Knight v. Towles

• Decision Date: 13 April 1895
• Citation: 62 N.W. 964,6 S.D. 575
• Parties: KNIGHT v. TOWLES.
• Court: South Dakota Supreme Court

62 N.W. 964

6 S.D. 575

KNIGHT v. TOWLES.

Supreme Court of South Dakota

April 13, 1895

Syllabus by the Court.

1. When, in an action to recover damages caused by a fire set in violation of the provisions of section 2392, Comp. Laws against one who, it is claimed, caused the fire to be set evidence is given tending to prove that such person, as principal, directed his employé, by whom it is claimed the fire was actually set, to make a "fire break" around a certain tree claim under the control of such principal, and to "burn it off," the case should have been submitted to the jury.

2. When, in such action, there is evidence on the part of the plaintiff tending to prove that an employé who, it is claimed, set the fire, was directed by his principal to make a fire break around a tree claim under the control of the principal, the question as to whether or not the employé setting the fire was acting within the scope of his authority should have been submitted to the jury.

Appeal from circuit court, Lake county; Frank R. Aikens, Judge.

Action by Edwin A. Knight against Jacob G. Towles to recover damages caused by fire set, in the month of September, in violation of Comp. Laws, § 2392. Defendant had judgment, and plaintiff appeals. Reversed.

F. L Soper, for appellant. Murray & Porter, for respondent.

CORSON P. J.

At the close of the plaintiff's evidence the court, on motion of defendant's counsel, directed a verdict for the defendant. The granting of this motion is assigned as error and is the only error assigned that we deem it necessary to consider on this appeal.

The motion to direct a verdict was made upon the ground "that the plaintiff had failed to make out a cause of action against the defendant." In directing the verdict the court gave its views of the law of the case at some length, and, among other things, instructed them as follows: "The court understands the law to be this: That where a statute prohibits the doing of a certain act by any person, that no person can be held liable for the acts of his servant in doing that act, unless he expressly authorizes the act. *** That is the principle in this case,--that Mr. Towles, the defendant, could not have set the fire to the prairie lawfully himself, and, in order to hold him responsible for his son's doing it, there must be an express authority by the father to the son to set the fire under those circumstances which this fire was set. *** There is no evidence in this case that Mr. Towles directed his boy to go out and set fire to that prairie. The only evidence, as I remember it, is that he told him to go and make a secure fire break upon that tree claim. If it could not be done,--if it was impossible to do it,--it was the duty of the son to return to his father and tell him so. If he acted on his own responsibility in setting the fire out, he is liable himself, and *** you cannot hold the father, any more than you could any other individual, for the acts of his servants. Therefore I sustain the motion of the defendant to direct a verdict in this case."

The material part of the section of the statute upon which this action is based reads as follows: "2392. If any person or persons shall set or cause to be set on fire any woods, marsh or prairie, or any grass or stubble lands in the months of September, *** except as hereinafter provided, such person or persons shall be deemed guilty of a misdemeanor, *** and shall also be liable in a civil action to any person or persons damaged by such fire to the amount of such damages." There are other sections of the statute providing for certain exceptional cases, but none of them, in our opinion, affect the case at bar. Sections 2393, 2394, provide for a case when one is about to commence to break or plow his land; sections 2395-2397 provide for burning off marsh, prairie grass, or stubble land, for the destruction of grasshoppers; and section 2398 provides for willfully, negligently, and carelessly setting fire, or leaving a camp fire not thoroughly extinguished.

It appears from the evidence adduced on the trial on the part of the plaintiff, that the defendant, who is a physician, lived on a farm two or more miles from the village of Oldham, where he practiced his profession. The defendant owned, or had under his control, a tree claim, on which were about five acres of trees, situated a mile or more from his farm. He had sons,--among them, Ervine, a minor, who lived with the family on the farm. On September 19, 1891, the defendant's son Ervine, it is claimed, set a fire in the vicinity of this tree claim that spread, and destroyed property belonging to the plaintiff. The evidence as to the instructions or directions given to Ervine by the defendant in regard to the tree claim was substantially as follows: Mr. Madill, who was a sufferer from the fire, testified that he called on the defendant the morning after the fire, and that after some preliminary conversation, in which he stated to the defendant his loss by the fire, the defendant said "that he told the boy to go and make a fire break, and secure it, and to be very careful that the fire did not get away from him." Mrs. Knight testified that she was at defendant's house the evening before the fire, and that she heard the defendant tell his son Ervine "to put out a fire break on that tree claim, and make things safe there, as soon as convenient," or words to that effect, and that "he told him to burn a fire break off." It is true, on cross-examination, Mrs. Knight qualified or modified her last statement somewhat, by stating that defendant "told him to plow a fire break, and burn it off." But, in the view we take of the case, this change in the testimony is not very material. It will thus be seen that there was evidence that the defendant directed the son "to burn off" the fire break,--sufficient to go to the jury, at least. There was also evidence as to the authority of the son, and as to the extent of that authority, in securing the tree claim against fire by a fire break, sufficient to go to the jury. These were questions peculiarly appropriate for the jury, as the evidence was such that different minds might reasonably draw different conclusions therefrom; and when such is the case, though the evidence be undisputed, the case should go to the jury. Railroad Co. v. Stout, 17 Wall. 657. It was clearly error, therefor, not to submit these questions to the jury.

But the learned counsel...