Nashville, C. & St. L. Ry. v. Heikens

• Citation: 79 S.W. 1038,112 Tenn. 378
• Parties: NASHVILLE, C. & ST. L. RY. v. HEIKENS.
• Decision Date: 26 March 1904
• Court: Supreme Court of Tennessee

79 S.W. 1038

112 Tenn. 378

NASHVILLE, C. & ST. L. RY. v. HEIKENS.

Supreme Court of Tennessee.

March 26, 1904

Error to Circuit Court, Franklin County; M. M. Allison, Judge.

Action by I. H. Heikens against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant brings error. Reversed.

Claude Waller and Lynch & Lynch, for plaintiff in error.

Frank L. Lynch and Murray & Murray, for defendant in error.

NEIL J.

This action was brought in the circuit court of Franklin county against the plaintiff in error to recover damages for the burning of a mill. The jury rendered a verdict in favor of the defendant in error for $5,000, and thereupon the plaintiff in error appealed, and has assigned errors as follows:

"First. There is no evidence in the record to support the verdict.

"Second. The court erred in declining to charge the jury, as requested by the defendant, as follows: 'The plaintiff to be entitled to recover in this case, must not only prove that the fire might have proceeded from the defendant's locomotive, but must show by reasonably affirmative evidence that said fire did originate from sparks emitted or thrown from defendant's engine.'

"Third. The court erred in not defining to the jury in some way or instructing them as to the character of circumstantial evidence necessary to establish a fact. As applied to this case, he should have told the jury that the circumstances shown in the evidence must be such as to make it at least probable, and not merely possible, that the mill was ignited by sparks omitted from defendant's engine.

"Fourth. Because the defendant did not have the benefit of the testimony of J. A. Haley, its engineer on engine No. 118, which witness should have shown conclusively that said engine, spark arrester, etc., were in perfect condition, and were properly handled by him on the day of the fire. This testimony was lost to defendant through no fault of its attorneys, and a new trial should have been granted on the showing made by the affidavits of J. J. Lynch and J. A. Haley.

"Fifth. The court erred in charging the jury as to the measure of damages as follows: 'If you find from the evidence in the case that the plaintiff would be entitled to recover, the amount of his recovery will be the value of the mill, engine, and boiler and whatever equipment was contained in the mill at the time it was destroyed by fire.' It being shown by the proof that the mill was incumbered by a lease to Hubert Cherry, who was in possession and who owned the contents of the mill at the time of the fire.

"Sixth. The court erred in declining to charge the jury, as requested by defendant, as follows: 'The plaintiff alleges in his declaration that I. H. Heikens was the owner and in possession of the mill that was burned, and before the plaintiff can recover this fact must be established by the proof. If the proof in this case established the fact that I. H. Heikens was not in possession of the property at the time of the fire, but had leased same to another, then the plaintiff cannot recover."'

Upon a careful examination of the testimony, we are of opinion that the first assignment of error must be overruled.

The second assignment is also overruled, because its substance appears in the charge of the circuit judge in language even stronger than that contained in the request.

The circuit judge, in substance, told the jury that, before the railway company could be held liable, the plaintiff below must show that the building was burned by sparks from the engine, or that the fire was set out by the engine of the plaintiff in error.

The court said to the jury: "The burden is on the plaintiff in this case to prove that his mill and fixtures were consumed by fire, and that this fire originated from a spark from one of the defendant's engines." The court also said that, after the plaintiff below had proved that he owned the mill, and that it was consumed by fire, "and that the fire was communicated to the mill by one of the defendant's engines, then the burden of proof would be shifted to the defendant company," etc. Again, the court said: "The plaintiff, in order to make out a prima facie case, must prove by a preponderance or greater weight of the testimony that the fire was caused by a spark from one of the defendant's engines." The same thought is expressed in different language in other parts of the charge. Again, the court told the jury that the plaintiff would be entitled to recover, "provided the facts and circumstances were such as to make you believe that the fire was communicated by an engine, and that the engine was not properly equipped, or was out of repair, as I have explained to you."

We are of opinion, from these instructions, that the jury got quite as clear an idea of the matter involved in the request contained in the second assignment of error as would have been imparted by a statement of the principle in the language there set out.

The third assignment of error must also be overruled. It is true the circuit judge did not give any instruction concerning circumstantial evidence, but, there being no request presented by plaintiff in error for an instruction upon that subject, the circuit judge could not be put in error for a failure to charge upon it.

The fourth assignment is overruled. We do not think that the affidavits referred to are sufficient, when taken in connection with the fact that the company knew that No. 118 had passed the building that day, and knew that very hour when it did pass. Taking all the circumstances together which should be considered in connection with the affidavits, we are of opinion that the company has not acquitted itself of negligence in respect of the absence of engineer Haley.

We shall pass the fifth assignment of error for the present.

The sixth assignment of error, we are of opinion, should be overruled. It was an immaterial allegation that the plaintiff below was in possession of the mill. Whether in possession or not, he could sue for an injury to his interest.

Now we come to the fifth assignment of error.

Before considering the legal question involved, it should be said that the testimony shows that the mill prior to the fire had been rented for the term of one year to one Hubert Cherry, who was in possession of it.

The substance of the assignment is that, inasmuch as there had been a lease of the mill for one year, which had not expired, there were two interests in the property--one that of the lessee, the other the interest of the reversioner, the owner in fee of the property; that each had a right to sue for an injury to his interest, but that neither had a right to sue for an injury to the interest of the other; and that in a suit by the reversioner for an injury to his interest the circuit judge could not lawfully ignore the existence of the leasehold estate, and instruct the jury to allow to the reversioner damages for the injuries inflicted upon the whole interest in the property.

It is insisted in behalf of defendant in error, that when the property was destroyed by fire the leasehold estate ceased, and nothing was left but the reversion. To sustain this proposition the following authorities are cited: Winton v. Cornish, 5 Ohio, 477; Stockwell v. Hunter, 11 Metc. (Mass.) 448, 45 Am. Dec. 220; Graves v. Berdan, 26 N.Y. 498; McMillan v. Solomon, 42 Ala. 356, 94 Am. Dec. 654; Ainsworth v. Ritt, 38 Cal. 89; Shawmut Nat. Bank v. Boston, 118 Mass. 125; Alexander v. Dorsey, 12 Ga. 12, 56 Am. Dec. 443; Harrington v. Watson, 11 Or. 143, 3 P. 173, 50 Am. Rep. 465; Porter v. Tull, 6 Wash. 408, 33 P. 965, 22 L. R. A. 613, 36 Am. St. Rep. 172; Kerr v. Merchants' Exchange Co., 3 Edw. Ch. 316; Chesebrough v. Pingree (Mich.) 40 N.W. 747, 1 L. R. A. 529; Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N.W. 785, 36 L. R. A. 424, 61 Am. St. Rep. 554; Waite v. O'Neil, 76 F. 408, 22 C. C. A. 248, 34 L. R. A. 550.

In all the foregoing authorities except the three last cited it appeared that the property rented was a room or apartment in a building or a cellar, or some part of the building as distinguished from the whole building. In this class of cases the authorities are practically uniform that the destruction of the building brings the interest of the lessee to an end. The reason given is that the lease of such a portion of a building does not carry with it any interest in the land. The whole subject is discussed luminously and with great learning in the case of McMillan v. Solomon, supra. No different doctrine is taught in volume 2, Taylor's Landlord & Tenant, § 520, referred to by counsel.

The current of authority is almost without exception that, where a building is rented without any language indicating that only the building itself is leased, as distinguished from the subjacent land, both the building and the land pass under the lease, and a destruction of the building will...