Edwards v. Massingill

PELHAM, J. The two separate suits brought in the justice of the peace court by appellee were by agreement consolidated and tried as one case on one complaint in the circuit court, where judgment was rendered against appellant, from which this appeal is prosecuted. The consolidated complaint filed in the circuit court contained five counts, and the case was tried on pleas of the general issue to each of the counts. The first count of the complaint claims punitive damages, and in this count it is alleged that defendant willfully set fire to and destroyed 572 panels of the plaintiff’s rail fence. The evidence shows that the appellant was in possession of the property on which the fire was started, or “set out,” and Avas engaged in' running a turpentine business for the purpose of getting crude turpentine, and that the fire was set out in this turpentine orchard for the purpose of burning off the woods to prevent the turpentine orchard from being injured by subsequent fires, as was usual and customary in connection with the work in which appellant Avas engaged. The lease under which the turpentine operations were carried on was made to C. W. Edwards, a brother of the appellant, and the appellant seems to have taken over the business Avithout a written transfer of the lease, but whether appellant was in possession and conducting the' business in his own right as transferee of his brother, or by permission of his brother, makes no difference under the issues involved, as he was in the rightful possession and [410] working the trees for turpentine purposes, and his right to conduct the operations on the land was not a matter of dispute on the trial. The fire thus started on the premises under control of appellant and of which he was in possessin under a “turpentine lease” either as the transferee or by permission of his brother as the owner of the lease, spread to and burned over on the adjoining premises of appellee and destroyed some of his property, consisting of a part of his fence, stalls, etc. The appellant, it seems, intrusted the burning of the woods to his employees, and the evidence is in conflict as to whether the appellant, or his employees, were guilty, under the circumstances, of negligence, in the first instance, in setting the fire out; and, secondly, in not keeping the fire confined to appellant’s premises, and in allowing it to spread to the adjoining land and burn and damage appellee’s property. There is, however, no evidence contained in the bill of exceptions tending to show that appellant willfully set fire to and burned the appellee’s fence as alleged in the first count of the complaint. This count of the complaint is in trespass, and there was no evidence to support it, or to authorize the submission of the recovery of punitive damages to the jury under its averments. The fact alone that appellant gave orders to set out the fire for ■ legitimate and proper purposes on land under his control, or that the fire was .personally started by him under such circumstances is not sufficient in itself, without some element of gross negligence attending the act, to entitle the appellee to recover punitive damages, or smart money. The evidence shows no design, purpose, or intent on the part of appellant or his employees to inflict the injury or loss on appellee, nor any wanton or malicious conduct on the part of any of them amounting to a reckless indifference to- conse [411] quences such as would make the appellant liable to respond in punitive damages. The setting of the fire and the failure to confine it to appellant’s own premises was characterized by no act, nor was it done under circumstances such as would amount to more than simple negligence, so far as shown by the evidence set out in the bill of exceptions; and certainly did not constitute a trespass as averred in the first count of the complaint. The value of the damage suffered varied under the estimates given by different witnesses from six or eight dollars to an amount in excess of the sum claimed in the complaint, and, the verdict being for fifty dollars, we are unable to say whether or not a recovery was had for punitive or exemplary damages under the first count of the consolidated complaint, and the court committed error that must work a reversal of the case in refusing the general charge requested in writing by appellant on the first count of the complaint.—B’ham Water Wks. Co. v. Wilson, 2 Ala. App. 581, 56 South. 760; Snedecor v. Pope, 143 Ala. 275, 39 South. 318; B. R. L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342; Peters v. So. Ry. Co., 135 Ala. 533, 33 South. 332; B. R. L. & P. Co. v. Franscomb, 124 Ala. 621, 27 South. 508; B. R. L. & P. Co. v. Bowers, 110 Ala. 328, 20 South. 345. There was sufficient evidence to submit to the jury the question of appellant’s liability under each of the other four counts of the complaint; but, as the case must be-reversed for the error pointed out, it is not necessary to give extended discussion to the other assignments of error. The question asked the witness Jernigan was leading and did not specify the time; the witness had testified he had not seen the place for two or three years, and the opinion sought to be elicited was shown to be based on information too remote, uncertain, and indefinite. [412] There was no error in giving charge No. 1 requested by appellee. While it is true that where one lawfully and prudently kindles a fire on his own premises for a legitimate purpose and with a good motive to serve his business or domestic use, in the absence of negligence in its setting out or management, he is not liable to his neighbor for damage that may be occasioned from the fire, yet it is also true that a person who sets out a fire is responsible for injury or damage due to failure on his part to use prudence and reasonable care and caution in kindling the fire and keeping it from spreading to the lands of another. The charge limits the “peril” under which the appellant was compelled to keep the fire on his own premises to the negligence averred in the complaint, on which the appellant had taken issue. If the appellant deemed the charge misleading in this particular, •it was his duty to have asked an exlanatory charge.—Hammond v. State, 147 Ala. 79, 41 South. 761; Vandiver v. Walker, 143 Ala. 411, 39 South. 136; Daniel v. Bradford, 132 Ala. 262, 31 South. 455; Evans v. State, 120 Ala. 269, 25 South. 175; Abraham & Bro. v. Nunn, 42 Ala. 51. The evidence in many particulars was in conflict as to appellant’s connection with the fire, and the appellee should not have been allowed to testify that appellant “acknowledged that his fire burned the fence.” The statement was a conclusion or impression made on the mind of the witness from what was said, and he should have been required to state the conversation and allow the jury to draw the conclusion, unaided by the conclusion or inference drawn by the witness.—Knight v. State, 160 Ala. 58, 49 South. 764; A. B. & A. Ry. Co. v. Brown, 158 Ala. 607, 48 South. 73; City of Anniston v. Ivey, 151 Ala. 392, 44 South. 48; B. R. L. & P. Co. v. [413] Randle, 149 Ala. 539, 43 South. 355; W. U. Tel. Co. v. Merrill, 144 Ala. 618, 39 South. 121, 113 Am. St. Rep. 66. For the errors pointed out and discussed above, the case must be reversed. Reversed and remanded.