it, as was held in Moore v. Parker, 91 N. C. 275, and in Lawton v. Giles, 90 N. C. 374. That rule has been applied in this state in cases of fire caused by sparks from railroad locomotives, thus casting upon the railroad the burden of showing due care. Thompson v. Baltimore & O. R. Co. 72 W. Va. 555, 78 S. E. 624; Jacobs v. Baltimore & O. R. Co. 68 W. Va. 618, 70 S. E. 369; Mills v. Norfolk & W. R. Co. 73 W. Va. 93, 79 S. E. 1090. But we know that fires occur frequently through mere accident, and it would ordinarily cast too great a burden in such instances to require defendant to show Evidencepresumption. lack of negligence on his part. Generally the plaintiff must allege and prove negligence. Plaintiff's counsel says that this rule, while it might properly apply to an action for recovery for destruction of its cannery,-that is, the property which was owned by it when the fire occurred, yet it ought not to apply to the building, or portion of the building then under lease to the defendant, because it was-defendant's duty to return the property to its landlord in its original condition, except for ordinary wear and tear, and that view may be correct; but in view of our holding, we do not deem it necessary to pass on that question. See 17 Am. Dig. 2d Decen. ed. § 121, title "Negligence," and cases cited. But let us assume that the fire was caused by the negligence of Thorpe; that he threw a lighted cigarette into the wastebasket and started it; was the court justified in giving defendant's instruction No. 8? It reads: "The court instructs the jury that the witness Thorpe is not shown by the evidence in this case to have been engaged in the service of the defendant while he was present in its office just prior to the fire in question in this case, and that the defendant cannot be held responsible for any act of his at that time which, in the opinion of the jury, caused the fire." It is not charged by plaintiff that Thorpe was actually engaged in service when the cigarette was supposedly thrown; but he was defendant's employee. This is admitted. It is averred that he was employed by defendant, and was permitted to sleep of nights in defendant's factory, and was knowingly permitted to smoke therein. Defendant shows that Thorpe smoked in the drying room, and he did this notwithstanding repeated warnings. Why was he warned? Because defendant knew of the danger. Then, when it saw that Thorpe disobeyed its warnings, it was its duty to stop his smoking there, and, if necessary, to discharge him. discharge him. We do not think that under these circumstances it can absolve itself from liability by showing that at the time he is supposed to have thrown the lighted cigarettes he was Fire-neglinot actually in its ployee-reservice, and that it sponsibility. had warned him against smoking in the building. Defendant owed a higher duty to plaintiff than to give mere warnings to Thorpe. Had it not known that he was disobeying instructions, it would have been a different situation; but, according to its evidence, it was well aware that he was disobedient, and yet permitted him to sleep there. The night watchman says he was smoking at 1 o'clock Sunday morning, and he scolded him for it. If this were so, he ought to have put him out of the building. gence of em We think the instruction should not have been given, as it absolves defendant from all liability for Thorpe's negligence, though defendant permitted him to remain there knowing him to be disobedient and negligent. In Eaton v. Lancaster, 79 Me. 477, 10 Atl. 449, it was held that the owner of a stable is liable to the owner of a horse boarding therein for loss of the horse by fire, where the night watchman, who had general charge of the stable, permitted two other employees and a third party to enter the stable while intoxicated and to go up into the hayloft to sleep, and shortly there (— W. Va. —, 118 S. E. 521.) after they set the stable on fire. He knew they were smokers, and carried pipes and matches with them. He warned them not to go up there, but rather feebly. He did not try to use any force to prevent them. The court held that, if they were a dangerous element there, the jury might properly find that the night watchman was negligent in not preventing their going up there, and, it having so found, the judgment was affirmed. Here defendant's superintendent and night watchman knew that Thorpe smoked in the building, warned him against it, but still permitted him to continue. We think the jury might reasonably have found that this was negligence, for which defendant was liable. The rule is thus stated in 1 Thompson on Negligence, § 524: "It seems, also, that if the master knows that his servants are guilty of a certain