Rountree v. . Thompson , 226 N.C. 553 ( 1946 )

BARNHILL, J., concurring. This is an action by the plaintiff, landlord, against the defendant, tenant, to recover damages for the destruction by fire of a tobacco barn on the demised premises during the existence of the lease involved, alleged to have been proximately caused by the negligence of said defendant in (1) permitting his agent or servant to operate the oil heating system in said barn when he knew that said agent or servant was incompetent to operate said system; in (2) failure of defendant to place in charge of said barn some competent person who knew how to operate said heating system; and (3) the failure of the defendant to visit frequently the demised premises and to examine and see whether the heating system was properly operated. The defendant denied the allegations of negligence contained in the complaint. When the plaintiff had offered her evidence and rested her case the defendant moved to dismiss the action and for a judgment as of nonsuit, which motion was allowed by the court and a judgment of nonsuit entered, whereupon the plaintiff objected, preserved exception and appealed to the Supreme Court, assigning errors. The sole question posed in this appeal is: Did the court err in allowing the defendant's motion as in case of nonsuit, and accordingly entering judgment dismissing the action?

The plaintiff predicated her action upon allegations of negligence. The first allegation of negligence is that the defendant placed an incompetent person in charge of the barn to operate the heating system therein; and the second allegation of negligence is that the defendant failed to place in charge of the barn some competent person who knew how to operate such heating system; and the third allegation of negligence is that the defendant failed to frequently visit the premises to examine and see whether the system was being properly operated.

There is no evidence to support the third allegation of negligence. While there may be more than a scintilla of evidence that a person unfamiliar with the operation of the heating system was put in charge thereof, there is an absolute failure of proof of any casual relationship between the ignorance of the person put in charge of the barn and the origin of the fire.

The proof that the negligence alleged was the proximate cause of the damage suffered was essential to the plaintiff's alleged cause of action, and in the absence of any evidence that such alleged negligence was a proximate cause of the damages sought to be proven the plaintiff's cause of action had to fail.

It has been suggested that although the plaintiff's complaint alleges negligence, nevertheless the plaintiff had a right to rely upon the doctrine of res ipsa loquitur, and since the plaintiff has offered evidence to establish her ownership of the premises and that said defendant was in possession thereof and that the barn thereon was burned while in his possession, the burden was thereby placed on the defendant to explain how the loss occurred to excuse himself from liability. Such is but a method of contending that the doctrine of res ipsa loquitur is applicable in this case.

While the holdings in different jurisdictions are not all in accord, we are of the opinion, and so hold, that such doctrine is not applicable in this case. In 16 R.C.L., p. 747, par. 240, it is written: "According to the modern view, as regards the protection of the building on demised premises from destruction by accidental fires, the lessee is only required, in the absence of stipulations in regard thereto in the lease, to use reasonable diligence, and cannot be held liable in case the buildings are so destroyed, unless this had happened through his negligence." In 32 Am.Jur., Landlord and Tenant, par. 783, it is written: "Generally, the liability of a tenant for the destruction of a building by the fire depends on negligence. The tenant is only required, in the absence of stipulations in the lease, to use reasonable diligence to protect buildings on the demised premises from destruction by fire, and is not liable for accidental damages or destruction by fire; he is liable only if the buildings are destroyed through his negligence."

The judgment of nonsuit entered by the Superior Court was correct.

Affirmed.