Sandberg v. Cavanaugh Timber Co.

• Decision Date: 12 April 1917
• Docket Number: 13382.
• Court: Washington Supreme Court
• Parties: SANDBERG v. CAVANAUGH TIMBER CO.

164 P. 200

95 Wash. 556

SANDBERG v. CAVANAUGH TIMBER CO.

No. 13382.

Supreme Court of Washington, En Banc.

April 12, 1917

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Carrie Sandberg against the Cavanaugh Timber Company. From judgment for plaintiff, defendant appeals. Affirmed.

W. P Bell and Coleman & Fogarty, all of Everett, for appellant.

Cooley Horan & Mulvihill, of Everett, and A. M. Wendell, of Arlington, for respondent.

PARKER J.

This is an action to recover damages for property destroyed by fire. Trial in the superior court sitting with a jury resulted in verdict and judgment awarding plaintiff damages in the sum of $2,000, from which the defendant has appealed to this court.

Appellant at the time in question was engaged in logging upon its own land in Snohomish county. Respondent at that time owned a farm about two miles from where appellant was logging. The fire in question destroyed respondent's barn, outbuildings, hay, feed, and implements, which, as alleged by her, were of the total value of $2,550. The fire originated upon appellant's land, about 150 feet from one of its donkey engines, which was being used in its logging operations, and was discovered there by appellant's employés and its foreman very soon after it started, as to which facts there is no controversy. By the allegations of respondent's complaint appellant was charged with starting the fire and with negligently doing so, and also with negligence in failing to put the fire out and permitting it to spread to respondent's property. It is conceded that the evidence introduced upon the trial fails to show any negligence on the part of appellant in connection with the starting of the fire. It is a disputed question of fact as to whether or not appellant did start the fire, which question however, we think it will appear, is of no moment in our present inquiry.

Counsel for appellant contend that certain testimony bearing upon the question of appellant starting the fire was erroneously received over their objection, and that the trial court erred in giving instructions bearing upon that question. Counsel for respondent contend that the ruling of the trial court touching the receiving of evidence and the giving of instructions upon the question of appellant starting the fire were in no event prejudicial to the rights of appellant, in view of the undisputed fact that the fire actually started upon its land, and was known by its employés and foreman to have started there very soon thereafter. The testimony claimed to have been erroneously admitted was that of a witness who stated, 'I asked him [the foreman] how the fire got started, and he told me from the donkey,' which statement of the foreman, as testified to by the witness, occurred on the day following the starting of the fire; and the instructions complained of, as interpreted by counsel for appellant, assumed in substance that the fire started from the donkey engine, and in that sense from the act of appellant, though without negligence upon its part. So there remained for the jury's consideration only the question of negligence of appellant in failing to subdue the fire and prevent it spreading to respondent's property. So far, therefore, as we are concerned with these rulings of the trial court, assuming for argument's sake that they were technically erroneous so far as the question of appellant's starting the fire is concerned, our problem is: Was appellant, having knowledge of the starting of the fire upon its own premises, required by law to exercise due diligence looking to the prevention of the spreading of the fire to respondent's property; and would the failure on the part of appellant to exercise due diligence in that behalf render it liable to respondent as for negligence? If this obligation rested upon appellant, regardless of how the fire actually started, and the trial court by its instructions prescribed no higher degree of care than the law imposes upon the owner of land on which fire starts apart from his own act, but knows of the starting of the fire in time to prevent by due diligence its damaging his neighbor, then these rulings of the trial court would be without prejudice, because of their relation to a question which would not affect the measure of appellant's responsibility and diligence, however it might be decided. The authorities convince us that there may be negligence, such as to render the owner of premises liable to his neighbor in his failure to use due diligence in preventing the spread of a fire originating upon his own land, though it so originate without any act or fault of his own. The common law seems to have rendered an owner of premises on which fire starts, regardless of the manner of its starting, absolutely liable for damage which his neighbor suffers therefrom; but the harshness of this doctrine has been much modified in both England and this country in recent times. In the text in 11 R. C. L. 940, the learned editors state the present-day rule as follows:

'The general rule in this country, as in England, is now well settled that when a private owner of property sets out fire on his own premises for a lawful purpose, or when a fire accidentally starts thereon, he is not, in the absence of a statute to the contrary, liable for damage caused by its communication 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.'

In Bishop's Non-Contract Law, at section 833, that learned author says:

'Since fire, one of the most beneficent servants of man, does not from its own nature imperil surrounding persons and objects, the careful setting and keeping of it in one's dwelling house, shop, field, or elsewhere, for a useful purpose, creates no liability to another injured by its spreading, through some accident not reasonably to be anticipated. But 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 the damages.'

In this text it will be observed that it is at least inferentially stated that there may be negligence rendering an owner of premises liable in such cases, regardless of how the fire starts upon his premises. The reports furnish but few instances of decisions being rendered wherein there is considered the question of the measure of the duty of a person, on whose premises a fire is started by some agency for which he is not responsible, to prevent its spread to his neighbor's property. The decisions touching this exact question, however, seem to be in harmony in holding that there is a measure of responsibility on the part of an owner, growing out of such a situation, which requires him to use reasonable effort to prevent the spread of a fire occurring upon his premises, apart from his own act or neglect attending the starting of the fire, which may render him liable to his neighbor as for negligence.

In Baird v. Chambers, 15 N.D. 618, 109 N.W. 61, 6 L .R. A. (N. S.) 882, 125 Am. St. Rep. 620, this exact question seems to have been under consideration. In that case the fire was started upon defendant's ranch without any act or fault of his own. He...