Lieuallen v. Mosgrove, 61 P. 1022

Lieuallen v. Mosgrove

61 P. 1022 | Or. | 1900

Mr. Chief Justice Bean

delivered the opinion.

This is an action to recover damages for loss of property caused by fire, alleged to have been the result of defendants’ negligence. The case was reversed at a former term because the plaintiff was allowed to recover *448upon a ground of negligence not alleged : Lieuallen v. Mosgrove, 33 Or. 282 (54 Pac. 200, 664). After the cause had been remanded to the court below,' the plaintiff was permitted to amend his complaint by alleging that the defendants were negligent, not only in depositing the ashes and cinders at a place where the fire contained therein would be liable to communicate to inflammable material, but also in failing to exercise due care and caution in caring for and extinguishing the fire after it had been deposited on the ground. The allowance of such amendment is the first assignment of error relied upon.

1. It must be regarded as settled in this state that the court may, before trial, allow a pleading to be amended by inserting a new cause of action or defense, if it is germane to and connected with the subject-matter of the controversy : Baldoch v. Atwood, 21 Or. 73 (26 Pac. 1058); Talbot v. Garretson, 31 Or. 256 (49 Pac. 978). And the trial court has power and authority to allow such an amendment after reversal on appeal whenever this court does not make a final disposition of the cause, but remands it to the court below for further proceedings : Powell v. Dayton, etc. R. R. Co. 14 Or. 22 (12 Pac. 83); Fowle v. House, 30 Or. 305 (47 Pac. 787). It is equally well settled that the ruling of a trial court in refusing or permitting an amendment to a pleading will not be disturbed on appeal, unless there was a plain abuse of discretion, to the material injury of some substantial right of the appellant: Foster v. Henderson, 29 Or. 210 (45 Pac. 899); Davis v. Hannon, 30 Or. 192 (46 Pac. 785). The court, therefore, had power and authority to allow the amendment complained of, and, as there does not seem to have been any abuse of discretion, its ruling in reference thereto will not be disturbed.

2. The amendment is not, as counsel argue, such a *449departure from the original complaint as to amount, in effect, to a new and wholly different cause of action. It does not change the substantial controversy between the parties. The real purpose of the action is to recover such damages as plaintiff may have sustained from the destruction of his property, by fire, caused by the negligence of the defendants. The amendment was germane thereto, and tendered an issue on a material fact arising out of the transaction which forms the basis of plaintiff’s action, and was entirely proper. As said in Talbot v. Garretson, 31 Or. 256 (49 Pac. 978): “So long as the amendment is germane to the subject-matter of the controversy, we can see no objection to the court, in the exercise of a sound discretion, allowing the pleadings to be amended in furtherance of justice by inserting new and additional allegations material to such controversy, although they may, in effect, constitute a new cause of action or defense.”

3. The next assignment of error is predicated upon the overruling of defendant’s motion for a nonsuit, and the refusal of the court to instruct the jury to return a verdict in favor of defendants on account of a failure of proof. The evidence shows that during the harvest season of 1897 defendants were engaged in operating a threshing machine, the motive power of which was a straw-burning engine, so constructed that the only method of removing ashes or cinders therefrom was by a trapdoor in the bottom of the ash pan, swung on a rod through the center, so that by tipping it the ashes could be dumped on the ground. In the forenoon of August 7 the defendants were threshing in the field of one Bergevin, adjoining that of plaintiff, and during that time dumped the ashes or cinders from the engine on the ground several times. The day was calm, hot, and sultry until evening, *450when a wind arose, and caused a fire, which started at or near the place where the engine stood, to communicate to the stubble and inflammable material, sweep oyer Bergevin’s field, and into the adjoining field of plaintiff, and burn up and destroy large quantities of wheat, straw, and stubble pasture belonging to him. It seems quite probable, from the physical facts, that the fire originated in the ashes and cinders which had been dumped from the defendants’ engine, and the witnesses Wood and McFarland testify that they examined the cinder pile on the evening of the fire, and found live embers in it. This evidence at least tends to show that the' defendants did not extinguish the fire in the ashes or cinders before leaving the field, and for this reason a fire subsequently broke out, and destroyed the plaintiff’s property. And while, as said in the former opinion, “ 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” (Lieuallen v. Mosgrove, 33 Or. 282 (54 Pac. 200, 664), they were bound to exercise reasonable care and diligence to extinguish the fire, or take other reasonable precautions to prevent it from igniting the stubble and other dry and combustible material, and thus destroying the adj acent property. Whether they exercised such care was, under the testimony, a question of fact for the jury, and the court committed no error in overruling the motion for a nonsuit: 13 Am. & Eng. Enc. Law (2 ed.), 491; McClelland v. Scroggin, 48 Neb. 141 (66 N. W. 1123) ; Hanlon v. Ingram, 3 Iowa, 81; Hewey v. Nourse, 54 Me. 256.

