ROBINSON v. TURFITT

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Docket Number

No. 34724.

Attorney(S)

Gordon Gordon, of Liberty, and Jones Stockett, of Woodville, for appellant. In the trial of this case the appellee undertook to prove liability on the appellant by alleged custom of the neighborhood as to the use of fire in clearing the land of bush, corn and cotton stalks in the springtime, and it undertook to prove this by its witness, C.L. Johnson, who was allowed to testify by the court over the objection of the appellant. We submit that this testimony was inadmissible as it is certainly the law that no one is presumed to violate the law or to do any act dangerous to another and that the act itself must be clearly established and proven; that it cannot be established by testimony of this character. The witness himself testified that it was not a custom with the appellant to do what they were trying to prove was a custom in the neighborhood. We, therefore, submit that this testimony was incompetent and the objection thereto should have been sustained. It was certainly prejudicial as the jury was lead to believe that this proved liability on the part of the appellant when coupled with all of the other incompetent testimony in this case and the failure to connect the appellant with the fire by showing that there was fire at some time that day in the field. See Bonnett v. Brown, 155 Miss. 833, 125 So. 427. Clay B. Tucker and Maxwell Bramlette, both of Woodville, for appellee. Did the testimony as to the custom of farmers "in that country," or, as another stated it, "out there," to burn ditches, fence rows, stalks, etc., in preparing their land for planting, have any weight with the jury; that is, sufficient weight to prejudice appellant's case and to influence their finding him guilty of the acts alleged in the declaration? The defendant did not object to the testimony on the part of Edward Turfitt, and his testimony was not given over the objection of defendant. The testimony of C.L. Johnson, both on direct and cross-examination, positively and affirmatively told the jury that in his three years of observation he had never seen any fire on Robinson's land until the day Turfitt's home burned. This witness further told the jury when he testified "it was the custom of the people down there in the spring of the year in cleaning up the land to pile and burn stalks and bushes" that it applied to other lands except Robinson's land, "except on this one occasion." This witness positively and absolutely negatived all evidence as to custom with the jury, and the evidence could then have no weight in the verdict of the jury in this case. Can this court say the lower court erred in admitting the testimony of Edward Turfitt as to the custom of burning, when the defendant did not object to the introduction of his testimony thereon? Therefore, part of the evidence as to the custom of burning was legally in the record. Can this court say that the negative testimony of witnesses as to the custom of burning land preparatory to planting, objected to by defendant and admitted by the court, had sufficient weight to influence a jury of men? We think not, especially in the face of a record that leaves no doubt in anyone's mind that the fire did originate on Robinson's land and, in fact, could not have originated anywhere else; that the servants were working for him and that the setting of the fire was within the scope of their employment and in accordance to their instructions and that under the statute and the decisions of this court, if the fire was permitted to spread carelessly, the defendant is liable. Argued orally by P.M. Stockett and C.T. Gordon, for appellant, and by Clay B. Tucker, for appellee.

Judges

Roberds, J., delivered the opinion of the court.

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Smart Summary

Factual and Procedural Background

Turfitt, the plaintiff below and appellee, filed suit against Robinson, the defendant below and appellant, alleging that Robinson's servants, while clearing Robinson's farmland, set a fire that negligently spread to Turfitt's adjoining land causing damage. The circuit court of Wilkinson County rendered a verdict and judgment against Robinson. Robinson appealed, contesting the sufficiency of the evidence to prove that his servants started and negligently permitted the fire to spread and that they acted within the scope of their employment.

Legal Issues Presented

Whether the plaintiff met the burden of proving that Robinson's servants started the fire and negligently permitted it to spread to the plaintiff's land.
Whether the servants were acting within the scope of their employment and about the master's business at the time of setting and permitting the fire to spread, thus rendering Robinson liable as master.
Whether evidence of a custom among farmers in the region to burn ditches, fence rows, stalks, and similar debris in springtime was admissible and relevant to prove liability or negligence in this case.
Whether the admission of evidence relating to such custom was prejudicial to the defendant, given the close factual questions on the main issues.

Arguments of the Parties

Appellant's Arguments

The testimony concerning a custom of burning land debris was inadmissible because no one is presumed to violate the law or do dangerous acts, and the act of negligence must be clearly established by direct evidence, not by testimony of neighborhood customs.
The witness who testified about the custom admitted that it was not a custom with the appellant, undermining the relevancy of the testimony.
The admission of this testimony was prejudicial because it improperly led the jury to infer liability without direct proof connecting the appellant to the fire.
The appellant objected to this testimony and argued that the failure to show that a fire actually occurred on the appellant's field that day further weakened the plaintiff's case.

