Lieuallen v. Mosgrove

Mr. Justice Bean,

after making the fo'regoing statement of the facts, delivered the opinion of the court.

The notice of appeal contains several assignments of error, but they present practically only two questions : First, error of the court in overruling defendants’ motion for nonsuit, made at the close of plaintiff’s testimony; and, second, error of the court in ruling and instructing the jury, in substance, that the plaintiff was entitled to recover in this action if it appeared that the fire which consumed his property was the result of the carelessness and negligence of the defendants in not caring for and extinguishing the fire contained in the ashes taken from the engine, although they were not negligent or careless in taking the ashes from the engine, and placing them upon the ground in and about the straw and stubble. *286 These two alleged errors involve practically the same point, for there seems to have been no proof of negligence in the operation of the engine. The ashes were taken therefrom in the ordinary and customary way, and the evidence shows that due care was exercised in doing so. The ground was first wet down, and the ashes, after they were dumped, were wet with the hose, both before and after the removal of the engine. It is true there was evidence tending to show that some fire was left in the ashes, unextinguished, which was uncovered by the wind storm, and probably communicated to the adjoining straw and stubble, and thus spread into the plaintiff’s field, and consumed his property; but that fact is not evidence of negligence in taking the ashes from ' the engine, and placing them upon the ground at an unsuitable place, although it might be evidence tending to show that proper effort had not been made to extinguish the fire therein before leaving the field. The negligence of the defendants,-if any, consisted in the fact that they did not use due care and caution in the attempt to extinguish the fire taken from the engine and dumped on the ground, and both the motion for a nonsuit and the instructions of the court involve the question as to whether the complaint charges the defendants with negligence in this particular. It is settled law in this state, as well as elsewhere, that in an action of this character the plaintiff cannot allege negligence in one particular, and on the trial prove and recover upon another, but that, where the complaint specifies the particular act of negligence relied on, the trial must be had on the issue thus made. Woodward v. Or. Ry. & Nav. Co., 18 Or. 289 ( 22 Pac. 1076 ); Knahtla v. Or. Short Line Ry. Co., 21 Or. 136, 142 ( 27 Pac. 91 ). For a learned discussion of the ‘ ‘ necessity of alleging what you intend to prove in negligence cases,” in view of the adjudication, refer *287 ence is made to an article by Mr. Seymour D. Thompson in 30 Am. Law Rev. 827 .

Now, no negligence can be imputed to the defendants from the mere fact that ashes, which necessarily contained some fire, were taken from the engine and placed upon the ground. They were engaged in a lawful business, and had a right to use fire in the operation of their engine, and to dump the ashes on the ground. Indeed, there was no other way of removing them, and hence no action lies for doing so, unless negligence appears either in dropping them at a place where the fire which might be contained therein would be likely to communicate to inflammable material, and thus spread over the adjoining field, or, after dropping them at a suitable and proper place, in failing to exercise due care and caution to extinguish the fire therein. If, on account of negligence in either of these particulars, the plaintiff’s property was consumed, the defendants would be liable, but they are separate and distinct grounds of liability. The proof of one will not justify a recovery on a specified allegation of the other. Every person may lawfully set out fire on his own premises for the purposes of husbandry, or for any other lawful purpose, and he is not liable for an injury to his neighbor resulting therefrom unless he is guilty of negligence in setting out the fire at an improper or unsuitable time, or in not using reasonable care and diligence to prevent it spreading and doing injury to the property of others. Hewey v. Nourse, 54 Me. 256 ; Higgins v. Dewey, 107 Mass. 494 ( 9 Am. Rep. 63 ). But it has been held that an allegation that a defendant negligently and carelessly set fire to inflammable material on his own premises, which communicated to and consumed the property of the plaintiff, is insufficient to admit proof or sustain a recovery on the ground of negligence in allowing the fire to escape or *288 communicate to plaintiff’s property. Pittsburgh & St. Louis Railroad Co. v. Culver, 60 Ind. 469 ; Pittsburgh & St. Louis Railroad Co. v. Hixon, 79 Ind. 111 . So, in this case, an allegation that the defendants negligently and carelessly did take and permit the fire to be taken from the engine, and placed upon the ground in and about the straw and stubble, and thereby allowed it to communicate to and consume the plaintiff’s property, would be insufficient to justify a recovery on the sole ground that they were negligent in not extinguishing the fire after it had been taken from the engine.

The averments of the complaint are somewhat involved, and it is not entirely clear whether the pleader intended to confine the charge of negligence to the operation of the engine by taking and permitting the fire to be taken therefrom, and placed on the ground in and among inflammable material, and by that means allow and permit it to burn over the straw and stubble and into the field of the plaintiff, and consume and destroy the property described in the complaint, or whether he intended to charge both negligence in the operation of the engine in the particulars referred to and in failing to extinguish the fire after it had been taken from the engine. But it seems to us the better construction of the pleading is, and its averments, omitting all surplusage and unnecessary repetition, are, that the defendants, while operating an engine, did carelessly and negligently, and without due or proper regard or caution, take and permit the fire to be taken therefrom, and placed upon the ground in and about the straw and stubble, and thereby — that is, by that means, or in consequence of that — allowed and permitted such fire to spread and burn over and through the stubble and straw into the field of the plaintiff, and burn up his property. The allegation that the fire was negligently taken and permitted to be taken *289 from the engine, and placed upon the ground in and about the straw and stubble, is connected with the statement that the defendants allowed and permitted it to spread and burn over and through the stubble and straw and into the field of the plaintiff by the word ‘ ‘ thereby, ’ ’ which, acccording to the definition given by the lexicographers, signifies “ by that means,” or “in consequence of that,” and therefore the pleading should be read as if it alleged that by means of or in' consequence of the negligence of the defendants in taking the fire from the engine and placing it upon the ground in and among the straw and stubble it was allowed and permitted to spread and burn over and through the field of Bergmann, and into the fields of the jffaintiff, and consume and destroy his property. This construction gives to the language of the complaint its ordinary and generally accepted meaning, while, to adopt the construction contended for by the plaintiff, it would be necessary to reject as surplusage words which are material, and which perform an important office in construing the pleading.

If the complaint had alleged that the defendants negligently omitted to extinguish the fire, and by reason of such negligent omission it was communicated to the stubble, and carried or spread into the plaintiff’s field, and destroyed his property, evidence that there was fire in the ashes some time after the defendants left the premises would perhaps have been sufficient to have carried the case to the jury; but the complaint does not charge the defendants with negligence in this particular, but in taking the fire from the engine, and placing it on the ground in and among inflammable material. In other words, the act of negligence charged is in placing the fire on the ground at an improper and unsuitable place, where it was likely to spread, and destroy the plaintiff’s *290 property, and not in negligently omitting to extinguish it after being so placed. In short, the allegations of the complaint are of positive acts of commission, and not of omission. Nor, as a matter of fact, is there any allegation that the defendants permitted or allowed the fire to spread, except as a result of the negligent act of placing it on the ground in and among the straw and stubble. The gist of the negligence charged in the pleading is in placing ashes containing fire in and among inflammable material, and the spread of the fire is averred as a consequence of such primary negligent act. It follows from these views that the court was in error in holding that the plaintiff could recover under the allegations of the complaint if the defendants were negligent in not extinguishing the fire before leaving the field, although they may not have been negligent in the operation of the engine, or in depositing the ashes on the ground at an unsuitable place. The judgment is therefore reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.