Lamb v. . Sloan

MerrimoN, J. (after stating the facts). The plaintiff does not seek by this action, to recover damages from the defendant on the ground that the latter so negligently and carelessly set fire to, and burned the woods on his own land, as that the fire communicated with and burned the woods on the adjoining land of the former. It is not his purpose to obtain redress for the breach of a common law right. The action is founded upon the statute (The Code, §§52, 53), set forth above. This statute is remedial as well as penal and criminal. Its purpose is, to prevent any person from setting fire to any woods not his own; and not to his own, without first giving at least two days’ notice of his purpose to the owners of adjoining woodlands', so that they may be prepared to encounter and resist successfully, possible danger to their woods and property from such fire. And if such notice shall not be given, the statute in that case, gives the party injured specially, a right of action, whereby he may recover such actual damage as he shall sustain from the fire, at all events, and without regard to whether or not the defendant was negligent or careless in setting the fire to his own woods and controlling the same. The wilful firing of the woods, without *537 notice, in the case provided for, is made the ground of this action, in favor of the party injured, and therefore it is, that he may waive the notice, and thus lose this right of action, as was decided in Roberson v. Kirby, 7 Jones, 477. Hence also, if the firing were of necessity, as if it were necessary for the protection of the property of the person setting fire to his own woods, such cause of action would not arise, because the firing would not be done wilfully in the sense of the statute. Tyson v. Roseberry, 1 Hawks, 60. Such waiver of notice could not however, affect the penalty incurred, or the misdemeanor committed, by a wilful violation of the statute. These are intended to effectuate the public purpose of the statute, aud no one has a right to waive notice as to them. Wright v. Yarborough, Term R. 763 (687), Roberson v. Kirby, supra. It was not sufficient that the defendant “gave directions to one of his agents, (his clerk), to employ hands to look after the fire, so as to prevent its spreading.” Having set fire to his woods, without first having given the plaintiff at least two days’ notice thereof, he made himself liable for such damages as the latter sustained by the spread of the fire to and upon his adjoining woodland. Reasonable diligence on the part of the defendant in his efforts to keep the fire under control, would not relieve him from this cause of action ; he made himself responsible at all events for the harm his fire did the plaintiff. The very purpose of the statute was to give the plaintiff a right of action, in which the defendant could not defend himself successfully, by showing reasonable care and diligence on his part, in respect to the fire, as he might do, if the plaintiff had sued for a breach of his common law right. Otherwise, the statutory right of action would be nugatory. At common law, the plaintiff could maintain an action for such injury, if the defendant could not show that he exercised reasonable care and diligence in setting fire to his woods, and in controlling the fire after it was set. *538 The statute intended to give an additional right of action and remedy. Accordingly it was clearly not competent for the defendant to prove that the plaintiff had sued him for, and recovered the penalty, and that he had been indicted for the misdemeanor, the plaintiff being the prosecutor, under the statute. As we have said, these were intended to effectuate its public purpose. The plaintiff could only recover in this action actual damages. There are some cases in which the plaintiff may recover vindictive damages, and the defendant may show in mitigation of such damages, that he has been convicted and punished for the offence out of which the plaintiff’s cause of action arose, but obviously, this is not such a case. Smithwick v. Ward, 7 Jones 64. No question was raised as to the wilful purpose of the defendant. This seems to have been conceded. Indeed, as he admitted that he set fire to his woods, adjoining the lands of the plaintiff, and gave no notice in that respect, nothing else appearing, the law implied the intent. In looking through the record, we find that the issues of fact raised by the pleadings, were not reduced to writing and set forth in the record, and the verdict of the jury is, that they “find all issues in favor of the plaintiff.” This is, as we have repeatedly said, bad practice, that the Courts ought not to tolerate in any case. If the defendant had objected at the trial, on this account, it is clear that he would have been entitled to a new trial. Bowen v. Whitaker, 92 N. C., 367. No error. Affirmed.