Knowlton v. New York & N.E.R. Co.
| Citation | 18 N.E. 580,147 Mass. 606 |
| Parties | KNOWLTON v. NEW YORK & N.E.R. CO. |
| Decision Date | 27 November 1888 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Kent & Dewey, for plaintiff.
F.P Goulding, for defendant.
At first sight of the bill of exceptions, the facts in this case appear to be rather involved, but those which we have found to be material to the decision are simple. The original plaintiff, William Knowlton, was the owner of two lots of woodland, lying separate from each other; one of which was called the "Taft and Chase Lot," and the other the "Southwick Lot." On the 5th of May, 1881 a fire, communicated from a locomotive engine of the defendant, caught upon the Taft and Chase lot, adjoining the railroad, and spread over the intervening space about half a mile, to the Southwick lot, doing damage to both lots. For this damage, and also for another cause of action, now immaterial, Knowlton brought an action against the defendant on the 24th of October, 1882. The first count after describing the two lots of land, set forth that "the defendant's locomotive engine, in the defendant's use and operation, communicated fire to the plaintiff's said land, and burned over and destroyed the timber, wood, and other growth thereon, being to the extent of about thirty acres of the second-described lot of land, and to the extent of about forty acres of the first-described lot." The whole claim for damages to both lots was thus set forth in one count. There was evidence tending to show that there was also another fire, which burned over the Southwick lot on September 2, 1883, and Knowlton brought a second action (which is the case now before us) in November, 1883; claiming damages for burning the Southwick lot, without alleging when the fire occurred. The first action was referred to arbitrators, who made an award in favor of the plaintiff, upon which judgment was afterwards entered, and the judgment was paid by the defendant. At the trial of the second action the plaintiff did not seek to recover damages arising from the fire of September 2, 1883, but sought only to recover for the damage done to the Southwick lot by the fire of May 5, 1881; and offered to show, by the testimony of the arbitrators, that, in making their award, they did not include any damages to that lot; and the plaintiff contended that therefore the judgment rendered in the first action did not include such damages. Assuming this to be true, without considering at all as to the competency of the evidence offered, and assuming also that the second action may fairly be deemed to have been commenced to recover damages to the Southwick lot from the first fire,--a point which is certainly doubtful,--it is nevertheless plain that the action cannot be maintained; for the case falls fully within the principle of the decision in Trask v. Railroad Co., 2 Allen, 331. In that case the plaintiff brought an action and recovered judgment therein against a railroad company, for the loss of a shop by fire communicated by one of its locomotive engines. He afterwards brought another action, for the benefit of an insurance company, to recover for the loss of a dwelling-house and shed which took fire from the burning of...
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