The complaint contained two counts, which will be set out in a report of the case.
Count 1 was not subject to the demurrers assigned thereto. Ala. G. S. R. Co. v. Johnston, 128 Ala. 283, 29 So. 771; L. N. R. R. v. Smith, 163 Ala. 141, 50 So. 241; Ala. G. S. R. R. v. Davenport, 195 Ala. 368, 70 So. 674; Tarrance v. Chapman, 196 Ala. 88, 71 So. 707.
The averments of count 2 are not sufficient to constitute it a count in wanton negligence, and was subject to the demurrers assigned thereto. So. Ry. v. Weatherlow, 153 Ala. 171,44 So. 1019; Ala. G. S. R. R. v. Smith, 191 Ala. 643, 68 So. 56. This was no more than a count in simple negligence.
A person who sets out fire on his own premises is responsible for injury or damage due to failure on his part to use prudence, reasonable care, and caution in kindling the fire and in keeping it from spreading to the land of another. Edwards v. Massingill, 3 Ala. App. 406, 57 So. 400; McNally v. Colwell,91 Mich. 527, 52 N.W. 70, 30 Am. St. Rep. 494; Hanlon v. Ingram, 1 Iowa, 108; Hewey v. Nourse, 54 Me. 256; Dewey v. Leonard, 14 Minn. 153 (Gil. 120); Johnson v. Barber, 5 Gilman (III.) 425, 50 Am. Dec. 416.
The overruling, however, of the demurrers to count 2, appears not to have worked harm or injury to the appellant, for the trial court charged the jury that the defendant was required to exercise ordinary care and prudence in watching the barn, or in putting out the fire to prevent setting the barn on fire, and, in case they should find for the plaintiff, the measure of damages would be the reasonable and fair cash market value of the property destroyed from the testimony in the case. The jury was in no wise charged as to punitive damages.
The evidence showed that the barn was burned on the 4th of March, 1918; that it together with other buildings was on a 60-acre tract of land owned by plaintiff. There was clearly no error in sustaining plaintiff's objection to the question on cross-examination "whether he assessed the place for taxation for the year 1917 and for what sum." This was not the proper way to prove the market value of the farm at the time it was burned, or at any other time.
On cross-examination a witness for plaintiff was asked "if he considered it a matter of danger to put fire to a tree at that distance from the barn." In the first place there was no contention that the tree was negligently fired, but that the negligence was occasioned, by allowing or permitting the fire from the tree to be communicated to the barn, and, furthermore, this called for a mere conclusion of the witness, and there was no error in sustaining the objection to the question.
On timely objection the witness Newton was not permitted to answer the question as to whether he had perceived the danger from the fire when he was at home at 12 o'clock, the day of the burning, and if he had not at that time stated to his wife, that it was nothing more than he expected, that the fire would burn the barn.
This was clearly irrelevant testimony, and its introduction was properly refused.
As to whether the barn caught from the tree, which was on fire, and, if so, was the defendant negligent in permitting the fire to be communicated, were the real questions of fact in the case, and to allow the defendant's witness Newton to give his belief about these facts, or draw his conclusion, was most certainly improper, and was properly disallowed, and this may be equally said as to the testimony of the witness Tate sought to be introduced by the defendant. Any declaration made by the witness Mrs. Newton as to how she said the fire caught was hearsay and illegal.
All assignments of error having been considered by the court, and no reversible error appearing, the judgement appealed from is affirmed.
Affirmed. *Page 17