Hunt v. Briggs

¶1(on reassignment).

¶2Appellants brought separate actions to recover damages to their several properties caused by fire which spread to the appel*567lants’ lands from adjoining land on which the respondents, or their employers, were engaged in haying operations. The two separate cases were joined at the trial court level for purposes of trial and motions, and are joined for appeal purposes. The appellants’ complaints, as amended, each stated two “counts,” the first alleging simply negligent operations, and the second alleging liability based upon the doctrine of res ipsa loquitur. The respondents, by their respective answers to the complaints, had denied liability, and they moved for judgment on the pleadings as to count two of the amended complaints, and for summary judgment as to count one. The trial court granted summary judgment with respect to both counts in both cases, and these appeals followed. We reverse and remand.

¶3The appellants did not respond to respondents’ motions by affidavit or brief.1 SDCL 15-6-56 sets out our summary judgment procedure. The defendants’ motions were not supported by any affidavits but incorporated all of the files and records in support of the summary judgment motion as to count one. The motion as to count two was solely a matter of law. SDCL 15-6-56(a) provides that motions for summary judgment may be made with or without supporting affidavits. SDCL 15-6-56(e) provides that when the motion is made and supported the adverse party may not rest upon the pleadings, but the response must set forth specific facts showing genuine issues for trial. Failing this, summary judgment, if appropriate, shall be entered against him. The depositions incorporated by reference in respondents’ motions all indicate that none of the parties deposed knew the cause of the fire. SDCL 15-6-56(e) does not require the appellants to show cause of the fire by specific facts until such time as the respondents have shown by depositions, affidavits, etc., that the fire was caused by something other than their negligence. The cause of the fire was, therefore, a genuine issue of material fact and summary judgment was inappropriate. Had the trial court simply entered summary judgment upon the failure of the appellants to properly respond we would still have had to reverse. However, the trial court dealt with the merits of the motion and granted summary judgment as to both counts relying on Bearry v. Brensing, 85 S.D. 370, 182 N.W.2d 655 (1970). We will, therefore, examine the merits of the motion.

¶4The facts, so far as developed in the depositions, are that the fire began in a triangular hayfield in which Elmer Briggs and the two employees were operating a windrower, a baler and a bale hauler. When first observed by Elmer, he was about fifty yards from the fire, which then covered several acres. There was no equipment parked or in use in the immediate vicinity of the fire at that time. Kirby Briggs and his crew were working in another area at least one-half mile away.

¶5We must first consider whether summary judgment is an appropriate disposition in this case. There are numerous cases which hold that summary judgment is not usually appropriate in a negligence action. See Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968); Miller v. Miller, 373 Mich. 519, 129 N.W.2d 885 (1964); Splihte v. Commercial Metals Company, 13 Misc.2d 74, 178 N.Y.S.2d 540 (1958). The plaintiffs cannot be expected to try their lawsuit by discovery. This is not to say that summary judgment is never appropriate; however, we do not view this to be such a case.

¶6As we noted above, the trial court grounded its decision upon the holding of this court in Bearry v. Brensing, supra.With respect to the second count he quoted:

Our rule is that with the single exception of fires caused by sparks emitted from locomotive engines, res ipsa loquitur does not apply to cases involving damage or *568injury by fire. Bearry, supra,182 N.W.2d at 656.

¶7With respect to the first count he further quoted:

Manifestly we are here concerned with only liability for injury caused by a person’s want of ordinary care or skill. This is the basis of negligence. The burden is upon the one who seeks to recover because of negligence to prove it. The mere happening of a fire with resultant injury raises no presumption of negligence, either in kindling or management of it. Bearry, supra,182 N.W .2d at 656.

¶8There is no question but what the facts in Bearryare on all fours with the instant case. However, we feel that the author of the Bearrydecision erred in supporting his position by citing Le Zotte v. Lindquist, 51 S.D. 97, 212 N.W. 503 (1927), as authority for rejecting the doctrine of res ipsa loqui-tur in fire cases. This court in Le Zottestates:

“[T]he general rule is that the destruction of property by fire does not raise a presumption of negligence either in the kindling or the management of the fire. . ” Le Zotte, supra, 212 N.W. at 505.

¶9This was an appropriate holding in Le Zottewhich involved a question of a defective stove, but clearly distinguishable from the Bearry fire. The Le Zottecourt went on to point out that:

“The case of fires caused by sparks emitted from locomotive engines is an exception to this rule.” Le Zotte, supra, 212 N.W. at 505.

¶10As noted, Le Zottewas decided in 1927 when the use of horsedrawn harvesting equipment was far more common than power-driven equipment. The present day combustion-engined tractor and combines are more closely akin to the spark-emitting locomotives than they are to defective stoves.

¶11Therefore, we reluctantly overrule the Bearrydecision and its application to combustion-engine powered harvest equipment. We say reluctantly, because we are not unmindful of the doctrine of stare deci-sis. However, that concept is not applicable to outdated rules where times have changed the circumstances.2

¶12We also distinguish this case from the Kansas case cited by this court in Bearry,3which was an action between the owner of the property and a custom operator employed by him. The equities in that case are different inasmuch as the owner of the field, if he was aware of the fire situation, took the same chances as the operator did. That doesn’t mean that the owners of adjacent fields, who have no control over whether the operator will work on a particularly dry day or not, should be subjected to the same hazard.

¶13We would further note that if the respondents’ evidence should affirmatively show that the Briggs, Elmer and Kirby, were not operating as copartners or in a joint venture, summary judgment may be a possible remedy on behalf of the one who was not present at the immediate scene. However, the appellants’ complaint alleged that they were operating as partners and a review of the depositions does not negate this.

¶14We, therefore, reverse the summary judgment in both cases as to both counts, and remand the cases for trial on the merits.