Lothrop v. Thayer

• Decision Date: 12 January 1885
• Citation: 138 Mass. 466
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Horace A. Lothrop v. Horatio B. Thayer & another

138 Mass. 466

Horace A. Lothrop v. Horatio B. Thayer & another

Supreme Judicial Court of Massachusetts

January 12, 1885

Argued November 14, 1883.

Argued November 15, 1883.

Norfolk.

Contract with a count in tort, to recover for the loss by fire of a building in Sharon, and certain personal property therein. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows:

The plaintiff was the owner of a large wooden building in Sharon four stories in height, which was fitted for the manufacture of shoes.

At the time of the letting hereinafter referred to, it had been unoccupied for several years, except tat the plaintiff had used a part of the second story of the building for the manufacture of stockings.

In the latter part of December, 1879, or in the early part of January, 1880, the plaintiff and the defendant Thayer had a conversation, in which the plaintiff agreed to let, and Thayer agreed to hire, the building, except the rooms in the second story occupied by the plaintiff, for one year from that date, for $ 50, with the privilege on the part of the tenant of occupying the premises for another year at $ 150 rent. It was in controversy whether Thayer made this bargain for himself alone, or for both defendants; and whether the defendants were in fact partners during their occupation of the building, or carried on business separately, and whether the other defendant hired the building, or so much as he used, from Thayer. No lease or written agreement of any kind was executed between the plaintiff and either of the defendants, or between the defendants themselves. Shortly after the agreement between the plaintiff and Thayer, the defendants went into occupation of the building, set up machinery, moved in stock, employed workmen, and carried on the business of the manufacture of shoes, using for this purpose all of the building except that part occupied by the plaintiff for the manufacture of stockings, as above stated, and not let.

The lower part of the building was heated by steam, but on the fourth story, which was used by the defendants, two stoves were used, one of which belonged to the plaintiff, the other being furnished by the defendants, and both of which had been put in position by the defendants some weeks before the fire. A jug of kerosene oil was kept in this room, from which the lamps used in the building were filled.

There was evidence tending to prove that these lamps were filled by different persons in the defendants' employ, and sometimes by the defendants themselves; that, in filling these lamps, some oil had been spilled on the floor; and that there were cracks in the chimney, which contained but a single flue, and was used for four different fires in the building. There was other evidence as to the condition of things in the building, and the conduct of the defendants before the fire, bearing upon the question of their negligence. There was also evidence upon the question whether the defendants intentionally set fire to the building.

The building and its contents, including the plaintiff's machinery, stock, and other property, the larger part of which was in the part of the building not let, and the defendants' machinery, stock, and other property, were destroyed by fire, about midnight, on December 10, 1880.

The plaintiff contended that the defendants intentionally set the fire; that they or their servants were guilty of negligence in the care of the fires and of the kerosene oil; that such negligence occasioned the fire; and that, upon either ground, the defendants were liable. The defendants denied that they intentionally set the fire, or that they or any of their servants were guilty of negligence, as contended; and requested the judge to rule that, as matter of law, they were not liable for mere negligence.

The judge instructed the jury that the defendants would be liable if they wilfully combined to set fire to the building, or if the fire was caused by their negligence.

The jury returned a verdict for the plaintiff; and the following questions in writing were put to them: "1. Was the property of the plaintiff burned by the carelessness and negligence of the defendants, or either of them? 2. Was the property of the plaintiff burned by the defendants, or either of them, intentionally?" The jury answered the first question in the affirmative, as to both the defendants; and the second question in the negative. If the rulings were correct, the verdict was to stand, and the case be sent to an assessor to assess the damages; otherwise, the verdict and special findings to be set aside.

New trial granted.

R. M. Morse, Jr. & H. L. Harding, for the defendants.

A. Churchill & G. O. Shattuck, for the plaintiff.

C. Allen & Holmes, JJ., absent. Field, J.

OPINION

Field, J.

