Pfeiffer v. Aue

• Decision Date: 23 December 1908
• Citation: 115 S.W. 300
• Parties: PFEIFFER v. AUE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 300

PFEIFFER v. AUE.^†

Court of Civil Appeals of Texas.

December 23, 1908.

Rehearing Denied January 20, 1909.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by H. C. Pfeiffer against Herman Aue. From a judgment for defendant, plaintiff appeals. Affirmed.

Ed. Haltom and Geo. C. Altgelt, for appellant. Carlos Bee, for appellee.

FLY, J.

Appellant sued appellee to recover damages arising from the destruction of grass and wood on appellant's land by a fire intentionally started by appellee on his land adjacent to that of appellant, and which was thence communicated to the grass of appellant's land. The cause was tried by jury, and resulted in a verdict and judgment for appellee.

It is not controverted that the fire was kindled by appellee on his land, that it was communicated from his land to that of appellant, and that it destroyed his grass and fallen timber. The owner of land has the right to kindle a fire on his own property, but he is under obligation to use ordinary care to confine it within his own premises, so as to avoid injuring the property of others. This is the American rule, in contradistinction to the rule of the common law, by which every man was bound to keep fire, intentionally lighted by him, within the limits of his own property, and was liable for any injury done by its escape to the property of another, although he had not been guilty of negligence. In the case of Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623, the English cases were reviewed, and the court concluded: "In conflict with the English cases is a class of cases in reference to damage from fire communicated from the adjoining premises. Fire like water or steam, is likely to produce mischief if it escapes and goes beyond control, and yet it has never been held in this country that one building a fire upon his own premises can be made liable if it escapes upon his neighbor's premises and does him damage, without proof of negligence. Clark v. Foot, 8 Johns. (N. Y.) 422; Stuart v. Hawley, 22 Barb. (N. Y.) 619; Calkins v. Barger, 44 Barb. (N. Y.) 424; Barnard v. Poor, 21 Pick. (Mass.) 378; Tourtellot v. Rosebrook, 11 Metc. (Mass.) 460; Batchelder v. Heagan, 18 Me. 32. The rule as laid down in Clark v. Foot, 8 Johns. (N. Y.) 422, is as follows: "If A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the woodland of B., his neighbor, no action lies against A., unless there was some negligence or misconduct in him or his servant. And this is the rule throughout the country, except where it has been modified by statute." Speaking on this subject in the case of Railway v. Platzer, 73 Tex. 117, 11 S. W. 160, 3 L. R. A. 639, 15 Am. St. Rep. 771, the Supreme Court of Texas said: "Every person has the right to kindle a fire on his own land for any lawful purpose; and, if he uses reasonable care to prevent its spreading and doing injury to the property of others, no just cause of complaint can arise, yet, although `the time may be suitable and the manner prudent, if he is guilty of negligence in taking care of it, and it spreads and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and injury is done in consequence whereof the liability attaches, it is immaterial whether the proof establishes gross negligence or only a want of ordinary care on the part of the defendant.'" It follows from the foregoing statement of the law that the first assignment of error, which complains of the charge of the court which made the exercise of ordinary care the test of appellee's liability, cannot be sustained. Appellant's proposition is that: "When one proprietor intentionally sets fire to his pastures for the purpose of destroying old and worthless grass, he must at his peril undertake to confine the fire to his property, so it may not injure the property of the adjacent proprietor; and the rule of ordinary care and prudence has no...