Opinion
6 Div. 293.
July 26, 1945.
Appeal from Circuit Court, Blount County; W. M. Rayburn, Judge.
Action for damages by S. G. Berry against Jefferson Lumber Company for setting out fire causing destruction of timber and impairment of fertility of soil. From a judgment for plaintiff, defendant appeals.
Affirmed.
Count one of the complaint is as follows:
"Plaintiff claims of the defendant the sum of One Thousand Dollars ($1000.00) damages for this that on or about August 25, 1943, plaintiff owned about 40 Acres of farm land and woodland on which was growing valuable timber, all in Blount County, Alabama, and on or about said date defendant by its agents or employees while acting in the line and scope of their employment negligently set fire to a tree in said County on, adjacent to, or near plaintiff's said lands and negligently allowed said fire to spread through the woods and brush near said tree and near plaintiff's said lands, and as a proximate result of such negligence, the fire was communicated to plaintiff's said lands, and burned and destroyed said timber and the forest mold beneath said timber, impairing the fertility of the soil and making it subject to erosion, to plaintiff's damage as aforesaid."
Charges given at the request of plaintiff, made the basis of assignments of error 28, 29 and 30, are as follows:
"8. Gentlemen of the jury, I charge you that if defendant was negligent in setting the fire, it is not relieved from liability by the fact that it exercised ordinary diligence in trying to prevent its spread.
"9. Gentlemen of the Jury, it is not important whether the defendant's negligence consisted in the time, or the manner, of starting the fire, or the means used to prevent its spread; if because of the defendant's negligence the fire was communicated to plaintiff's property, causing plaintiff damage, then plaintiff is entitled to recover.
"10. Gentlemen of the Jury, I charge you that one who sets a fire upon land which he owns or has in charge, even for a lawful purpose, is liable for the damages caused by the spread of the fire to the property or premises of another, if he has been guilty of negligence either in kindling the fire or in preventing its spread. The duty rests upon him to use ordinary or reasonable care in setting the fire and in keeping it under control, and this care must be in keeping with the danger reasonably to be anticipated, and is dependent upon the circumstances of each particular case. The fire should be kindled at a proper time, under ordinarily favorable circumstances, and in a reasonably prudent manner. A person or corporation is not at liberty to kindle fires, when on account of the conditions existing in the vicinity, it appears probable that damage to others will result, such as setting it in a dry season, or when the wind is strong or without guarding it sufficiently to prevent its spreading."
Plaintiff's given charge made the basis of assignment 25 is as follows:
"3. Gentlemen of the Jury: If from all the evidence you are reasonably satisfied the plaintiff is entitled to recover because of the matters alleged in his complaint, and that the timber or other growth described in his complaint was destroyed and that it had a definite value apart from the soil in which it grew, and if you further find that the land described was also damaged, you should award plaintiff damages both for the destruction of the growing things and also for the difference between the value of the land before the injury and its value after the injury."
J. T. Johnson, of Oneonta, for appellant.
A certified copy of a deed to land is not admissible in evidence, over proper and timely objection, unless it appears that the original has been lost or destroyed, or that the party offering the copy had not the custody or control of the original deed. Code 1940, Tit. 47, § 104; Driver v. Fitzpatrick, 209 Ala. 34, 95 So. 466; Berow v. Brown, 208 Ala. 476, 94 So. 772; Hammond v. Blue, 132 Ala. 337, 31 So. 357. Growing timber is a part of the realty, and is the same in that respect as the realty itself. Smyth Lbr. Co. v. Austin, 162 Ala. 110, 49 So. 875; Ray v. Hillman, 229 Ala. 424, 157 So. 676; Davis v. Miller-Brent Lbr. Co., 151 Ala. 580, 44 So. 639; Warrior Coal C. Co. v. Mabel Min. Co., 112 Ala. 624, 20 So. 918; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159. Where growing trees have been damaged or destroyed by fire, on account of alleged negligence of defendant, in any case, the measure of plaintiff's damage is the diminished value of the premises by reason of such damage or destruction of such trees. Southern R. Co. v. Slade, 192 Ala. 568, 68 So. 867; Howell v. Dothan, 234 Ala. 158, 174 So. 624; Granade v. United States Lumber Cotton Co., 224 Ala. 185, 139 So. 409. To recover, plaintiff must prove the negligence alleged in the complaint. If he alleges two distinct actions or failure to act when one would be sufficient, he thereby makes all averments of negligence material and must prove them as alleged. Pollard v. Rogers, 234 Ala. 92, 173 So. 881; Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; 1 Greenleaf Evi. § 5; Boone v. Chiles, 10 Pet., U.S., 177, 9 L.Ed. 388. Person who sets out fire on his own premises, or under his control, is liable only for injury or damage due to failure on his part to use prudence, reasonable care, and caution in kindling fire and keeping it from spreading on property of another. He is not an insurer and is not compelled at his peril to keep fire on his own premises. Putman v. White, 18 Ala. App. 15, 88 So. 355; Robinson v. Cowan, 158 Ala. 603, 47 So. 1018; Poe v. Southern R. Co., 196 Ala. 103, 71 So. 997. Defendant is not liable to any one for damage caused by an unavoidable accident. Hester v. Hall, 17 Ala. App. 25, 81 So. 361. Action for damages to trees on land owned jointly by tenants in common must be brought in name of all joint tenants. Pruitt v. Ellington, 59 Ala. 454; Southern R. Co. v. Hayes, 198 Ala. 601, 73 So. 945; Holder v. Elmwood Corporation, 231 Ala. 411, 165 So. 235.
