Parsons v. Pettingell , 93 Mass. 507 ( 1866 )

Hoar, J.

A fireward is an officer who derives all his powers from the statute; and when the statute empowers three fire-wards to do certain acts upon their joint responsibility, acting together, it neither expressly nor by implication gives any such authority to one of them, acting alone. Ruggles v. Nantucket, 11 Cush. 433. In that case the court say that “ the plain intent of the statute is, that no house or building shall be demolished, unless it shall be judged necessary by three firewards, or by the other officers authorized to act in their absence, or where ho firewards have been appointed......It is a joint authority expressly given to the officers designated, acting together, and cannot be exercised by a minority, or by any one of them.”

The defendants seek to remove their case from the operation if this principle by showing that it was impossible to procure the concurrent action of three firewards, they being separated by the fire; and contend that as the necessity for the destruction of the house was immediate and pressing, the one who was in a position to act must be regarded as entitled to act alone. But as one fireward is not intrusted by law with any peculiar authority over the subject, he would in such a case be no rpore than any other citizen; and the necessity would apply as well to the acts of any other person present as to his.

We think, therefore, that the ruling of the court was right, that “inasmuch as the act of the defendants in blowing up the plaintiff’s house was without his consent, and not directed by any three firewards or by any of the other persons named in Gen. Sts. e. 24, § 5, it was wrongful, and the plaintiff is entitled to such damages as he had sustained therefrom.” It is objected that this instruction did not leave open to the jury the question whether the destruction of the house was necessary for the public safety, which the defendants had a right to prove, and which would have furnished a justification. Malwerer v. Spinke, Dyer, 36. Mouse’s case, 12 Co. 63. Saltpetre case, 12 Co. 13. Taylor v. Plymouth, 8 Met. 462. But we must interpret the instruction given by the subject to which it was applied by the judge who gave it. And we think it is obvious that it only referred to the official authority under the statute upon which the defendants relied, and upon which they had asked for instructions which were refused. It does not appear from the bill of exceptions that any ruling was asked upon the common law right to pull down a building in case of necessity, or that the point was presented by the defendants to the court or jury. The extent and limitations of that right are not before us for discussion or decision.

But we are of opinion that the rule of damages was erroneously stated, and that upon this point the exceptions must be sustained. The jury were instructed that the fact that the house and furniture in it were in imminent peril of destruction by fire would not diminish the damages to which the plaintiff was entitled. This instruction was afterward qualified in its application to the building, by stating that if it was so far on fire at the time it was blown up as to make its destruction inevitable, it might be considered as already destroyed, and the defendants would not be answerable; and that if it was partially burned, but not to such an extent, the amount of injury which it had received should be deducted from its value. But it was still held that unless the house or furniture was actually on fire at the time nothing was to be deducted from their full value on account of any peril to which they were exposed. This ruling would include the case of a building or furniture so surrounded by fire as to make their preservation, or even access to them for more than a moment, impossible, while they were yet not actually burning. The defendants asked that the jury should be instructed that they were “ liable for the destruction of such personal property of the plaintiff, if any, as might have been saved if they had not interfered, and for no more.” This was in substance the true rule. As the defendants were wrongdoers, it was necessary that such facts should appear as would limit their full responsibility. But such facts might be shown. It is obvious that in the midst of an extensive conflagration property might be so situated in relation to the fire, although not actually burning, as to materially affect its value. The plaintiff had a right to the chance of saving his property of which the act of the defendants deprived him. But that chance might be so small as to be of scarcely appreciable worth.

We think the jury should have been permitted to consider whether there was any possibility of saving the property destroyed, although it was not proved to have been on fire; and that they should not have assessed more than nominal damage for that which could not have been saved.

Exceptions sustained