Opinion
February 14, 1949.
1. Landlord and tenant — damage to leased building — liability of tenant for negligence.
Sec. 898, Code 1942, relieving tenant of rent or repairs when leased building has been destroyed or damaged by fire unless by tenants's fault or unless he expressly contracts to be so bound, does not change the common law as to tenant's liability for his negligence.
2. Landlord and tenant — damage by gas heater — burden of proof.
In an action by landlord against tenant to recover damages to leased building by fire alleged to have been caused by a gas heater negligently placed and maintained by the tenant, the burden of proof is on the landlord to show by a preponderance of the proof that the defendant did not use reasonable care in the maintenance of a reasonably safe gas heater, and that such failure was the proximate cause of the fire and the resulting damage; and when the burden is not supported by substantial evidence, a peremptory charge for the defendant ought to be given.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Attala County; J.P. COLEMAN, J.
Harmon W. Broom, for appellant.
The plaintiff wholly failed to establish negligence on the part of the defendant. The heater was left on by the person who closed the store at about 6:00 P.M. on the night of the fire and the fire occurred some two hours later. The record speaks for itself as to the safe construction of the heater, being constructed of vitrified fire brick on the back part of the heater, and the defendant testifying that after the fire the heater was cleaned and again placed in operation. The plaintiff's witnesses attempted to show that the stop valve on the heater was faulty but admitted on cross-examination that if such was in fact the case, it could have been caused or brought about in fighting the fire. Further the heater had been in operation for a number of months in the same location and was, after cleaning, again placed in operation. The defendant, upon instruction by the court, examined a heater of similar construction in operation in the jury-room of the court house and which was closer to the wall by a foot and a half than the heater alleged to have caused the fire.
Perhaps the strongest case on record in Mississippi of a situation as analagous to these circumstances is Oktibbeha County Cotton Warehouse Co. v. J.C. Page Co., (1928) 151 Miss. 295, 117 So. 834.
And the defendant contends that the mere fact that a heater was left burning does not constitute negligence. It is well known that during periods of extreme cold many homes and businesses have fires continuously burning. It is not negligence to leave a heater burning for several hours while one is absent from a building. It is, in fact, a common occurrence and recognized as such in this day of safety construction of appliances.
As the court said in Oktibbeha County Warehouse Co. v. Page, supra, page 836: "Common human experience teaches us that negligence may not be based on trifles, but must be based upon those things which should arouse the attention of a reasonably prudent person in the care of his own goods."
It is the contention of the defendant that in this day and age the attempt of the plaintiff to spell out negligence on the basis of their testimony is indeed a "mere trifle".
This court has repeatedly declared that the failure to anticipate remote possibilities does not constitute negligence. In Shuptrine et al. v. Herndon, (1938) 182 Miss. 315, 180 So. 620, 622, quoting Judge McGowan in Illinois Central Railroad Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333, 336, as follows: "Precaution is a duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand that a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. Care or foresight is not to be weighed on jewelers' scales, nor calculated by the expert mind of the philosopher, from cause to effect, in all situations. Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected. Remote possibilities do not constitute negligence from the judicial standpoint."
From this accurate statement of the term and its application the defendant maintains that plaintiff failed to show any possible reason for apprehension on the part of the defendant that a stove so constructed, installed, and in use for such a long period in the same surroundings before and after the fire should demand prevision on the part of the defendant or cause the defendant to anticipate an unusual, improbable, or extraordinary occurrence as the theory of the plaintiff's testimony indicates. In this respect the defendant would here point out that if the stop valve of the stove was in fact faulty, the plaintiff wholly failed to show that the defendant had knowledge of such fault or defect. And if it was in fact defective at the time plaintiff's witnesses declared it to be, immediately after the fire, that such defect cannot be said to have existed immediately before the fire, and even if so shown to actually have been is yet that "unusual, improbable, and extraordinary occurrence" about which Judge McGowan, quoted above, was speaking.
Thus having shown that the fire was not due to the negligence or wilfulness of the defendant, it becomes evident that the fire and resultant damage were not the "fault" of the defendant.
Crawley Ford, for appellees.
