defendant was established on the ground of nuisance.

The plaintiffs contend that liability of the defendant to them rests or may be found to rest upon the facts that the defendant brought quantities of varnolene upon its premises and permitted it to escape, that it vaporized and ignited, and that damage by fire to their property ensued as a consequence. They make this contention even though the defendant was not negligent and created no nuisance with respect to the varnolene. The situation, then, is this: The defendant was using a lawful though highly inflammable substance in conducting a lawful business; some of that substance escaped from the premises of the defendant, without negligence and without creating a nuisance, found its way to the surface of the creek, there became ignited by the gasoline engine of Coleman Bros., Inc., operated for an independent purpose on land of a third person, fire spread over the surface of the creek and thereby property of the plaintiffs was damaged.

The plaintiffs base their contention on the rule formulated by Blackburn, J., in Fletcher v. Rylands, L. R. 1. Ex. 265, 279, and expressly affirmed in Rylands v. Fletcher, L. R. 3 H. L. 330, 339-340. That rule is that ‘the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’ Another more recent statement of the rule by the English courts is in Rainham Chemical Works, Ltd., v. Belvedere Fish Guano Co., Ltd., [1921] 2 A. C. 465, 471, in these words: ‘even apart from negligence the use of land by one person in an exceptional manner that causes damages to another, and not necessarily an adjacent owner, is actionable.’ There have been limitations upon the wide sweep of this principle even in English decisions. Wilson v. Newberry, L. R. 7 Q. B. 31; Ross v. Feddon, L. R. 7 Q. B. 661; Nichols v. Marsland, L. R. 10 Ex. 255; S. C. 2 Ex. Div. 1; Box v. Jubb, 4 Ex. D. 76; Baker v. Snell, [1908] 2 K. B. 825; Rickards v. Lothian, [1913] A. C. 263, 275-282; Noble v. Harrison, [1926] 2 K. B. 332, overruling Gill v. Edouin, 71 L. T. Rep. 762; Phillips v. Britannia Hygienic Laundry Co., Ltd., [1923] 1 K. B. 539, affirmed in [1923] 2 K. B. 832; ...