Roberson v. . Morgan

Furches, J.: This action seems to have been brought and tried under Sections 52 and 53 of The Code. It is admitted in the statement of the case ou appeal that plaintiff and defendant are not adjacent land owners. This being so, Sections 52 and 53 do not apply, and plaintiff’s action cannot be maintained under the statute. But it was argued here that, if it cannot be maintained under the statute, it may be as at common-law. To this the defendant'objected that the complaint does not allege a common-law liability, in that it failed to allege negligence. And it is plain enough that the complaint was not framed with a view to a common-law liability, and does not in terms allege negligence. Yet, we are of opinion that negligence is in effect alleged in the allegation that “ defendant wilfully permitted ” the fire to spread over and burn plaintiff’s fencing, &c., and that under the liberality of The Code practice, as construed in Stokes v. Taylor, 104 N. C., 394, and Fulps v. Mock, 108 N. C., 601, the complaint might be sustained, as stating a common-law cause of action. And if the case had been tried on this theory and there had been no other errors in the trial, we would affirm the judgment. There should be allegata as well as probata. Smith v. B. & L. Asso., 116 N. C., 102. *995 But defendant alleges that he had an agreement with plaintiff to put out the fire, and plaintiff agreed to look after and take care of his lands. And from the evidence sent up as a part of the case on appeal, it appears that defendant introduced evidence tending to establish this allegation. And defendant makes this as one of his assignments of error, that the court did not give him the benefit of this evidence in his charge. It does not appear that defendant requested the court to charge upon this evidence, which he should have done, if he wanted the benefit of an exception. But it appears to us that the case was tried under the conception that defendant was liable, if liable at all, under Sections 52 and 53 of The Code, which was an error, and that it has not been presented to the jury and tried as a common-law liability, in which the parties were put squarely at issue upon the correct theory of the case. If plaintiff did agree with the defendant that he should put out the fire, and that plaintiff would look after and take care of his premises, he should not recover. Roberson v. Kirby, 7 Jones, 477. It may be that when the case goes back for a new trial plaintiff will, by leave of court, amend his complaint so as to make it more in conformity with the rules of pleading, as a common-law action. We are of the opinion there should be a new trial. New Trial.