The property destroyed or damaged by fire was, first, the portion of the building let by the plaintiff to the defendants, or to one of them; second, the remaining portion of the building belonging to the plaintiff and in his possession; and third, personal chattels of the plaintiff in part in the portion of the building let, and in part in the remaining portion. The liability of the defendants for the damage to the personal chattels stored with them must be determined by the degree of care required of such bailees as they were; and, although there has been much criticism upon the use of the words "gross," "ordinary," and "slight," as applied to negligence or care, it seems established that different degrees of care are required of different kinds of bailees, by whatever form of words the degree of care required may be expressed. The liability of the defendants for the damage to the personal property in the portion of the building in the possession of the plaintiff must be the same as their liability for the damage to that portion of the building; and this is the liability which every occupant of a building is under for a fire originating in it which extends to, and injures, the property of his neighbor. Assuming both defendants to be tenants of the plaintiff, their liability for the damages to the portion of the building let to them is the liability of tenants at will to their landlord.

The defendants requested an instruction that they were not liable for mere negligence, which was refused; and the court instructed the jury that, "if the fire was caused by their negligence," they would be liable, which means liable for the whole loss.

It is said that, by the ancient common law, if a fire is kindled in a house by the occupant, or by his servant, or any member of his household, or his guest, and it spreads to his neighbor's property and destroys it, heshall make good the loss. It is not certain, however, that the action did not proceed on the ground of negligence, either presumed or proved. Beaulieu v. Finglam, Y. B. 2 Hen. IV. fol. 18, pl. 6. Althorf v. Wolfe, 22 N.Y. 355, 366. Filliter v. Phippard, 11 Q. B. 347. Tuberville v. Stamp, 12 Mod. 152; 1 Salk. 13; 1 Ld. Raym. 264. Anon. Cro. Eliz. 10. Smith v. Brampston, 2 Salk. 644; 1 Ld. Raym. 62; 5 Mod. 87. Com. Dig. Action upon the Case for Negligence, (A) 6. Bac. Abr. Actions on the Case, (F). Rolle's Abr. Action sur Case, (B) Fire. Gale on Easements (5th ed.) 398-419. 1 Bl. Com. 431. Add. on Torts (3d ed.) 240-243. Gibbons on Dilapidations & Nuisances (2d ed.) 99-102, 133-148.

By the St. of 6 Anne, c. 31, § 7, no action, suit, or process whatsoever shall be had, maintained, or prosecuted against any person in whose house or chamber any fire shall, from and after the said first day of May, accidentally begin, &c. Section 9 of the act provided, "that nothing in this act contained shall extend to, defeat, or make void any contract or agreement made between landlord and tenant."

By the St. of 14 Geo. III. c. 78, § 86, "No action, suit, or process whatever, shall be had, maintained, or prosecuted against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall, after the said twenty-fourth day of June, accidentally begin," &c., "provided that no contract or agreement made between landlord and tenant shall be hereby defeated, or made void." These statutes did not extend to the Colonies, although one or both were adopted by some of them; they were not adopted by Massachusetts. From the passage of this statute of Anne there are no English cases for one hundred and thirty years, and the opinion of lawyers seems to have been that the statute covered fires caused by negligence, as well as by accident. The St. of Geo. III., being the statute then in force, was construed in Filliter v. Phippard, ubi supra; and it was held that a fire intentionally kindled by the defendant or his servant on his land, and negligently guarded, was not an accidental fire within the meaning of the statute. The rule in this Commonwealth has always been, that negligence is the foundation of the liability, and that the defendant is liable for the want of ordinary care; but the cases here are all of fires set on land for the purpose of clearing it, or for other purposes. Barnard v. Poor, 21 Pick. 378. Tourtellot v. Rosebrook, 11 Metc. 460. Higgins v. Dewey, 107 Mass. 494.

The few cases which are reported, in which it was sought to hold the defendant liable for the negligent acts of his servants in kindling or guarding fires in buildings, show a tendency on the part of courts to rule strictly upon the liability of masters for the acts of their servants. M'Kenzie v. M'Leod, 10 Bing. 385. Williams v. Jones, 3 H. & C. 256, 602. See Wood v. Chicago, Milwaukee, & St. Paul Railway, 51 Wis. 196, 8 N.W. 214.

The case which most nearly resembles the one at bar is Read v....