Let us apply the tests of negligence in an effort to ascertain whether or not the defendant was negligent in this instance. Certainly the defendant and appellant owed the plaintiffs and appellees the duty of exercising reasonable care in preventing a fire hazard to prevail on the premises and he was under a duty to use reasonable care in maintaining the heater and the immediate surroundings in such a condition that fire would not result. Assuming then that the defendant was under a duty to use reasonable or requisite care, we shall see what the term reasonable or requisite care implies. This court in Roberts, et al. v. Miss. Power Light Co., et al., 10 So.2d 542, has prescribed the test of reasonable care in the following language: "The measure of prudence which is an element of the definition must in turn involve reasonable probabilities according to normal human experience. Such probability in turn involves not an absolute prescience but a degree of foreseeability which consists with normal experience and observation and which should equip the party sought to be charged with a prudence that envisages harm as a reasonable likelihood." Again in Algood v. United Gas Corp., 37 So.2d 12, this court prescribed the test of reasonable care: "Injury does not, of itself, imply liability, nor danger negligence; nor does causal connection establish, of itself, legally proximate cause. Reasonable foreseeability remains the only just and dependable test." A defendant then is liable for those consequences which he should have reasonably foreseen as something likely to happen — those which under the circumstances so nearly approached a probability as to be characterized as likely to happen. Certainly the defendant's agent should have reasonably foreseen that a fire resulting from leaving a gas heater burning within three to six inches of a collection of loose paper was something likely to happen and according to the usual course of the very nature of the situation involved. The defendant's agent therefore did not use that degree of care which he was under a duty to use in maintaining the premises of the plaintiffs and appellees and liability is thereby imposed in accordance with the tests prescribed in Mauney v. Gulf Refining Co., 9 So.2d 998: "The settled law in this State may be summarized in the form of a diagram as follows: the area in which liability is imposed is that which is within the circle of reasonable foreseeability using the original point at which the negligent act was committed or became operative, and thence looking in every direction as the semidiameter of a circle, and those injuries which from this point could or should have been reasonably foreseen as something likely to happen, are within the field of liability, while those which, although foreseeable, were foreseeable only as remote possibilities, those only slightly probable, are beyond and not within the circle — in all of which time, place and circumstance play their respective and important parts." We submit that the negligent act consisted of the defendant's agent leaving and permitting an open natural gas heater to burn within three to six inches of a collection of loose paper after the place of business had been closed and the building in which the business was situated left unattended, and that a reasonable and prudent man should have foreseen that the fire which damaged the premises was something likely to happen. We contend that the facts bring the case within the circle which limits the rule for the imposition of liability.
The defendant and appellant throughout the trial of this case attempted to show by evidence that the fire in the building could have been caused by three other possibilities, but these causes were possibilities and conjectures only. The appellant advanced the conjecture that the fire could have been caused by a pyromaniac; that it could have been caused by the defendant's agent wilfully burning the building in order that he might acquire the lease for himself and finally that it was caused by defective wiring in the building. It is not necessary to discuss the first two conjectures since they never rose to a higher dignity than a slight intimation of conjecture. The conjecture as to the faulty wiring was disposed of by the testimony of Mr. James F. Newell, a graduate engineer, who received extensive professional training from the General Electric Corporation at Schenectady, New York, and who testified that he examined the wiring and concluded that the fire did not start from a short circuit.
Therefore, after all the facts, inferences and conjectures are considered, we are compelled to conclude that the fire was caused by the defendant's agent leaving a gas heater burning in close proximity to a collection of loose paper; that this action was negligence and that it was negligence on which liability can be predicated. The defendant contends that because the fire could have been caused in a manner other than that shown by the proof of the plaintiffs and appellees that the evidence should not have been submitted to the jury and in reply to this contention, we invite the court's attention to the language in the case of Bly v. So. R. Co., 183 Va. 162, 406, 31 S.E.2d 564, 32 S.E.2d 659, 172 A.L.R. 584: "A legitimate inference of want of due care on the part of the defendant can reasonably be drawn by a jury from the established circumstances. It is not necessary that the circumstances establish negligence as to the proximate cause with such certainty as to exclude every other possible conclusion. It is not necessary to negative every possibility that the accident occurred in some extraordinary manner which would relieve the defendant. Often this would be impossible. All that is required is that a jury be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible."