M. F. Lusk, of Guntersville, for appellee.
Plaintiff's given charge correctly states the measure of damages. Atlanta B. A.L.R. Co. v. Brown, 158 Ala. 607, 48 So. 73; Foust v. Kinney, 202 Ala. 392, 80 So. 474. Negligence in setting the fire and allowing it to spread was clearly established. Code 1940, Tit. 8, § 207. The excerpt from the oral charge cannot be considered alone and without regard to its setting. If defendant deemed it misleading, he should have requested an explanatory charge. Edwards v. Massingill, 3 Ala. App. 406, 57 So. 400. Plaintiff, being a tenant in common, was entitled to recover in proportion to his interest. Besides, there was no plea in abatement. Birmingham R. L. P. Co. v. Oden, 146 Ala. 495, 41 So. 129; 62 C.J. 564. Injury to land which inconveniences the owner in its right and accustomed use, requiring time and expense to restore the land to its former condition, is a permanent injury. Howell v. Dothan, 234 Ala. 158, 174 So. 624.
The case went to the jury on count one of the complaint, which states a cause of action for negligence resulting in injury. It is not an action of trespass. In substance, count one charges that defendant's agents or employees, while acting in the line and scope of their employment, negligently set fire to a tree on, adjacent to, or near plaintiff's land, and negligently allowed said fire to spread to plaintiff's lands destroying his timber, and the forest mold beneath said timber, impairing the fertility of the soil and making it subject to erosion.
Defendant in the court below (appellant here) interposed two pleas: (1) "The defendant avers that the defendant is not guilty of the matters and things therein averred." (2) "That the plaintiff is not the owner of the land described in said count, and was not the owner thereof at the time of bringing the suit in this case." Demurrers to pleas 1 and 2 were overruled. The jury returned a verdict for the plaintiff in the sum of $517.50, and defendant appealed.
The evidence showed the following: The defendant at the time complained of was operating a sawmill in the community in which plaintiff's land was located. The season was very dry, and the grass, leaves, brush and woods were very dry. Some of defendant's employees were engaged in cutting logs in the woods, while others were engaged in operating the sawmill manufacturing the logs into lumber. At about nine o'clock in the morning of August 25, 1943, defendant's foreman, one R. D. Frazier, and other employees of defendant, felled a large tree which hit the ground about three feet from a nest of bumble-bees. One of defendant's employees was stung by the bees which swarmed out of the nest in such numbers as to interfere with the work of sawing the tree into logs. Defendant's foreman, Frazier, sprinkled fuel oil, or as described by some witnesses motor oil, on the grass, straw and leaves around or near the bees' nest and set fire to it. The fire grew to considerable size and spread along and around the top of the felled tree, some thirty-five to fifty feet from the bees' nest. Frazier and other employees of defendant beat with pine tops and stamped the fire to put it out. They also cleaned a space of approximately twelve feet in diameter around the bees' nest of all inflammable material, but this was done after the fire was kindled. They did not clean around the tree top. Frazier left the place of the fire about ten-thirty A. M. and went back to the sawmill, instructing other employees to watch the fire and to see that it was out before they left the woods. All of the employees left the woods about twelve o'clock noon, and went to the sawmill for lunch. They informed Frazier that the fire was out. They testified that they saw no further fire or sign of fire up to the time they left the woods for lunch. When they returned to the woods from lunch a forest fire was burning on approximately a hundred and fifty yard front, just north of the bees' nest. There was no unburned area between the bees' nest and the fire found burning after the lunch hour. Plaintiff's land was located about one-half mile distant from the bees' nest. On the day of the fire defendant's employees at the mill and in the woods numbered seventeen. Seven men worked at the mill in the afternoon and the others fought the fire until about five o'clock in the afternoon. Mr. Frazier, the foreman, helped fight the fire for a while in the afternoon, but returned to the mill and went home about five o'clock P.M. The fire spread to the lands of plaintiff and caused the damages sued for.
Appellant's assignment of error numbered one is based on the action of the trial court in overruling appellant's objection to the introduction in evidence of a copy of the record of a deed, certified to by the Probate Judge of Blount County as being a correct copy, conveying to appellee and his wife, Opal Berry, the lands here involved. The specific objection being that the absence of the original deed had not been sufficiently accounted for. There is no merit in the assignment. Under section 28, Title 47, Code of 1940, recorded deeds and copies of the record thereof, certified as being correct by the judge of probate of the county in which the deed is recorded, have the same force and effect, and the certified copy is admissible without accounting for the original deed.
