Zimmer v. Stephenson

Decision Date17 June 1965
Docket NumberNo. 37432,37432
Citation403 P.2d 343,66 Wn.2d 477
PartiesFred ZIMMER by and through Teresa Zimmer, as Executrix of the Estate of Fred Zimmer, Deceased, Appellant, v. B. M. STEPHENSON, Respondent.
CourtWashington Supreme Court

J. D. McMannis, Colfax, for appellant.

Evans C. Bunker and F. L. Stotler, Colfax, for respondent.

HAMILTON, Judge.

In the summer of 1959, plaintiff owned a field of ripe wheat immediately adjoining defendant's property. On the afternoon of July 23, 1959, a dry, hot day in Whitman County, when the wind was allegedly blowing toward plaintiff's land, defendant undertook to plow a fireguard upon and around his land with an industrial type D--6 Caterpillar tractor, a piece of equipment not particularly designed for farm work. During the course of defendant's operation, plaintiff's wheat caught fire. The fire caused a substantial crop loss.

More than 2 years, but within 3 years, after the fire, plaintiff initiated this suit seeking damages. In support of his claim, plaintiff alleges, in essence, that the fire was caused by a spark or piece of burning carbon cast onto his property from the exhaust stack of defendant's Caterpillar, and that such would not have occurred had the Caterpillar been properly equipped with a spark arrester or had defendant otherwise observed suitable safety precautions.

Following a pretrial conference, the superior court by order dismissed plaintiff's action upon the ground that it had not been commenced within the time limited by law. In so doing, the court applied the 2-year statute of limitations, RCW 4.16.130. 1 Plaintiff has appealed, contending that the 3-year statute of limitations, RCW 4.16.080(1), 2 applies.

Essentially, the question presented on appeal is whether plaintiff's action is one which would, in common law pleading, be characterized as an 'action of trespass' or an 'action of trespass on the case.' The reason for this return to the honored but ancient distinction in forms of action springs from the case of Suter v. Wenatchee Water Power Co., 35 Wash. 1, 8, 76 P. 298 (1904), wherein this court stated:

'We must therefore conclude that, when our law makers provided a three-year limitation for actions for 'trespass upon real property,' they meant to include only such recovery as could have been had through the action of trespass at common law. It follows that actions under our present procedure, through which relief is sought for injuries to land, and which could have been had at common law through an action on the case only, are governed by our two-year statute of limitations hereinbefore cited.'

We have since followed and reiterated this rule in Denney v. City of Everett, 46 Wash. 342, 89 P. 934 (1907); Welch v. Seattle & Montana R.R. Co., 56 Wash. 97, 105 P. 166, 26 L.R.A.,N.S., 1047 (1909); Clark Lloyd Lbr. Co. v. Puget Sound & Cascade Ry. Co., 92 Wash. 601, 159 P. 774 (1916); White v. King Cy., 103 Wash. 327, 174 P. 3 (1918); Pettigrew v. McCoy-Loggie Timber Co., 138 Wash. 619, 245 P. 22 (1926). And, we adhered to the principle of the rule in distinguishing nuisance from trespass in Weller v. Snoqualmie Falls Lbr. Co., 155 Wash. 526, 285 P. 446 (1930) and Riblet v. Spokane-Portland Cement Co., 41 Wash.2d 249, 248 P.2d 380 (1952). In this latter respect, however, we pause to make clear that the theory of nuisance is not here involved.

Generally speaking, in common law pleading, trespass was that form of action whereby recovery of damages could be sought for an injury to the person, property, or relative rights of a plaintiff when the injury was committed with force, actual or implied, and was immediate and not consequential. Shipman, Common Law Pleading (2d ed. 1895), ch. 2, § 15, p. 50. And, trespass on the case was the form of action available for seeking recovery for torts committed without actual or implied force; or if, though the act was committed with force, the matter affected was not tangible, or the injury was not immediate, but consequential. Shipman, Common Law Pleading (2d ed. 1895), ch. 2, § 17, p. 86.

