Lucas v. Wattles

• Decision Date: 31 October 1882
• Citation: Lucas v. Wattles, 49 Mich. 380, 13 N.W. 782 (Mich. 1882)
• Court: Michigan Supreme Court
• Parties: LUCAS v. WATTLES.

13 N.W. 782

49 Mich. 380

LUCAS v. WATTLES.

Supreme Court of Michigan

October 31, 1882

In an action for the negligent destruction of plaintiff's buildings by fires lighted by defendant or not properly cared for by him, the plaintiff can give evidence of the presence of combustible material upon defendant's premises even though the fact is not counted on in the declaration.

In suing for damages from negligence plaintiff must count on the negligence relied on; but when this is properly averred he need not set out the facts which go to establish it.When defendant is notified with what negligence he is charged, he is thereby informed that the circumstances which tend to show whether he was wanting in due care in that particular will be in issue.

A party cannot on error complain of the exclusion of testimony on the ground that he had asked it for a particular purpose when at the time of its exclusion he had stated a different purpose which would not be likely to suggest to the court the ground afterwards taken.

Interest from the beginning of suit, though not demandable in an action for the negligent destruction of property, may nevertheless be allowed if the recovery has been restricted to the actual value of the property and interest thereon.

Error to Lapeer.

Moore & Bentley, for plaintiff.

Geer & Williams and S.B. Gaskill, for defendant and appellant.

COOLEY, J.

This action is brought for the negligent destruction of the plaintiff's buildings by fires lighted by defendant, or not properly cared for by him.The declaration contains four counts, The first alleges that defendant, on the third day of September, 1881, at North Branch, in the county of Lapeer lighted a fire on his, the defendant's land, and so negligently kept said fire that it extended from the defendant's land to the adjoining buildings of the plaintiff, to-wit, one dwelling-house, one frame barn and one log barn, and wholly destroyed them with their contents, and also destroyed a large quantity of fence belonging to the plaintiff, in all of the value of $1,500.The second count alleges that the fire was lighted by the plaintiff at a time when, by reason of the state of the wind and weather, it was highly dangerous to light a fire, and that through the negligence of the defendant and his servants the fire extended itself from the close of the defendant to the close of the plaintiff, and burnt and destroyed the trees, fences and buildings, etc.The third count alleges that a fire was lighted on the close of the defendant, and that said fire was so negligently managed by said defendant and his servants that it extended to the plaintiff's buildings, fences timber, etc., and destroyed them, etc.The fourth count was framed under the statute, and charges that the defendant did negligently permit fire to pass from his own woods and grounds to the destruction of the property of the plaintiff etc., whereby they were burned and destroyed, etc.

On the trial plaintiff gave evidence that on the fifth day of September, 1881, he was owner and occupant of certain premises in North Branch, and defendant owned and occupied land adjoining on the west.On that day a fire came up from defendant's premises and ran upon his own land to the buildings, and destroyed them with their contents.Plaintiff being on the stand as a witness testified that he traced the fire from defendant's land to his own, but did not trace it to where it originated.The country was then very dry.There was wild grass on defendant's land in some places and a great deal of brush up in the woods chiefly hemlock and pine.The timber had been taken away a year ago last winter and the brush left.This evidence respecting the condition of the premises was objected to by the defendant, as not being admissible under the declaration.The court admitted it, and the admission is assigned for error.It is urged...