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Menth v. Breeze Corp.

Decided: April 24, 1950.

BERNARD MENTH, JOAN MENTH, CHARLES LAMB, MARY LAMB, JOSEPH LAMB, FRANK LAMB, WILLIAM LAMB AND KATHERINE LAMB, PLAINTIFFS-RESPONDENTS,
v.
BREEZE CORPORATION, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported in 3 N.J. Super. 169.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Ackerson, J. Wachenfeld, J., concurring in result.

Ackerson

[4 NJ Page 432] This action is for the recovery of damages, stipulated at $3,050, suffered by the plaintiffs when certain of their household furnishings and personal effects in a threestory

frame apartment house where they resided at 27 South Sixth Street, Newark, were destroyed by a fire communicated thereto from a shed on an adjoining unimproved lot leased and used by the defendant in the manner hereinafter stated.

This lot was enclosed by a fence with a large entrance gate on South Sixth Street and was used by defendant for the parking of automobiles of its employees who worked in its factory across the street and for the storage of materials in several small sheds thereon. Plaintiffs' proofs showed that on the northerly side of this lot were three small sheds which backed up to a board fence on the line dividing this lot from the premises occupied by the apartment house so that the southerly side thereof was only three feet from the rear of the sheds, which space was used as an alleyway to the rear of the house. One of these three sheds farthest from South Sixth Street was an open one, 8' x 20' x 12'. Its sides were constructed of wire caging, its front was open and its roof was made of boards covered with tar paper. In this particular shed the defendant stored burlap bags which had an oily discolored appearance and which were used in connection with the transportation of waste aluminum turnings or shavings from the defendant's factory across the street. The aluminum contents thereof were emptied into another shed on the lot and the bags were stored empty (except for such aluminum shavings as adhered to the insides thereof) in the open wire shed.

The plaintiffs' evidence further disclosed that on the afternoon of June 6, 1946, smoke was observed issuing from this open shed. Joseph Lamb, one of the plaintiffs, had just driven up in his car when a guard stationed in an enclosure at the front of defendant's plant, not opposite the lot in question but down the street a way, came up and Lamb followed him through the gate and into the open shed where he saw "smoke and a little flame" on the floor, the latter being "all covered over with bags." The guard then returned to the plant for a fire extinguisher since "there was none at the scene of the fire." By the time he returned with the extinguisher,

the fire had spread very rapidly and intensely to the adjoining apartment house. A loud noise or explosion accompanied the fire, several cars parked alongside the shed also caught fire and exploded. The two alarm blaze destroyed the side of the building including the apartments which had been occupied by the plaintiffs causing the damage for which they are now seeking recovery.

As soon as the fire was under control, several officers of the Newark Fire Department conducted an investigation on the premises as to the cause thereof. One of them was called as a witness and testified that "In the yard adjoining the frame dwelling we found a number of bags, apparently oil soaked and water soaked. [Because of] the rapidity of the fire and the spread of it we picked up one of those bags, wrapped it in paper, and sent it to our laboratory for analysis * * *. It [a burlap bag] appeared to be oil soaked, in our opinion, at the time * * * but it had been wet with water from the firehoses." The analysis, made by Dr. Warner, at the Police and Fire Laboratory, disclosed the partly burned burlap bag to be saturated with an inflammable mineral oil of the hydrocarbon type and to contain "many" spirals of metallic shavings adhering to the inside thereof -- an aluminum alloy and highly inflammable.

The gravamen of the complaint is that the defendant improperly, carelessly and negligently stored combustible and highly inflammable materials on the leased premises without taking proper precautions to prevent their ignition and that such negligence proximately caused the loss of plaintiffs' personal property. An amendment to the complaint added counts charging defendant with failure to keep proper equipment on hand to extinguish a spreading fire, and with violation of city ordinances, and state statutes regulating the storage of highly combustible and inflammable materials.

The trial court at the close of the plaintiffs' case on motion made by defendant dismissed the complaint saying "I don't think the evidence is established from which a jury could draw the conclusion that this fire was the result of spontaneous

combustion, nor do I think there is evidence to establish any negligence on the part of the defendant. Certainly res ipsa loquitur does not apply here."

On appeal the Appellate Division of the Superior Court reversed and ordered a new trial holding that the Law Division should not have dismissed the complaint as plaintiffs' proofs entitled them to a prima facie presumption of negligence under the rule of res ipsa loquitur. The cause comes before us on certification granted to defendant to review the determination of the Appellate Division.

The appellant's brief raises the question of the applicability of the rule of res ipsa loquitur to the case sub judice. The argument has several branches but for the purpose of this appeal we need not consider all of them.

It is well settled that, in the absence of legislation to the contrary, liability for injury to others through the escape of fire from premises of which one is in control, must, in general, be predicated upon negligence, and the burden of proof rests upon the plaintiff. Conrad v. Gerber, 106 N.J.L. 158 (E. & A. 1929). Negligence being the gist of the action must be proven. Thus an owner or occupant of premises on which a fire accidentally starts is liable for the communication of the fire to the premises of a neighbor only if he has been guilty of some negligence in connection with its origin or escape. Read v. Pennsylvania R.R. Co., 44 N.J.L. 280 (Sup. Ct. 1882); ...


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