4. It is also insisted that the court erred in permitting the witness Coppock to answer the following question: “State whether or not a high wind usually follows, during the month of August, a close, sultry afternoon. ” The witness had previously testified that he had lived in that *451section of the country for many years, was acquainted with climatic conditions during the harvest season, and that the afternoon preceding the fire had been close, hot, and sultry. We think, under such circumstances, the question, and affirmative answer thereto, were proper and competent. The dryness of the season, the proximity to the engine of dry, combustible material, easily ignited, and the probability of a wind coming up, were proper matters to be considered by the jury in determining whether the defendants, under the surrounding circumstances, used the requisite degree of prudence and caution to prevent the fire from communicating to and destroying the adjoining property. They were using a dangerous element, under circumstances of special danger to adjacent property, and were therefore required to exercise care and vigilance commensurate with such danger; and, in this connection, the probability or likelihood of a wind arising was important: 13 Am. & Eng. Enc. Law (2 ed.), 418 ; Needham v. King, 95 Mich. 303 (54 N. W. 894); Salisbury v. Herchenroder, 106 Mass. 458 (8 Am. Rep. 354); Kellogg v. Chicago & N. W. Ry. Co. 26 Wis. 223 (7 Am. Rep). 69. The defendants had resided in that section of the country for several years, and were necessarily familiar with the climatic conditions, and if a wind was liable to blow in the evening, and thus greatly enhance the danger from any fire that might be left in the ashes or cinders, they were bound to increase their care on that account. The line of liability is drawn in some of the adjudications between cases where the operation of a wind has been usual and ordinary, and where it has been extraordinary, or of a nature entirely unexpected; the defendant being held responsible in the former instance, but not in the latter. But it was not sought by the testimony of Coppock, as we understand it, to make the defendants liable for an extraordinary or unprece,*452dented wind, but only on account of tbe intervention of that which was usual and ordinary.

5. Again, it is argued that the court erred in permitting the witness Kinney to show, on a map used at the trial, the place where another fire from defendants’ engine occurred on the same day. Kinney was the engineer in charge of the engine on the day of the fire. On direct examination, he testified to the care and caution exercised by himself and defendants’ other servants and employees in caring for and extinguishing the fire in the ashes or cinders taken from the engine, and on cross-examination stated that at the setting where the fire is claimed to have originated they used more caution than usual because of some previous fire. It was on account of this statement that he was interrogated by counsel as to the location of the previous fire, and we think it was proper cross-examination.

6. The next assignment of error is predicated upon the giving by the trial court of the eighteenth and twenty-first instructions. These instructions are very long, but it is only necessary to call attention to the objectionable parts pointed out by appellants in their brief. In the eighteenth the court said that a person who negligently sets or keeps a fire on his own land, or permits it to escape therefrom through negligence, is liable to his neighbor for injuries caused thereby, whether he might reasonably have anticipated the particular manner of its communication or not. And again, “In determining the question of diligence, you have a right to take into consideration the dryness or dampness of the atmosphere and the earth, the strength and probable direction of the wind,” etc. In the twenty-first, the court, among other things, said: “Among other circumstances, you may consider the time of year when the fire occurred; the business in which defendants were engaged when it oc*453curred ; what, if any, probability there then was of winds arising.” The objection urged to these instructions is that the court meant to have the jury understand that defendants were liable for the result of any extraordinary wind that might occur. But we do not think this is a reasonable or fair interpretation of the instructions. The court evidently intended to, and did, state to the jury the rule of law already indicated, that the question of reasonable care and diligence must be determined from the circumstances, and in a measure depend upon the facts of each particular case.

7. The remaining assignments of error are based upon the refusal by the trial court to give divers and sundry instructions requested by the defendants. We have examined and compared the instructions refused with those given, and are of the opinion that the instructions refused were substantially covered by the general charge. It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.