Appellee's Arguments

The testimony about the custom of burning land debris was partly admitted without objection (specifically, the testimony of Edward Turfitt), thus making some evidence of custom legally in the record.
The witness C.L. Johnson testified he had never seen fire on Robinson's land except on the day of the incident, and that the custom of burning did not apply to Robinson's land except on that occasion, negating the weight of the custom evidence.
The plaintiff argued that the evidence showed the fire originated on Robinson's land, that his servants were acting within the scope of their employment and instructions, and that negligence in permitting the fire to spread rendered Robinson liable under the statute.
The appellee contended that the negative testimony on custom had no sufficient weight to prejudice the jury, and the main issue was negligence and agency, not custom.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bonnett v. Brown, 155 Miss. 833, 125 So. 427	Evidence of a general custom (permitting livestock to run at large) was inadmissible under the stock law.	The court analogized this to the present case, holding that evidence of a general custom was inadmissible to prove negligence or liability.
McCain v. Wade, 181 Miss. 664, 180 So. 748	Standards for sufficiency of evidence on negligence and agency questions.	The court recognized the factual questions on whether the fire was set by defendant's servants and if they acted within scope of employment, but declined to reverse the jury's finding.
Pulsifer v. Berry, 87 Me. 405, 32 A. 986	Evidence of custom is not material in negligence actions where care depends on varying conditions and circumstances.	The court cited this case to emphasize that customs are not a safe criterion for ordinary care in negligence, especially when conditions vary, thus rendering the custom evidence confusing and irrelevant here.

Court's Reasoning and Analysis

The court acknowledged that the main factual issues were whether Robinson’s servants started the fire and negligently permitted it to spread, and whether they were acting within the scope of their employment. These questions were close but were ultimately for the jury’s determination, and the court would not reverse the jury’s finding on these points.

However, the court found that the evidence of a general custom among farmers in the region to burn land debris was improperly admitted over objection. While evidence of custom and usage is admissible in certain cases, it must be relevant and have clear probative value. The court emphasized that customs are strictly construed and must clearly relate to the issues in the case.

Here, the custom evidence did not prove that the appellant himself engaged in the burning, nor did it address the key issues of negligence or agency. The appellant had a lawful right to burn his land, and the question was whether the fire was negligently permitted to spread by his servants acting within their employment. The custom evidence risked misleading the jury into equating the mere fact of burning with negligent conduct, which was legally unsound.

The court further relied on precedent holding that evidence of general customs is not material in negligence cases where the duty of care depends on varying conditions. The admission of this evidence was prejudicial because it could have influenced the jury’s verdict on issues to which the custom evidence was irrelevant.

Accordingly, the court reversed the judgment and remanded the case for a new trial without the improper custom evidence.

Holding and Implications

The judgment of the lower court is reversed and the case is remanded.

The court held that evidence of a general custom among farmers to burn land debris was inadmissible and prejudicial in a negligence action where the key issues were agency and negligent conduct of the defendant’s servants. The decision directly affects the parties by vacating the prior judgment and ordering a new trial excluding such evidence. No new legal precedent beyond the application of existing principles regarding customs and negligence was established.

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ROBINSON v. TURFITT.

1. CUSTOMS AND USAGES.

Evidence of custom and usage to be admissible requires that the relevancy and probative value of such evidence must be clearly shown.

2. CUSTOMS AND USAGES.

Customs and usages are strictly construed and nothing will be held to be within them which it is not proved that they cover.

3. NEGLIGENCE.

In action for damages to plaintiff's land allegedly resulting from a fire started by defendant's servants on defendant's land and negligently permitted to spread, evidence that there was a custom among farmers "in that country" to burn ditches, fence rows, stalks, etc., in preparing their lands for plowing, had no relevancy to main issues, which were the negligence of servants in starting fire and whether in so doing servants were acting within scope of employment so as to render defendant, as master, liable, and hence such evidence was inadmissible (Code 1930, sec. 3422).

4. APPEAL AND ERROR.

Where evidence made close questions on main issues whether fire, which damaged plaintiff's land, was actually set by defendant's servants and negligently permitted to spread and whether servants were acting within the scope of their employment so as to render defendant, as master, liable, the admission of evidence that there was a custom among farmers "in that country" to burn stalks, etc., in preparing their lands for plowing was prejudicial to defendant (Code 1930, sec. 3422).

