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Karlen v. Hadinger (1911) 147 Wis. was not entitled to prove his statement 78, 132 N. W. 591.

with reference to the transaction made In Crawford v. Bergen (Iowa) supra, when he entered his plea. The plea where a person pleaded guilty to a was an unqualified admission that he technical assault and was fined, and was guilty of the offense charged. No upon a subsequent civil trial for the accompanying statement or explanaassault such plea was admitted in tion could change its character in that evidence as an admission, in holding respect. If there were any circumthat such plea was not conclusive, the stances of mitigation in the transaccourt said: "A party charged with tion, his statement at that time with a mere technical infraction of the reference to them would no more be criminal law may well submit to a competent than his statements at other nominal penalty upon a plea of guilty, times would have been. The case in to avoid expense and loss of time in this respect does not fall within the a trial, and there is no reason why he rule prescribed by $ 3650 of the Code, may not be permitted to show, upon which provides that 'when part of an the trial of a civil action for damages, act, declaration, conversation, or writthat he was not in fact guilty of any ing is given in evidence by one party, offense."

the whole of the same subject may However, it has been held that a be inquired into by the other.' The statement made at the time of the plea statement in question was no part of of guilty in explanation thereof is not the plea of guilty, and was clearly not admissible along with the evidence of admissible as explanatory of it.” And, the plea in the civil action. Root v. again, in Hauser V. Griffith (1897) Sturdivant (1886) 70 Iowa, 55, 29 N. 102 lowa, 215, 71 N. W.223, it was said W. 802. In so holding, the court said: that the defendant in a civil action "Defendant was prosecuted criminally cannot show the circumstances under for the assault and battery charged in which he entered a plea of guilty in the petition. He pleaded guilty, and a criminal prosecution for the same judgment imposing a fine was entered act, but pointed out that this rule does against him. On the trial of this not conflict with the rule that the plea cause in the district court plaintiff of guilty is admissible only as a decoffered in evidence the records of de- laration, and that it is not conclusive fendant's plea in the criminal case, in the civil action of the fact of actual Defendant objected to the introduc- guilt. And see Satham v. Muffle tion of the record on the ground of (1912) 23 N. D. 63, 135 N. W. 797, irrelevancy and incompetency; and on

wherein it was held that evidence as the cross-examination of the justice to the advice of friends to plead guilty of the peace, who was sworn for the was held inadmissible, at least in the purpose of identifying the record, he absence of a showing that such advice sought to prove an explanatory state- was relied upon. ment made by him when he entered

But there also is authority to the the plea. His objection to the record effect that the circumstances under was overruled, and on plaintiff's ob- which a plea of guilty was entered are jection the evidence of said statement

admissible in the civil action. Thus, was excluded. We think these rulings

in Watson v. Kentucky & I. Bridge & correct. Defendant's plea of

R. Co. (1910) 137 Ky. 619, 126 S. W. guilty was an admission by him that 146, 129 S. W. 341, where defendant he had committed the assault and bat- had pleaded guilty to the malicious tery charged in the information. That burning of property, it was held that such admission was admissible against the court, upon the trial of a subsehim on the trial of this cause cannot quent civil action arising out of the be doubted. The entry in the docket same act, erred in not permitting the of the justice was the judicial rec- defendant to testify as to the circumord of the plea made at the time it stances (acted upon the advice of was entered, and was competent evi- counsel) under which the plea was dence to prove the plea. Defendant made, evidence of such plea having

are

been admitted in the civil action as fuse to permit admission in evidence an admission against interest. And of an explanation of a plea of guilty in in Russ v. Good (1917) 92 Vt. 202, a criminal prosecution for the same as102 Atl. 481, it was held that the sault, consisting of pressure of farm weight to be given in a civil action work and expense of repeated jourfor assault and battery, of a convic- neys to the place of trial, the court tion upon a plea of guilty of the de- said that “it is always competent to fendant in a criminal prosecution for explain admissions and the circumthe same assault, “depended upon the stances under which they are made, in conditions and circumstances under order to throw light upon the force which the plea was entered,” and that which should be given to them.” "it would be the duty of the jury to Of possible interest in connection consider the admission in the light of with the above-cited cases is the desuch explanation as the defendant saw cision found in Halliday V. Smith fit to give." In this case he testified (1900) 67 Ark. 310, 54 So. 970, wherethat he had pleaded guilty on the ad- in it was held that one who had himvice of the chief of police, and that he self indicted and convicted of obdid so to get off as easy and as cheap structing a public highway did not as he could without any further thereby estop himself from subsetrouble. Likewise, in Yeska v. Swen- quently contending in a civil case to drzynski (1907) 133 Wis. 475, 113 N. restrain him from obstructing the W. 959, in holding it error in a civil road to plaintiff's detriment, that the action for assault and battery to re- road was not a public highway,

G. J. C.

KEYSER CANNING COMPANY, Piff. in Err.,

V.
KLOTS THROWING COMPANY.

West Virginia Supreme Court of Appeals - June 26, 1923.

