Mahaffey v. J.L. Rumbarger Lumber Co.
| Decision Date | 19 March 1907 |
| Citation | 56 S.E. 893,61 W.Va. 571 |
| Parties | MAHAFFEY v. J. L. RUMBARGER LUMBER CO. |
| Court | West Virginia Supreme Court |
Submitted February 12, 1907.
Syllabus by the Court.
One setting fire upon his premises is charged with the duty of exercising ordinary care and skill in preventing it from spreading and being communicated to the property of another and if he fails to exercise such care, and by reason thereof the fire is communicated to the property of another, causing him damage, he is liable for the damages sustained by reason thereof.
Where by deed land is conveyed absolutely, evidence of a parol agreement made prior to or at the time of the execution of the deed is inadmissible to show that the grantor excepted from the operation of the conveyance certain buildings standing upon the premises conveyed.
Where in an action for damages for negligently allowing fire to escape from premises of the defendant, the defense is that the loss was occasioned by a sudden shift of the wind, it must be shown, in order that such defense may avail, that the change of the wind was unusual and extraordinary, and such as in its nature not reasonably to be expected.
A peremptory instruction to find for the defendant should not be given, unless the court can see from the whole evidence that it would not sustain a verdict, if found for the plaintiff.
Error to Circuit Court, Grant County.
Action by J. W. Mahaffey against the J. L. Rumbarger Lumber Company. From a judgment in favor of plaintiff, defendant brings error. Reversed and remanded.
C. W Dailey and L. J. Forman, for plaintiff in error.
Cunningham & Stallings, for defendant in error.
SANDERS P.
This is an action of trespass on the case, instituted in the circuit court of Grant county by J. W. Mahaffey against the J. L Rumbarger Lumber Company, which resulted in a verdict and judgment in favor of the plaintiff, and after an unsuccessful motion for a new trial the case is brought here for review upon a writ of error and supersedeas.
The plaintiff's cause of action, as stated in his declaration, is that the defendant was, at the time of the commission of the injuries complained of, the owner of the timber, or a portion thereof, standing upon a tract of land in Grant county known as the "Holmes, Gale & Harness Survey," commonly called "the 18,000-acre tract," which adjoined land occupied by the plaintiff as tenant, the latter property adjoining land owned by the plaintiff in fee; that the de fendant was engaged in removing this timber, and in doing so conducted its operations in such manner as to set fire to brush, logs, trees, and timber upon said tract of land; that it negligently failed and omitted to guard this fire, and also negligently permitted it to escape from the premises under its control to the premises in possession of the plaintiff--the result being that the fire destroyed certain property of the plaintiff, including, among other things, a barn of the value of $150 and a calf shed of the value of $40, these two structures being upon the property owned by the plaintiff in fee, containing 112 acres and 10 poles. The declaration does not charge the defendant with negligence in the origin of the fire, but the gravamen of the complaint is that it was started by the defendant upon its own premises, and negligently permitted to be communicated to the property of the plaintiff, causing him injury. Therefore the controlling questions involved upon the trial of this case below were: First, did the defendant start the fire upon its own premises? Second, if so, was it chargeable with negligence in permitting the same to spread and be communicated to the property of the plaintiff? Third, if guilty of such negligence, was the plaintiff directly injured by reason thereof, and, if so, to what extent? In dealing with these propositions, we will do so in connection with the various assignments of error relied upon by the defendant for a new trial.
1. The defendant asked the court to give to the jury 11 certain instructions, all of which were given, except instructions Nos. 1, 3, and 6, which were refused, and No. 8, which was rejected in the form as presented, but modified by the court and offered. Instruction No. 1 told the jury that the evidence was insufficient to sustain the issue on the part of the plaintiff, and directed a verdict in favor of the defendant. In determining whether or not this instruction should have been given, we will at the same time dispose of the assignment of the defendant that the evidence is insufficient to sustain the verdict, as the disposition of one of these propositions necessarily disposes of the other. At the outset it may be well to remark, as this case must be remanded for a new trial, it will be our purpose to refrain from commenting upon the evidence, except in so far as it may be necessary to do so in disposing of the questions arising upon the record, and what we may say must not be considered as intimating any opinion upon the weight of the testimony and the credit that shall be given it upon another trial.
We have observed that this case is not predicated upon the theory that the defendant was guilty of negligence in connection with the origin of the fire, but the theory presented is that the fire was started by the defendant upon its own premises, and negligently permitted to spread and to be communicated to the property of the plaintiff. Therefore we must determine whether or not the evidence to establish the fact that this fire was started by the defendant upon its own premises was sufficient to be submitted to the jury for their determination. Upon a careful examination and consideration of all the evidence, we find that it is such as should have been submitted to the jury. There is no question that a fire started on the premises of the defendant on Thursday before the plaintiff's property was burned; but the contention seems to be whether or not it was started by the defendant, and, if so, whether or not it was the fire which spread and caused the injury--there being some claim that the fire which did so came from other points. It was for the jury to say, from all the facts and circumstances of the case, whether or not this fire which originated upon the property under the control of the defendant was started by it, and whether or not it was the same fire which caused the injury. This being so, we must next inquire whether or not the evidence as to the negligence of the defendant in permitting the fire to spread and to be communicated to the property of the plaintiff is such as called, also, for its submission to the jury; and in passing upon this matter, it is important to know in what instances and under what circumstances one can be held liable for injury caused to another by reason of fire emanating upon the former's premises being communicated to the property of the latter and resulting in injury to him. The general rule is well settled that when a private owner of property sets out fire upon his own premises for a lawful purpose, or fire accidentally starts thereon, he is not liable for the damages caused by its communica tion to the property of another, unless it started through his negligence, or he failed to use ordinary skill and care in controlling or extinguishing it.
There being no claim, however, that there was any negligence in starting the fire, the pertinent inquiry here is whether or not the facts proved are sufficient to be submitted to the jury upon the question as to whether or not the defendant used ordinary skill and care in controlling it and preventing the communication thereof to the property of the plaintiff. "The general rule in this country is that, where an accidental fire starts upon one's premises, he is not liable for the damage thereby caused to his neighbor, unless it started through his negligence, or he failed to use ordinary care and skill to extinguish it, or failed to provide adequate means for doing so." 2 Shearman & Redfield on Negligence (5th Ed.) § 665. This text seems to be supported by the general line of decisions, and from our investigation we find that it is the accepted doctrine in this country. In the case of McNally v. Colwell, 91 Mich. 527, 52 N.W. 70, 30 Am.St.Rep. 494, we find an extended and valuable note upon this question, with the citation of many authorities supporting this view. Bishop on Noncontract Law, § 833, says: "A fire set or looked after negligently, if by reason of such negligence it communicates to a neighbor's property and destroys it, will give the neighbor an action for damages." The gist of this action, it seems, lies in the fact that there is negligence upon the part of the defendant, and the books say that in this character of cases, when it is established that the defendant failed to exercise ordinary care and skill to suppress and control the fire and confine it to his own premises, he will be liable in damages. Collins v. George, 102 Va. 509, 46 S.E. 684; Snyder et al. v. P., C. & St. L. Ry. Co., 11 W.Va. 14; Hewey v. Nourse, 54 Me. 256.
Of course, it must be acknowledged that it is a well-settled principle of law that one in the prosecution of a lawful act or business is not liable for an injury resulting from an in evitable or unavoidable accident, which occurs without any blame or fault upon his part. But although the business prosecuted may be lawful, if it is...
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