Opinion
No. 40572.
November 18, 1957.
1. Landlord and tenant — negligence — fire loss allegedly caused by tenant's negligence — burden of proof.
In landlord's action against tenant to recover for fire loss alleged to have been proximately caused by tenant's negligence, plaintiff had burden of showing that defendant had been negligent and that such negligence had been proximate cause of fire.
2. Landlord and tenant — negligence — fire loss allegedly caused by tenant's negligence — instruction invoking doctrine of res ipsa loquitur — properly refused.
In such case, requested instruction attempting to invoke doctrine of res ipsa loquitur was properly refused.
3. Landlord and tenant — negligence — fire loss — evidence sustained finding that tenant had been guilty of no negligence proximately causing fire.
Evidence sustained finding that defendant had been guilty of no negligence proximately causing fire and the resultant damage.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Albert Sidney Johnston, Jr., Biloxi, for appellant.
I. The doctrine of res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. 22 Am. Jur., Sec. 76 p. 643; 32 Am. Jur., Sec. 783 p. 669; Anno. 33 A.L.R. 2d pp. 791, 832-33; 20 R.C.L. 187.
Morse Morse, Gulfport, for appellee.
I. The doctrine of res ipsa loquitur does not apply. Roell v. Brooks, 205 Miss. 255, 38 So.2d 716.
Mrs. A.N. Bush sued John Laux, one of her tenants, to recover damages for the loss of the rental property by fire, alleged to have been proximately caused by his negligence. The jury found a verdict for the defendant, and, from the judgment entered thereon, Mrs. Bush appealed.
(Hn 1) Under Roell v. Brooks, 205 Miss. 255, 38 So.2d 716, and Miller v. Miller, 217 Miss. 650, 64 So.2d 739, the plaintiff had the burden of showing that Laux was negligent and that such negligence was the proximate cause of the fire. The given instructions conformed to that principle. (Hn 2) The appellant's requested instruction, which attempted to invoke the doctrine of res ipsa loquitur, was properly refused.
(Hn 3) Since the evidence was in conflict, it is not necessary to detail it pro and con. It is sufficient to say that the jury was fully warranted in finding that the defendant was guilty of no negligence proximately causing the fire with the resultant damage.
No reversible error appears in the record, and the cause is therefore affirmed.
Affirmed.
McGehee, C.J., and Holmes, Arrington, and Ethridge, JJ. concur.