(- W. Va. 118 S. E. 521.) Fire - negligence of employee — responsibility.

1. A silk-manufacturing company conducted its business in a wooden building, amid highly inflammable surroundings; it had in its employ a young man known to be a smoker of cigarettes, knew of the dangers of fire from that source, and repeatedly warned him against smoking upon its premises; the company permitted him, after his hours of service were ended, to sleep of nights in the premises, notwithstanding the fact that it had full knowledge that he was continuing his habit of smoking and was disobedient to instructions, but took no further steps to prevent it; a fire was caused by the employee negligently throwing a lighted cigarette stub into a wastebasket on defendant's premises, and it spread to and destroyed his neighbor's property. The silk-manufacturing company is liable to its neighbor for its loss, though the employee was not actually performing service for it at the time of his negligent act and in furtherance of its business.

[See note on this question beginning on page 294.] Negligence — liability for.

.

prudence; if damage results to 2. Every person in the conduct of neighbor from his failure to so act, he his own affairs is bound to act with the is liable there r. care expected of a man of ordinary

[See 20 R. C. L. 7; 3 R. C. L. Supp.

1015; 4 R. C. L. Supp. 1324.] Headnotes by MEREDITH, J.

a

Fire - negligence — liability for in- Supp. 1042; 4 R. C. L. Supp. 1344, jury.

1345.] 3. Where a canning company oc- Trial — conclusiveness of verdict. cupies under lease a portion of the 5. While the verdict of a jury floor space of a building for use in its in actions for negligence

is encanning business, and a silk-throwing titled to great respect, yet, if it is company occupies under lease from clearly against the decided weight the same landlord the remaining floor and preponderance of the evidence, it space for use in its business of drying will be set aside. and manufacturing silk, and in the [See 2 R. C. L. 196; 1 R. C. L. Supp. conduct of its business the silk-throw- 435.] ing company so negligently constructs,

Fire-duty to protect against. maintains, and operates a drying kiln

6. The law requires the occupant of upon its portion of the premises that

premises to exercise reasonable care to in consequence of the spontaneous

protect his buildings from fire and to combustion of the kiln and its contents

prevent the spread of fire therefrom to the building and cannery are de

the premises of his neighbor; and the stroyed by fire, an action lies therefor against the silk-throwing company.

presence of a mischievous or disobe

dient human being upon the occu. Evidence – presumption.

pant's premises, who, the occupant 4. Generally, where plaintiff's right knows, may likely cause a fire which of action for injury is based upon de- may be communicated to his neighfendant's alleged negligence, negli- bor's property, may constitute a gence will not be presumed from danger against which the law requires mere proof of the injury, but plaintiff the occupant to guard his neighbor. must prove the negligence as alleged. [See 11 R. C. L. 944; 2 R. C. L. Supp.

[See 20 R. C. L. 184, 195; 3 R. C. L. 1341.]

ERROR to the Circuit Court for Mineral County to review a judgment in favor of defendant in an action brought to recover damages for the loss of plaintiff's building by fire alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion of the court.

Mr. Harry G. Fisher, for plaintiff in 656, 10 Atl. 400; Lockwood v. Amerierror:

can Exp. Co. 76 N. H. 531, 85 Atl. 783; Defendant cannot claim that the Baker v. Hart, 123 N. Y. 470, 12 L.R.A. custom of smoking can exonerate it. 61, 25 N. E. 948; Powell v. Dayton, S. For it was its duty to have prevented & G. R. Co. 16 Or. 33, 8 Am. St. Rep. the smoking becoming an actual, liv- 251, 16 Pac. 863; Willey v. Laraway, ing danger.