Assignments of error numbered 2 to 14, inclusive, and assignments 24, 25 and 27, are grouped and argued together in brief. Where some of the unrelated assignments argued together in brief are without merit, the others will not be considered. Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784. Some of these exceptions are without merit, for instance, assignment numbered 14 is based on the trial court's refusal to exclude the certified copy of the deed above referred to. For the reasons stated, the evidence is admissible and the trial court did not err in not excluding it.
Written charges 8, 9 and 10, made the bases of assignments 28, 29 and 30 are not subject to the criticism directed at them. Conceding, without deciding, that count one states two causes of action, no objection is made for misjoinder: suing for two torts, and proving only one, affects only the extent of the recovery. Alabama Great Southern R. Co. v. Heddleston, 82 Ala. 218, 3 So. 53. In the instant case, it is not material which tort was sustained by the proof.
Appellant's assignment numbered 17 is predicated on the following excerpt from the court's oral charge, "So when people set fire out in the woods or anywhere on their place or on the place they have under their control, they are compelled at their peril to keep it there; that is a duty that the law enjoins on them." Other portions of the court's oral charge limit the peril under which appellant was compelled to keep the fire on the premises under its control to the negligence alleged in the complaint, on which appellant had taken issue. Edwards v. Massingill, 3 Ala. App. 406, 57 So. 400. The case should not be reversed on the oral instruction given, and to which exception was reserved. At most, it was merely subject to explanation, if the appellant had so requested in writing. Pollard v. Rogers, 234 Ala. 92, 173 So. 881.
In arguing assignment of error 25, appellant insists that the proper measure of damages in this case is the difference in the value of the land before and after the fire. In the case of Atlanta Birmingham A. L. Ry. Co. v. Brown, 158 Ala. 607, 614, 48 So. 73, 75, this Court said:
"It is true that the general rule is recognized in this state that, in an action for trespass to the land itself, the difference between the value of the land before and after the trespass is the measure of the damage. Brinkmeyer, et al. v. Bethea, 139 Ala. 376, 35 So. 996. This is not an action of trespass, but an action for negligence resulting in injury. The true rule is said to be that 'if the thing destroyed, although it is part of the realty, has a value which can be accurately measured and ascertained, without reference to the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing thus destroyed, not the difference in the value of the land before and after such destruction.' Whitbeck v. N.Y.Cent. R. R. Co., 36 Barb., N.Y., 644-647. This rule is applied to crops, grass, fruit trees, etc. Byrne v. Minneapolis, etc. Railway, 38 Minn. 212, 36 N.W. 339, 8 Am.St.Rep. 668; Railway v. Horne, 69 Tex. 644, 649, 9 S.W. 440; Galveston H. S. A. R. v. Rheiner et al., Tex.Civ.App., 25 S.W. [971], 972; Berard et al. v. Atchison, etc. R. [ 79 Neb. 830], 113 N.W. 537; Gresham v. Taylor, 51 Ala. 505. Our own court has said: 'If the trespass consisted of a severance of a part of the freehold from the rest, for instance, growing timber or minerals, the value of the thing severed, while it constituted a part of the freehold at the time of severance, and not as a chattel after severance, may be regarded as a proper measure of recovery' (Warrior, etc., Co. v. Mabel Mining Co., 112 Ala. [624], 626, 20 So. 918); and again, in a case where damages were claimed for a continuing trespass, that 'the difference in the value' before and after the trespass 'is an improper measurement of damages,' although it might be competent evidence, to be considered by the jury in connection with the other evidence (Abercrombie Williams v. Windham, 127 Ala. [179], 180, 182, 28 So. 387). Where there is damage to the land, and also destruction of property attached to the land capable of ascertainment as to its value, recovery may be had for both. Receivers, etc. v. Pfluger, Tex.Civ.App., 25 S.W. 792; Ft.Worth, etc. R. v. Wallace, 74 Tex. 581, 12 S.W. 227."
See, also, Foust v. Kinney, 202 Ala. 392, 80 So. 474.
Here the value of the trees destroyed was capable of ascertainment without reference to the soil in which they grew. The damage to the soil itself was also ascertainable, and the appellee was entitled to recover for both.
Without dispute, the evidence shows that S. G. Berry, the appellee, was a tenant in common of the property involved, owning a one-half undivided interest therein: his wife Opal Berry owned the other undivided half interest. The court properly instructed the jury that appellee could not recover the damage done to the wife's interest. Appellee could sue for and recover his proportionate share of the damages suffered. Lowery v. Rowland; et al., 104 Ala. 420, 16 So. 88; Birmingham R. L. P. Co. v. Oden, 146 Ala. 495, 41 So. 129.
The trial court did not err in refusing the general charge requested by appellant, nor in its refusal to grant a new trial. After a careful examination of the record, we are unable to say that the verdict of the jury and the judgment rendered thereon is excessive.
The cause is due to be and is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and SIMPSON, JJ., concur.