SMITH, C.J., dissenting.

Roberds, J., delivered the opinion of the court.

Turfitt, plaintiff below and appellee here, averred in his declaration that Robinson, defendant below and appellant here, through his employees and servants, while clearing farm lands of Robinson, set a fire on said lands, and "wantonly, negligently and carelessly allowed the fire so set . . ." to spread to the adjoining lands of Turfitt, thereby causing the damage for which the action was brought, and for which a verdict and judgment were rendered against Robinson. Section 3422, Code of 1930.

Robinson, by his plea, placed upon Turfitt the burden of proving (1) that the servants of Robinson did, in fact, start the fire, and negligently permitted it to spread to the premises of Turfitt, causing the damage, and (2) that they were acting within the scope of their employment and about the master's business at the time.

Robinson earnestly insisted in the lower court and so insists here that Turfitt did not meet that burden and that the evidence was not sufficient to go to the jury on these questions. These are close questions on this record under the pronouncements of this Court in McCain v. Wade, 181 Miss. 664, 180 So. 748, although we would not reverse the finding of the jury upon them. However, in that state of the proof plaintiff, over the objection of the defendant, was permitted to introduce evidence of three witnesses to the effect that there was a custom, more or less general, of farmers "in that country," or, as another stated it, "out there," to burn ditches, fence rows, stalks, etc., in preparing their lands for planting. There being much doubt whether plaintiff had proved the essential facts of his case, it can be readily seen that this testimony might have had, and very likely did have, much weight with the jury in finding that the defendant was guilty of the acts alleged in the declaration. It is true that evidence of custom and usage is admissible in certain classes of cases, but the courts recognize the danger of such evidence and do not look upon it with favor, and, to be admissible in those cases, its relevancy and probative value must be clearly shown. 20 Am. Jur., p. 310, section 333. It is said in 25 C.J.S., Customs and Usages, p. 94, section 17, "Customs and usages are strictly construed and nothing will be held to be within them which it is not proved that they cover." If the evidence had any probative value whatever in this case, it was limited to proving the probability that appellant was also in the habit of burning his premises. It is doubtful if it even had this relevancy, because, although others might have burned their premises, this was really no proof that appellant burned his. But the gravamen of this action is negligence in permitting the fire to spread, and, if so, whether those so permitting were agents of appellant. Appellant had a right to burn his premises. This proof had no bearing whatever on agency or negligence. There was no proof, had it been relevant, of the customarily proper manner of burning, or that it was done in person or through servants. The danger of the testimony in this case is the inference the jury might have drawn that the mere burning by others was proof of negligent burning by appellant. In other words, that burning was the equivalent of the necessary guilt.

Our attention has not been called to any Mississippi case in point. In Bonnett v. Brown, 155 Miss. 833, 125 So. 427, there was an effort to prove a general custom of permitting livestock to run at large upon the range in a county within the stock law, which the court held was inadmissible.

Pulsifer v. Berry et al., 87 Me. 405, 32 A. 986, 988, was an action to recover damages for injury to trees of plaintiff alleged to have been caused by the negligence of defendants in omitting to take proper precautions to prevent the spreading of fires kindled by them on lands in their possession while constructing a railroad. Commenting on the competency of evidence of custom and usage to show the usual and proper manner of such burnings, the court used language peculiarly applicable to the case at bar. It said:

"The gist of the action was negligence. It was a simple question of fact, for the jury to determine, whether, under the particular circumstances and conditions shown to exist in the case, the defendants had omitted any precautions which ordinarily careful and prudent men in the same relation would not have omitted, or performed any acts which ordinarily prudent men would not have performed. Even if a general usage could ever be deemed a safe criterion of a question of ordinary care, such a limited usage as that received in this case would not be material evidence.

"It is impossible, in the first place, that there should be any uniform practice or fixed standard of care with respect to a duty so peculiarly dependent upon varying circumstances and conditions as that of guarding fire to prevent its spreading. The number and magnitude of the fires, the condition of the soil, the state of the weather, the direction and force of the wind, and the relative situation and exposure of the plaintiff's property would all be factors to be considered in the solution of the question in every case. . . . But not even a general custom can be deemed a relevant fact in an action for negligence respecting any noncontractual duty which is not performed under fixed conditions."

The evidence of custom in this case could only produce confusion and could not have failed to affect the verdict of the jury upon questions to which this evidence had no relevancy.

Reversed and remanded.

Smith, C.J., is of the opinion that the judgment of the court below should be affirmed.