64 Vt. 559, 25 Atl. 436. The P. P. Miller, 180 Fed. 289; The fire was caused by one or more Piraccini v. Director Gen. 95 N. J. L. acts of negligence, for which the de114, - A.L.R. —, 112 Atl. 311, 20 N. C. fendant was legally responsible. C. A. 501; Van Winkle v. American McNally V. Colwell and Hauch v. Steam Boiler Co. 52 N. J. L. 240, 19 Hernandez, supra; Donald v. Long Atl. 472; New Jersey Fidelity & Plate

Branch Coal Co. 86 W. Va. 250, 103 S. Glass Ins. Co. v. Lehigh Valley R. Co. E. 55. 92 N. J. L. 467, 105 Atl. 206; Tomlinson

Messrs. H. P. Whitworth and v. Armour & Co. 75 N. J. L. 748, 19

Charles N. Finnell, for defendant in L.R.A.(N.S.) 923, 70 Atl. 314; Hauch

error: v. Hernandez, 41 La. Ann. 992, 6 So. 783.

It is not allowable to infer the cause Whether or not the fire originated in

and origin of the fire and from that the kiln or from Thorpe's smoking, it

infer negligence, because one prewas essential and necessary for the

sumption cannot be based on another defendant to have provided itself with presumption. appliances or means to extinguish the Norfolk & W. R. Co. v. Cromer, 99 fire.

Va. 763, 40 S. E. 59; Chesapeake &0. R. McNally v. Colwell, 91 Mich. 527, 30 Co. v. Heath, 103 Va. 64, 48 S. E. 508; Am. St. Rep. 494, 52 N. W. 70; Dorr v. Virginia Iron, Coal & Coke Co. v. Harkness, 49 N. J. L. 571, 60 Am. Rep. Hughes, 118 Va. 731, 88 S. E. 88; Bene

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(- W. Va, -, 118 S. E. 521.) dick v. Potts, 88 Md. 52, 41 L.R.A. 478, that portion was vacant. The main 40 Atl. 1067, 4 Am. Neg. Rep. 484. part of the building was three

No presumption of negligence will stories high. Around this on three arise from the mere fact that the fire

sides were grouped various one and started in the dry kiln.

two story rooms, used in connection Veith v. Hope Salt & Coal Co. 51 W.

with the main building. For purVa. 96, 57 L.R.A. 410, 41 S. E. 187; Hanley v. West Virginia, C. & P. R. Co.

poses of description, we will treat 59 W. Va. 419, 53 S. E. 625; Culp v.

the building as fronting on the railVirginian R. Co. 77 W. Va. 125, 87 S. E. road. Immediately in front of the 187; Weaver Mercantile Co. v. Thur- three-story portion was a one-story mond, 68 W. Va. 530, 33 L.R.A. (N.S.) room, in which was housed an 80 h. 1061, 70 S. E. 126, 3 N. C. C. A. 1;

p. engine. To the right along the railWigal v. Parkersburg, 74 W. Va. 25,

road was a two-story room, called 52 L.R.A. (N.S.) 465, 81 S. E. 554;

the “east wing;" to the left was Dickinson v. Stuart Colliery Co. 71 W. Va. 325, 43 L.R.A. (N.S.) 335, 76 S. E.

another one-story room, in which 654.

were a pump, an 80 h. p. boiler, and Defendant is not liable for any act

a 30 h. p. boiler. A one-story scaldof its servant done outside the scope ing shed was on the side next to of his employment.

Mozelle street; about midway, but 18 R. C. L. & 252, p. 792; Palmer v. to the left or western side, of the Keene Forestry Asso. -- N. H.-13 main or three-story portion was a A.L.R. 995, 112 Atl. 798; Williams v.

one-story room, called the “storage Jones, 3 Hurlst. & C. 256, 159 Eng. Reprint, 528, 33 L. J. Exch. N. S. 297;

shed;” in front of and adjoining the Eaton v. Lancaster, 79 Me. 477, 10 Atl.

storage shed was a two-story room 449; Galveston, H. & S. A. R. Co. v.

called the "knitting mill.” All these Currie, 100 Tex. 136, 10 L.R.A.(N.S.)

different rooms were used in connec367, 96 S. W. 1073; Beckham v. Sea- tion with the main building; parts board Air Line R. Co. 127 Ga. 550, 12 of the structure were used by plainL.R.A.(N.S.) 476, 56 S. E. 638; Goff v. tiff in its business of canning fruits Clarksburg Dairy Co. 86 W. Va. 237,

and vegetables in season, and at the 103 S. E. 58.

