Rudder v. Koopman

• Decision Date: 28 June 1897
• Citation: 116 Ala. 332,22 So. 601
• Parties: RUDDER v. KOOPMAN ET AL.
• Court: Alabama Supreme Court

22 So. 601

116 Ala. 332

RUDDER v. KOOPMAN ET AL.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by Josephine Rudder against Mary A. Koopman and John Gerdes partners as Koopman & Gerdes. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The original complaint was as follows: "The plaintiff claims of the defendants one thousand dollars, as damages, for that heretofore, to wit, on or about the 4th day of March, 1894 the said defendants kept, stored, or deposited in the incorporated town of Cullman, in said state and county dynamite, a highly explosive and dangerous article, in very dangerous quantities, of which were well known to said defendants; and on or about the said day and date the said dynamite did explode, and cast fire or coals or burning brands or timbers upon the two-story wooden building of the plaintiff, situated near to where said dynamite was stored or deposited, and by said explosion the same was set on fire and burned to the ground, and wholly destroyed, to the damage of the plaintiff of one thousand dollars, which sum this suit is brought to recover." To this complaint the defendants demurred, upon the following grounds: "(1) It is nowhere alleged in said complaint that the defendants negligently stored or deposited within the corporate limits of the incorporated town of Cullman any quantity of dynamite. (2) It is nowhere averred in said complaint that the defendants were guilty of negligence in having in their possession the alleged dynamite. (3) It is nowhere averred in said complaint that the said defendants negligently handled said dynamite, or were negligent in storing or keeping the same. (4) Because the facts showing the cause of the explosion of said dynamite are nowhere set out or averred in said complaint. (5) Because it is nowhere averred in said complaint that the defendants were negligent in having said dynamite in their possession, or in handling the same, or in the manner in which they had the same stored. (6) Because no such facts are averred in said complaint as either show, or tend to show, that the having of said dynamite stored in said alleged building was the proximate cause of the alleged damage." These demurrers were sustained, and the original complaint was amended as follows: "The plaintiff claims of the defendants the further sum of five thousand dollars as damages, and alleges that the said defendants were in the possession and control of certain buildings and lots and their appurtenances, in the incorporated town of Cullman, said state and county, in a thickly-settled part of said town, on and prior to the 4th day of March, 1894; that the defendants, well knowing the highly explosive nature of, and the immense power for injury in case of explosion of, dynamite and powder, and especially when the same is kept in connection with the caps or fuse used in exploding the same, did, nevertheless, negligently, wrongfully, and injuriously keep a large amount, to wit, four boxes of dynamite, and, to wit, one hundred pounds of powder, in connection thereto, or in the same box or can thereto, did also keep caps or fuse, upon the ignition or explosion of which the said dynamite would immediately explode, and negligently, wrongfully, and injuriously allowed the dynamite and powder in such condition to remain in or on their said premises; so that, on the day and date above set forth, their said building having caught fire, the said dynamite, with the caps and fuse, were ignited and exploded with such force and violence that the burning shingles, or pieces of boards and timbers from the defendants' burning store, were hurled or carried or thrown upon the plaintiff's building, or buildings adjoining plaintiff's building, neither of which were more than five hundred feet from the said building of the defendants, so that plaintiff's building, with all its contents, to wit, household goods, wares, and merchandise, were set on fire, and wholly consumed, to his damage as aforesaid; hence this suit. (2) The plaintiff claims of the defendants the further sum of five thousand dollars, and alleges that the defendants were in the possession and control of certain houses and premises in the incorporated town of Cullman, in said state and county, and in a thickly-populated portion of said town, and, while so possessing and controlling such premises, they had stored therein, to wit, on the 4th day of March, 1894, a large amount, to wit, four boxes of dynamite, with caps or fuses, and, to wit, more than fifty pounds of gunpowder, the explosion of either of which the said defendants well knew would occasion great loss and damage to all the property adjoining in the immediate vicinity of their said premises where the same was stored; and that on, to wit, the said 4th day of March, 1894, a