Boyd v. Rice

Cooley, J. Rice sued the plaintiffs in error in trespass, and declared “for that whereas on &c., at &c., the said defendants did negligently permit fire to pass from the premises of the said James Boyd, being fire which the said defendant William Boyd had there started, which fire the said defendants did negligently permit to pass from the grounds of the said James Boyd, to wit, &c., to the land of one Ann Baber, and from thence to the land of one Orlando Bice, to wit, &c., which said fire so allowed to escape by the said defendants did .then and there upon the land last described burn up and destroy thirty-one and one-half cords of wood of great value, to wit, the value of forty dollars of the property of said plaintiff. And said plaintiff avers that said fire was so negligently allowed to pass from the grounds of said James Boyd by the said defendants in violation of the provisions of section one of chapter 255 of the Compiled Laws of 1871, whereby said defendants became and are liable to said plaintiff in double damages sustained by him, to wit,” &c. • The facts in proof were that defendant William Boyd was the hired servant of James Boyd, employed upon his farm, and that while so employed, without directions so to do, and while his employer was absent from the State, he set fire to a stubble, and this spread to the adjoining lands, and at length reached and burned up the plaintiff’s wood. No personal fault is attributed to James Boyd, but his liability is grounded on the doctrine respondeat superior. The statute under which the action was brought is as follows: “ Every person who shall willfully or negligently set fire to any woods, prairies, or grounds not his own [601] property, or shall willfully or negligently permit any fire to pass from his own woods, prairies or grounds, to the injury or destruction of the property of any other person, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both, in the discretion of the court; and shall also be liable to the party injured, in double the amount of damages sustained.” Comp. L., § 7790. It is not pretended that there is any liability in this case except for negligently permitting the fire to pass from the premises of James Boyd to the premises of Orlando Bice where the wood was burned. But while the defendant William Bice might be subject to an action at the common law for his. negligence, it seems plain that he cannot be liable under this statute. It was not from his premises that the fire was negligently permitted to spread, and this statute carefully restricts its penalties to him who willfully or negligently permits the fire to pass from “his own woods, prairies or grounds” to the injury of another.. William Boyd was not within its provisions. But it is quite as plain that James Boyd was not liable for the act of William Boyd, of which-he had no knowledge, and for which it is not pretended he was in fault. The private action for the recovery of double damages is only given where the misdemeanor has been committed, and there is no misdemeanor where the owner . of the land has' had no knowledge of the fire, and cannot be charged in respect to it with either willfulness or negligence. He also may have been responsible at the common law for the fault of his servant, but the penal consequences are only imposed by this statute where there has been personal fault. To preclude all misapprehension it is proper to say that no negligence is attributed to James Boyd in the [602] employment of an unsuitable person as servant, or in trusting the care of his farm with such a person. The judgment must be reversed with costs, and a new trial ordered. The other Justices concurred.