Town of Douglas v. Nielsen
| Decision Date | 29 December 1965 |
| Docket Number | No. 3442,3442 |
| Citation | 409 P.2d 240 |
| Parties | TOWN OF DOUGLAS, a municipal corporation, and the Western Casualty and Surety Company, a corporation, Appellants (Defendants below), v. F. A. NIELSEN, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
R. R. Bostwick, of Murane, Bostwick, McDaniel & Scott, Casper, for appellants.
W. J. Wehrli, Casper, J. Patrick Hand, Douglas, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
Plaintiff below sought damages from the Town of Douglas for the value of his personal property destroyed by a fire which allegedly spread from the firing of the town's dump to plaintiff's lands. Trial being to the court without jury, plaintiff was given a money judgment against the town and its insurer, The Western Casualty and Surety Company. The defendants appeal contending there was insufficient evidence to support the judgment and there were errors of law by adverse rulings with reference to admissibility of evidence.
The record shows the town carried liability insurance authorized by c. 81, § 1, S.L. of Wyoming, 1961, then in effect although now repealed; that the town operates a municipal dump northeast of the town limits for the disposal of refuse and garbage by burning and destroying so much of the refuse and garbage as was combustible; that on December 6, 1963, the fire, set by the town for the consumption of the combustible refuse and garbage, escaped from the town's dump igniting surrounding grass and vegetation and spreading to plaintiff's lands where the fire continued to burn and consumed plaintiff's crop of hay and grass, some 360 line fence posts, and 11 corner posts, and damaged a quantity of fence wire; that a neighbor lady reported the fire to the town officials, and, although the town's employees were at the dump in the morning of December 6, 1963, nothing was done to see that the fire did not spread or to put out the fire; that when complaint had been previously made to the mayor of the dangerous fire condition at the dump, his response was that if there was any damage the town would be responsible, and other town officials made similar response; that the dump is located on high ground exposed to more wind than the lower ground; that on July 30, 1963, a fire from the dump had escaped and burned off probably 150 acres of range land before the fire department of the town got it under control; that plaintiff's lands are five-and-one-half miles from the dump; that prior to December 6, 1963, there seemed to be a fire burning continuously at the dump; that since December 6, 1963, the town has built an offset kind-of bird cage, a fence 7 feet high on two sides of the dump which consisted of 2-inch steel-wire mesh; that there were other prairie fires ignited from the dump, but the town controlled them before 'they got away'; that the burned area on December 6, 1963, was continuous from the dump to the edge of plaintiff's lands and continued across plaintiff's lands; and that plaintiff filed a claim for his damages with the Town of Douglas, but the claim was denied.
From this brief reference to the evidence, it appears the town was negligent by burning and permitting the burning of refuse on its dump at an elevation exposed to the full force of high winds without taking adequate precautions to control and contain the burning area and to prevent the fire spreading out of control over the surrounding territory. This negligence is emphasized by the evidence that only a few months prior to December 6, 1963, the fire spread from the dump, but due to efforts of the town's fire department damage was minimized and the spreading fire was brought under control. On December 6, however, even though in the morning the town's employees had been at the dump and knew the fire was in progress, and latter the town officials had been warned of the spreading of the fire, the town negligently failed to take any steps to control its spread or prevent the damage about which this action is concerned until after the fire had spread out of control.
Although appellants complain there was impropriety in permitting the ownerclaimant to testify as to the value of his destroyed property, this court in Shikany v. Salt Creek Transp. Co., 48 Wyo. 190, 45 P.2d 645, held an owner is prima facie qualified to give opinion as to value and to know value until the contrary appears. And in Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243, we said the weight of the owner's testimony was a question for the jury. Instead of the evidence tending to show the owner was not qualified to give opinion as to value of his destroyed property, the evidence was that as a rancher for many years he had experience in that business, knew the value of grass for the grazing of livestock; that with respect to his soil bank lands, he owned the grass, expected to use the grass, and took into account its value to him in feeding livestock; and that he knew how many animals could be pastured on a section of land, knew the going charge per month for running livestock, and he was familiar with the value of grass for raising livestock. Furthermore, the testimony of another rancher who had seen the grass on plaintiff's lands, both soil bank and other grasses, fully corroborated the owner's evidence.
Appellants' complaint of the court's interrogation of a witness is not well taken. The examination of the witness by respective counsel obviously left some question as to whether the witness was taking into consideration certain factors which the court may have felt were of some importance. We know of no rule which prevents a court from asking questions in an effort to clarify points left unclear in its mind, particularly when the court itself is the trier of fact.
Complaint is made that it was improper to admit testimony that, because the dump was upon higher ground than surrounding areas, it had a greater exposure to high winds. The witness being familiar with the region was entitled to say what he had observed and experienced as a matter of fact. This was not opinion.
While plaintiff's testimony that he had not seen anyone guarding the fire certainly fell short of proving there had not been such a guard at the dump, it was a relevant fact within the knowledge of the witness and was thus properly admissible. The matter is one of weight, not of admissibility, and it was within the court's discretion to receive it on redirect examination.
Testimony that the town...
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Ely v. Kirk, 85-32
...of an owner of property as to value is proper inasmuch as he is presumed to have special knowledge of it, citing Town of Douglas v. Nielsen, Wyo., 409 P.2d 240, 242 (1965); Adams v. Erickson, 394 F.2d 171, 173 (10th Cir.1968). See Continental Pipe Line Company v. Irwin Livestock Company, Wy......
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Adams v. Erickson, 9435.
...testify as to its value. United States v. Sowards, 10 Cir., 370 F.2d 87. The Wyoming courts have recognized this rule. Town of Douglas v. Nielsen, Wyo., 409 P.2d 240; Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243. However, in Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 755, the Wyoming Sureme ......
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Sagebrush Development, Inc. v. Moehrke
...Moehrke as to value was proper inasmuch as the owner of the property is presumed to have special knowledge of it. Town of Douglas v. Nielsen, Wyo., 409 P.2d 240 (1965); Adams v. Erickson, 10th Cir. 1968, 394 F.2d 171. Witness Hagerman was qualified and testified as an expert on value. The a......
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Town of Douglas v. York
...a fire from the town's dump for disposal of refuse and garbage started a range fire. The fire was the one involved in Town of Douglas v. Nielsen, Wyo., 409 P.2d 240. Insurance coverage was adequate to pay the judgment obtained in the Nielsen case and the question of governmental immunity wa......