Herrick v. City Springfield. Same v. S. J

CROSBY, Justice. These are two actions of tort brought to recover for damages caused by fire to the plaintiff's timber, wood and fences in the town of Blandford, in this commonwealth. Since the bringing of these actions the plaintiff has died and the actions are being prosecuted by the executrix of his will. The cases were tried together before a Judge of the superior court sitting without a jury, who found for the plaintiff in each case in the sum of $1,400. It is recited in the exceptions of the defendant city that it was engaged in constructing a dam and reservoir for its water supply in the town of Blandford. It let the contract for the performance of this work to the defendant S. J. Groves & Sons Company; this company sublet the contract for clearing and burning over the land within the reservoir area, which was a part of the work, to Wood & Wood, Inc. for $81,500. The contract between S. J. Groves & Sons Company and Wood & Wood, Inc. expressly stipulated that the former should pay all the employees of the latter by checks made out directly to such employees, and should pay all bills of Wood & Wood, Inc. with its (S. J. Groves & Sons Company's) checks. While Wood & Wood, Inc. was engaged under its contract in burning over some of the area, the fire got out of control and spread over land of the plaintiff and burned a portion of it. There was evidence that the land of the city had to be burned over properly to prepare it to receive water; that at the time of the burning the land was covered with brush and trees and they were all burned by order, or by contract, of the city of Springfield. The starting point of the fire to the nearest boundary of the plaintiff's land was about two thousand feet. The work was under the control of S. J. Groves & Sons Company, but Wood & Wood, Inc. was the contractor who actually did the work of clearing and burning the reservoir area. The fire occurred on April 21, 1931. On that day Wood & Wood, Inc. had a permit from the forest warden of Blandford to burn an area over a mile in length. The forest warden testified that in the forenoon of that day 'they didn't have much wind; after the fire got away, they had plenty.' There was evidence that about 12:30 o'clock the fire had got beyond control; that the Herrick property was north of where the fire started and the wind was from the south; that Wood & Wood, Inc. had about eighteen or twenty men working burning the brush at the time the fire started; that later it had about three hundred men and four fire trucks fighting the fire; that from one hundred to one hundred and twenty-five acres of the plaintiff's land were burned over. The Judge found that Wood & Wood, Inc. was negligent in its control of the fire which it started on land of the city; that it spread to the plaintiff's land, and that more than one hundred acres of timber, pasture and meadow land were burned over.