Brinkman v. Bender

92 Ind. 234

• Court: Indiana Supreme Court
• Decided: November 15, 1883
• Docket: No. 10,485
• Status: Published

Opinion

Best, C.

The appellee brought this action to recover such ■damages as he had sustained in consequence of the destruction of his property by fire, set by the appellant.

Issue, trial, verdict and judgment for the appellee.

The error assigned is that the complaint does not state facts sufficient to constitute a cause of action.

The complaint, after alleging that the appellee owned certain described lands, averred, in substance, that the “ defends ant carelessly and negligently set out fire upon the lands of one Bennett, adjoining plaintiff’s lands; that the grass growing where said fire was set was dry, combustible and extended to the plaintiff’s lands; that said fire communicated with the premises of plaintiff, burnt and destroyed one thousand rails for him of the value of $50; destroyed an acre of grass of the value of $10, and burned the turf in his meadow to his damage $60; that said fire was not caused by any negligence ■on the part of the plaintiff, but that he used all means in his power to extinguish it and avoid the loss; that said fire was wholly the fault and negligence of the defendant, and by reason of the same the plaintiff has been damaged in the sum of $100.”

The appellant insists that it is not averred that he negligently suffered the fire to escape, and for want of such averment, the complaint is insufficient, as was held jn Pittsburgh, etc., R. W. Co. v. Culver, 60 Ind. 469, and in case of Pittsburgh, etc., R. W. Co. v. Hixon, 79 Ind. 111.

In this conclusion he is mistaken, as the concluding charge ■of this complaint avers that the fire was caused wholly by his fault and negligence. This charge is broad enough to impute negligence to everything he did or suffered to be done, as was expressly decided in the case of Pittsburgh, etc., R. W. Co. v. Jones, 86 Ind. 496 (44 Am. R. 334), and in the case of Louisville, etc., R. W. Co. v. Hanmann, 87 Ind. 422. Upon the authority of these eases this complaint must be deemed sufficient.

No other objection is made, and as this one is not well taken, the judgment should be affirmed.

Per, Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it-is hereby in all things affirmed, at the appellant’s costs.