In Clark Lloyd Lbr. Co. v. Puget Sound & Cascade Ry. Co., supra, 92 Wash. at page 605, 159 P. at page 776 we quoted the traditional distinction between actions in trespass and trespass on the case from 3 Blackstone's Commentaries (Lewis' ed.), p. 123, as follows:

'And it is a settled distinction that, where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass Vi et armis; but where there is no act done, but only a culpable omission, or where the act is not immediately injurious, but only by consequence and collaterally, there no action of trespass Vi et armis will lie, but an action on the special case, as the damages consequent on such omission or act.'

We then further pointed out that (p. 605, 159 P. p. 776)

'If a thing lawful to be done results in damage, the case falls under the two-year statute. If the thing done is wrongful in its inception to the extent that it presently invades a property right, the three-year statute applies. * * *'

In the instant case, the superior court concluded that defendant in plowing a fireguard upon his premises was engaged in a lawful act, and that the claimed damages flowing therefrom were consequential rather than immediate or direct. Thus, the superior court applied the 2-year statute.

We are constrained to disagree with the superior court for three reasons.

First. The action of the defendant, which plaintiff alleges produced the loss claimed, was not simply the act of plowing a fireguard. It was the act of plowing a fireguard with an improperly equipped, spark-emitting tractor on a hot, dry, windy day in close proximity to a field of ripe inflammable wheat. Plaintiff thus alleged a wrongful and affirmative act, not a culpable and passive omission, from which the fire complained of directly and immediately resulted. If plaintiff's allegations be true, defendant's action was as wrongful and direct as though he had stood in his field and thrown a burning coal into plaintiff's field, and the results as immediate. As stated in the early case of Jordan v. Wyatt, 4 Grat. 151, 156, 45 Va. 151, 47 Am.Dec. 720 (1847):

'He who gives a mischievous impulse to matter is the actor, by whatever instrument or agent he acts, and whether he uses muscular strength or mechanical force, or even moral power, as if he commands or procures another to do the act; or whether he excites or inflames into action some dormant quality or property of a substance, natural or artificial, animate or inanimate. * * *

'It is no ground of defence to this action that the defendant was engaged in a lawful pursuit and intended no harm, and that his act would have been...

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21 cases
  • Jongeward v. BNSF Ry. Co.
    • United States
    • Washington Supreme Court
    • May 31, 2012
    ...way to oblivion.’ ” 104 Wash.2d 710, 718–19, 709 P.2d 793 (1985) (internal quotation marks omitted) (quoting Zimmer v. Stephenson, 66 Wash.2d 477, 482–83, 403 P.2d 343 (1965)). The distinction has been banished from our cases and discredited, and yet the majority would resurrect it now in a......
  • State v. Crandall
    • United States
    • Washington Court of Appeals
    • February 26, 1985
    ... ... rev. 1914); see also Zimmer v. Stephenson, 66 Wash.2d 477, 483, 403 P.2d 343 (1965) ... 2 Another serious danger is that if the police are permitted routinely to engage in ... ...
  • Gaines v. Pierce County
    • United States
    • Washington Court of Appeals
    • July 31, 1992
    ... ... 343, 357-59, 704 P.2d 1193 (1985), quoting Taylor v. Cincinnati [143 Ohio St. 426, 55 N.E.2d 724 (1944) ]. So can trespass. Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965). Indeed, there is little remaining difference between trespass and nuisance. Bradley v ... ...
  • Broughton Lumber Co. v. BNSF Ry. Co.
    • United States
    • Washington Supreme Court
    • May 31, 2012
  • Request a trial to view additional results
1 books & journal articles
  • "One man's ceilin' is another man's floor": property rights as the double-edged sword.
    • United States
    • Environmental Law Vol. 31 No. 4, September 2001
    • September 22, 2001
    ...of clinging to outmoded doctrines. The distinction between direct and indirect invasions to land was abandoned in Zimmer v. Stephenson, 66 Wn.2d 477, 403 P.2d 343 (1965). There the defendant had been plowing a fireguard in his field when a spark escaped from the exhaust stack of his tractor......

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