time of the fire were being used Meredith, J., delivered the opin- chiefly to can tomatoes; the remainion of the court:

der of the building was used by deThis is an action of trespass on fendant in preparing and throwing the case to recover damages for the silk, and generally operating a silk burning of a building, including cer- mill. Approximately half the floor tain machinery and merchandise space was used by each, but defendtherein; the fire is alleged to have ant occupied all the second and third been caused by the negligence of de- floors and parts of the first. fendant. The trial court entered In November, 1911, Siever, the judgment for defendant on the ver- owner of the building, leased the endict of the jury, and plaintiff ob- tire premises to the plaintiff, includtained a writ of error.

ing certain line shafts, pulleys, an A statement of the situation is engine, and heating pipes. Before necessary in order to enter upon an that the building had been used as intelligent discussion of the assign- a woolen mill. Plaintiff had the ments of error. Charles W. Siever right to continue its lease for five owned a parcel of land in Keyser, years from January 1, 1912. On consisting of six lots, each having a May 10, 1914, plaintiff leased to defrontage of 25 feet on Mozelle fendant the second and third stories. street, and extending from that including the second story of the street 120 feet back to the Baltimore "east wing;” also the engines and & Ohio Railroad, so that the parcel boilers, the rooms on the first floor was 150 feet in width and 120 feet where they were located, and a room in depth. Practically all of the par adjoining on the south and east. cel was covered by a large frame Defendant agreed to furnish plainbuilding, except the eastern side; tiff engine power for its use in the canning business, but not to exceed by machinery, to drive air through 3 horse power more than it used the box, and force the heat from during the 1913 season, and also wa- the pipes up through the holes in the ter for its purposes; plaintiff was to floor of the kiln. At the top of the pay one half the cost, for the period kiln was an opening or openings to the power and water were fur- let the vapors escape. There was nished, for the fuel, oil, and engi- also a large sheet-iron pipe, someneer's salary. It was to do certain

It was to do certain thing like a stovepipe, extending work on the boilers not necessary to from the top of the kiln through the mention here, and thereafter de- outside wall; this was equipped with fendant was to keep them in repair an ordinary damper. The steam and insured. Defendant could make used in the coils was generated from alterations, not involving structural the boilers located on the ground changes, which it might desire in floor. The silk, after being treated connection with its business. This to a solution of water, soap, soda, lease arrangement continued until and neat's-foot oil, was hung on May 10, 1918, when it was agreed racks and wheeled into the kiln, the that defendant should pay its rent door thereto was closed, and it redirect to Charles W. Siever, but no mained there about three hours to other change seems to have been be heated and dried. made in the arrangements between The boilers and engine were unplaintiff and the defendant.

der defendant's control. It furDefendant installed its silk mill, nished heat and power to plaintiff, its main machinery being located on at the same time furnishing heat the second floor of the main or three- and power for the operation of its story structure; on the second floor own silk mill. The kiln had been in of the "east wing' it placed its "dry- operation for over five years. The ing kiln;" this room was 22 by 33 heated steam pipes, which we will feet, lengthwise facing the railroad; for brevity call the radiator, had the kiln was located in the east and during that time caused the wooden outside corner of the room, next the floor and sides of the kiln to char railroad; there was a door leading and turn a brownish color; the pine from this room to the second-floor floor had been renewed a number of room of the three-story portion; a times, but no changes had been made stairway extended from the front of in the kiln walls. The parts next to the ground-floor room up to the sec- the radiator had become punky and ond-floor landing near the entrance brittle, through a process of slow door between the drying room and combustion, and the weight of the the second-story main-floor room.

kiln and contents seems to have The controversy largely revolves caused the floor to sag, so that it around the structure and operation had to be propped up from below. of the kiln. It consisted of a box- Defendant had been often requested like arrangement, approximately 4 to replace the kiln with one of nonfeet wide, 6 feet long, and 6 feet combustible materials. There was high. The sides and top were made evidence to the effect that the asof hard maple; the floor, which was bestos lining to the box which partof yellow pine, was punctured with ly incased the radiator had broken auger holes. Underneath this floor, and fallen away from its sides. In suspended to the joists, was a series February, 1918, after an inspection of steam pipes, a sort of radiator, of the premises and particularly of arranged in tiers or coils, with a to- the kiln, by the inspectors employed tal length of about 500 feet; they by the insurance company that had were inclosed on the bottom and policies on plaintiff's cannery, plainsides with a wooden box, which was tiff's insurance was canceled, belined on the inside with asbestos; at cause of the dangerous condition the front and outside the box was of the kiln, and defendant was then an 18-inch fan, which was operated warned of the danger. But its su

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