The appellant has, in attempting to assign the cause of the fire to causes other than to the defendant's agent's negligence, is attempting to avoid judgment on conjectures and possibilities and this court has asserted that this is not sufficient to avoid a judgment. In Riley v. Crymes, 168 So. 267, the court held: "In civil cases as we have so often heretofore said, courts act upon the reasonable probabilities. Conjectures and possibilities are not sufficient upon which to base a judgment or decree; and, on the other hand, neither of them are sufficient to avoid a judgment or decree where the proof points to probabilities."
Roell was a tenant of appellees, occupying under lease a store building in the Town of Kosciusko. The lease contract provided: "The said Second Party (Lessee) agrees and binds himself to keep the interior of the premises in as good repair as the same are at the commencement of this lease, ordinary wear and tear excepted, except that the said Second Party is not to do or perform any major repairs or replacements to the interior or exterior of said premises. It is further understood and agreed between the Parties that a major repair or replacement shall be any repair or replacement costing Fifty Dollars or more provided that the damage to be repaired was not caused by a negligent or willful act of the Second Party, his agents, employees, or by his customers or patrons."
The business was in charge of one Jennings who was employed by Roell. In the evening of December 31, 1946, the building was damaged by fire. Jennings had closed the store about six P.M. and gone home for supper. The weather was cold, and he intended to return to do some work after supper. He left the gas heater burning as had been his custom when going out for meals. He was notified that the building was afire and returned immediately. Witnesses described the extent and location of the fire. The lessors brought suit, after demand, for damages thereby caused and thereafter repaired, and procured judgment for $1,000, from which judgment the lessee appeals.
The controlling issue, therefore, involved a determination of the cause of the fire, and the suit was based upon the alleged negligence of the manager, Jennings, in leaving the gas heater burning, which was asserted to have been the proximate cause of the damage. Joined with Roell as defendants were Jennings and Ozburn-Abston Company. The two last named were dismissed from liability by the court, upon their motion.
Code 1942, Section 898, is sought to be invoked as a basis of liability on the part of the lessee. This section is as follows: "A tenant shall not be bound to pay rent for buildings after their destruction by fire or otherwise, nor shall a covenant or promise by a lessee to leave or restore the premises in good repair have the effect to bind him to erect or pay for such buildings as may be so destroyed, unless in respect to the matters aforesaid there was negligence or fault on his part, or unless he has expressly stipulated to be so bound."
It was upon the theory that the suit was upon the contract that the trial court sustained the motion to exonerate Jennings. (Hn 1) The quoted section does, of course, affect the contract rights of the parties to a lease, but the concluding clause is merely declaratory of a common law right to sue the tenant for a negligent act, resulting in damage. In view of our conclusions, we do not discuss the effect of a discharge of Jennings as a release of Roell, whose liability, if any, was under the doctrine of respondeat superior.
Even if it be assumed for our discussion that it was negligence per se to leave a gas heater burning, under the circumstances, — an assumption which we indulge with reluctance — it was part of the plaintiffs' burden to relate such act causally to a resultant damage. This, they undertook to do by showing that the heater was placed about two feet from the wall, that there were stacked upon a shelf in the rear of the heater about twenty invoices. Estimate of the distance from the heater to this shelf varied from three inches to two feet. After the fire, these invoices which had been so exposed for several months, were found not to have been burned, but only "charred," or scorched. The heater was connected to the outlet provided by the lessors, and after the fire was put into satisfactory operation without further repairs. It had a firebrick or clay back, and had been in operation for about three months under the same conditions without injury. A duplicate was exhibited to the jury and placed in operation without causing exposed inflammatory materials to become overheated. Some witnesses placed the body of the fire as within the area of the heater; others in the ceiling. A ceiling joist was shown by testimony and photographs to be deeply burned at the point where the wires to a ceiling electric fixture emerged. Electrical experts gave contradictory testimony regarding the hazards attendant upon the wiring. Some witnesses were allowed to give expert testimony that the electrical system was defective, and that the fire was caused by a short circuit.
We do not detail all the testimony. Some tended to support plaintiffs' theory, some that of the defendant. (Hn 2) We must keep before us, however, that the plaintiff's burden of proof was to show by a preponderance of evidence that the defendant did not use reasonable care in the maintenance of a reasonably safe gas heater and that such failure was the proximate cause of the fire and resulting damage. After careful examination of the entire record, we are unable to find substantial support for the burden cast upon the plaintiffs. The peremptory instruction for the defendant ought to have been given.
Reversed and judgment here for appellant.