Grand Rapids & Indiana Railroad v. McMahon ( 1896 )

The facts as shown by the petition for mandamus were:

1. That on October 26, 1895, Isaac F. Kinney sued relator in justice’s court in an action of trespass on the ease upon promises, claiming in the summons $300 damages.

2. That plaintiff in his declaration alleged that fire was spread and communicated from the engine and premises of the relator to the lands of the plaintiff, and burned soil, fences, trees, and grass growing and grass cut, and claimed $300 damages and cost of suit.

3. That plaintiff’s bill of particulars was as follows:

a — Damages to trees.........$ 50.00

¿ — Damages to grass cut and growing.............. 100.00

e — Damages to soil.......... 100.00

d — Damages to fences........ 25.00

e — Expense of looking after fire................... 25.00

$300.00

4. That relator demurred to said declaration as not sufficient in law.

5. That said demurrer was overruled, and judgment rendered for the plaintiff for $300 damages, and costs of suit.

6. That relator took a special appeal from said judgment; that the objections set up as the grounds of such special appeal were:

a — That the form of the action as set forth in the summons and declaration is assumpsit.

& — That the only damages claimed are on account of the destruction of and injury to certain property by fire, and expenses incurred in looking after the fire; that the allegations in the declaration set forth a cause of action for which an action on the case or of trespass on the case would lie.

c — That the case thus set forth is one in which it is not competent to waive the tort and sue in assumpsit.

c^-Thot a considerable part of plaintiff’s demand and of the damages awarded to him is for grass eut and for fences and for the expense of looking after the fire, and for these matters it is not competent to waive the tort and sue in assumpsit.

e — That plaintiff’s demand comprises several distinct items, for part of which at least the tort cannot be waived and assumpsit brought, and it is not competent to join in one action said several classes of items.

7. That on March 3, 1896, the case was heard upon the issue of law joined therein upon said special appeal, and the same was overruled and disallowed, with costs against relator, and relator was given 20 days in which to plead to the declaration.