fire having originated in a building adjoining the building where said explosives were stored, and it being apparent and evident that the fire would soon catch or burn defendants' premises, where such explosives were stored, and that thereby the same would be exploded, the said defendants, though ample time and opportunity were offered by the exercise of due care and diligence on their part so to do, wholly failed, neglected, and refused to remove said explosives from the said place of deposit, and to a place of safety from said fire, but wrongfully, negligently, and injuriously allowed the same to remain until their premises took fire, and burned, and caused the said dynamite and gunpowder to explode, and, by the force, power, and violence of such explosion, threw burning fire brands or coals or pieces of burning timber upon the building of the plaintiff, or upon the building adjoining the buildings of the plaintiff, neither of such buildings being more than, to wit, five hundred feet from the said buildings of the defendants, whereby the buildings of the plaintiff were set on fire, and the same, with all their contents of household goods, furniture, goods, wares, and merchandise, were wholly consumed and destroyed, to his damage of five thousand dollars, as aforesaid." To the first count of the amended complaint the defendants demurred upon the following grounds: "(1) Because it is not sought to connect the defendants in any manner with negligence about the fire, which the complaint alleges was the primary and proximate cause of the explosion. (2) Because it is not alleged therein that the natural tendency of depositing the dynamite and caps or fuses together was to explode, or that the explosion was caused alone by so depositing them; but it is alleged in said complaint that the explosion was caused by a fire with which the defendants are in no manner connected." To the second count the defendants demurred upon the following grounds: "(1) Because it is conceded therein that the storage of the explosives was legal, and bases the sole right for damage for the failure to remove the explosives, but does not state the defendants were guilty of any negligence in starting the fire, which, is alleged, originated on another's premises, and which, it is alleged therein, was the proximate cause of the explosion. (2) Because, under the facts stated in said count, there was no duty resting upon the defendants to remove the said explosives." The demurrers to each of these counts were sustained. Thereupon the plaintiff offered to amend the complaint by the addition of the following count: "Count 4. The plaintiff claims of the defendants five thousand dollars as damages, because she says for that heretofore, to wit, on or about the 4th day of March, 1894, in the incorporated town of Cullman, in said state and county, the defendants did store or deposit a large quantity of powder and dynamite, to wit, one hundred pounds of powder and one hundred pounds of dynamite, in a wooden building, which was near to and adjacent to several wooden buildings in or near a street in the town of Cullman, in a thickly-inhabited portion of said town; that, on the day above mentioned, a fire originated in one of the wooden buildings near to the building wherein the defendants stored the said powder and dynamite; that, in consequence thereof, the said wooden building wherein the said powder and dynamite were stored caught on fire, and the dynamite and powder therein exploded; that, in consequence of said explosion, large pieces of burning timbers and sparks and coals of fire were hurled in and upon the houses near thereto, and the plaintiff's house was burned, and the furniture therein destroyed; hence this suit." The court refused to allow the addition of this count, and to this action of the court the plaintiff duly excepted. The plaintiff then filed 10 other counts. Each of these counts set forth the facts substantially as stated in the former counts of the complaint; basing plaintiff's right of action to the wrongful storage of the powder and dynamite, and alleging the facts pertaining thereto so as to cover the different phases of the case. Under the opinion on the present appeal, it is deemed unnecessary to set out these different counts at length. To each of these counts the defendants demurred, setting up as causes of demurrer substantially the same grounds upon which are based the demurrers which are set forth above. The court sustained each of the defendants' demurrers to the several counts of the complaint, and, the plaintiff declining to amend or to plead further, judgment was rendered for the defendants. From this judgment the plaintiff appeals, and assigns as error the several rulings of the trial court in sustaining the several demurrers interposed by the defendants to the plaintiff's complaint.

Sumter Lea & McMaster and Cofer & Brown, for appellant.

George H. Parker...