A fire having broke out in an upper floor, where the tenant had erected a comb-pot to dress wool; the Lords found the tenant liable in the damage, because the usual precautions to prevent fire had not been taken.
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A fire having broke out in a room of an upper floor, where the tenant had erected a comb-pot for dressing wool, and consumed the house, an action was brought by the proprietor for indemnification.
It appeared, that it was not unusual, however dangerous, to erect such furnaces, even in the upper floors of houses; but that certain precautions were generally used to prevent the fire from being communicated to the house, which had been neglected in this case. It also appeared, that the proprietor was in the knowledge of the use to which the room was applied, some time before the fire happened.
The defender contended, That it was not every degree, even of neglect, that would subject the person to damages, in whose house a fire broke out; and, in proof of that proposition, referred to L. 2. De Incendio; L. 2. D. De peric. et commod. rei vend.; Voet. ad tit. Ad leg. Aquil. num. 20. In England, there is a special statute, 6th Ann. ch. 30. which declares, that no action shall be competent for damages against any person in whose house, or chamber, a fire shall accidentally begin. In Scotland, there seemed to be no necessity for any such statute. No action was understood to lie, except in the case of wilful fire, as may fairly be concluded from this, that no action ever was attempted upon that medium, till the case of Sutherland contra Robertson, 14th December 1736, where the negligence of the tenant was exceedingly gross. See Appendix.
Answered, The defender was guilty of neglecting the precautions commonly used in such cases, for preventing the danger of fire; and must, therefore, be liable to make up the loss which has been sustained, in terms of the statute 1426. c. 75. Various passages were also referred to from the civil law, particularly from the title Ad legem Aquiliam.
But it is unnecessary to be more particular. The principles upon which the decision proceeded are fully pointed out in the interlocutor.
‘The Lords found, That the comb-pot was erected in an improper manner, and that proper precautions had not been taken to prevent fire; and, therefore, found the defender liable in damages to the pursuer, and in expenses of process.’
Reporter, Coalston.Act. Armstrong.Alt. Wight, Buchan-Hepburn.
Fol. Dic. v. 4. p. 63. Fac. Col. No 65. p. 305.
