American Family Mut. Ins. Co. v. Grim

440 P.2d 621 (1968)

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Nature of the Case

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Facts

D and three companions, ages thirteen and fourteen, gathered at the home of one of the boys to spend the night. They planned to sleep in the backyard in sleeping bags. At 10 p.m. they decided to go downtown to a filling station to get some Cokes. As they passed the church, one of the boys remarked that Cokes were kept in a refrigerator in the kitchen and maybe they could get some there. The boys entered through the unlocked door of the main entrance to the sanctuary. The kitchen door was locked. They then decided to gain entry via the attic. All four went through the sanctuary to a storeroom located behind the stage. D remained in the storeroom while his three companions gained entry to the attic through a trap door in the ceiling. In the attic, the trio's way was illuminated by one of the boys turning on a socket-type electric light that hung from one of the rafters. The wires to the socket were contained in a metal conduit pipe, and whenever one of the three youths touched the pipe, the light flickered off and on. A cement wall blocked their way, and they left the attic, turning off the light as they departed. All four then went into the furnace room where two of the boys went up into the attic through a trap door that opened into the area above the hallway. The two boys found some paper material which, without D's knowledge, they rolled up, lighted with a match, and used as torches to light their way. The two found their way blocked. One torch was extinguished by 'stomping' it on a board lying across the rafters; the other burned rapidly and was permitted to fall between the rafters onto the ceiling. Believing the torches to be fully extinguished, the two left the attic and descended to the furnace room. D had left to get a drink at a fountain and when D returned he found his three companions attempting to extinguish another torch which, in his absence, the third boy had lighted. The boys stamped the torch out on the floor and finally dumped the balance of it into a sink in the furnace room. They went to the filling stating and drank Cokes. They returned to their sleeping bags around midnight. About 30 minutes later they observed a light burning in the church attic in the same area where the light they had used was located. They heard some talking, the hitting of a window of the church, and saw four or five boys run across the south side and around the southeast corner of the building. Eventually, the church was discovered to be on fire. The chief of the local volunteer fire department was unable to determine the cause of the fire; he concluded the fire had originated on the south side of the south partition of the west wing near the furnace room and had been burning three or four hours at the time it was discovered. The trial court found that the fire was started as a result of the torches. It found that D knew nothing about the lighting of the torches, but that he and the other three boys were in the church, and two of the boys were in the attic, for the purpose of attempting to find an entrance into the kitchen in order to get or attempt to get, Cokes therefrom. It held that D was jointly and severally liable, and entered judgment for P in the sum of $25,000. D appealed. D argues he cannot be held liable, either jointly or severally, for the damage caused by the fire.