kind of habitual misconduct dangerous to others who lawfully frequent the master's premises, it will be his duty to exercise reasonable care to prevent such misconduct,-failing in which he will be liable to anyone injured thereby. When, therefore, the proprietor of a store knew, or might by the exercise of a reasonable supervision of his business, have known that the cash boys there employed by him had been for months in the habit of snapping pins at objects and persons in the store, and neglected to prevent such misconduct, it was held that he was liable to the customer who lost an eye in consequence of a pin being snapped at her by one of his cash boys,"-citing Swinarton v. Le Boutillier, 7 Misc. 639, 28 N. Y. Supp. 53, affirmed in 148 N. Y. 752, 43 N. E. 990. In a well-reasoned opinion the court in that case held: "The pres tect against. ence of a mischiev-duty to pro- ous human being on premises may constitute the danger against which the law requires of the occupant reasonable care to protect his invitee." In Tucker v. Illinois C. R. Co. 42 La. Ann. 114, 7 So. 124, it was held: "There can be no difference in principle whether the building has been made unsafe by the agencies of time, weather, or trespass, which it was in the power of the owner to prevent. In any event, and under all these circumstances, it is the duty of the owner to keep his building in" a safe condition. There decedent was killed by the fall of a building which had become weakened by the gradual stealing of supports by trespassers. This was known to defendant; it was bound to prevent it and was therefore held liable. We see no difference in principle in the foregoing cases and the case at bar. Defendant was bound in this case to use proper care to prevent Thorpe from smoking on its premises. So, under the evidence, whether the fire was caused by spontaneous combustion due to defendant's negligence, or whether it was caused by the negligence of defendant's superintendent or night watchman in permitting Thorpe to stay in the dry room at night, with full knowledge that he was continuing his habit of smoking there, contrary to their instructions, defendant might properly be held liable for the damage wrought by the fire. A point is made that the night watchman was hired by plaintiff as well as defendant. Plaintiff had no control over that part of the premises leased by defendant. It could not direct and determine the care that defendant should take of its property. It had no control of the boy, nor can we say that the night watchman was acting on behalf of plaintiff while he was inspecting defendant's property, or giving or failing to give effective instructions to Thorpe; so plaintiff cannot be held responsible for the night watchman's negligence in failing to stop the boy's alleged misconduct. That duty devolved solely on defendant. According to its own evidence, defendant knowingly permitted dangerous agency to remain upon its premises, under circumstances which show a want of due regard for its neighbor's and its landlord's a rights. It necessarily follows that defendant's instruction No. 8 should not have been given, and likewise it was error for the court to modify certain of plaintiff's instructions, so as to exclude defendant's liability under the third count. These, with other instructions given on behalf of plaintiff, fairly cover its case as made out. We deem it unnecessary to discuss those which would put upon defendant the burden of proof of lack of negligence with respect to the property held by defendant under lease. We cannot see that, under the facts shown in this case, they would in any wise affect the result. The instructions given on behalf of defendant, inconsistent with the principles herein stated, should on a new trial be rejected. Plaintiff complains of the rejection of certain evidence. We think the map or plat offered to show the layout of the buildings should have Of gone to the jury for that purpose. It may not be complete, but would be of considerable benefit. course, it is not evidence, in the proper sense of the term; but witnesses should be permitted to use it while testifying to show the relative situations of the different parts of the building and persons concerned. Nor do we understand why Charles W. Siever should not be permitted to state that he did not know the dangerous condition of the kiln until after the fire occurred, a fact alleged in the declaration; this may be immaterial, but we think plaintiff should have been permitted to prove it. Many other errors have been assigned, but we have undertaken to discuss only those which need arise on a new trial. For the foregoing reasons, the judgment will be reversed, the verdict set aside, and a new trial awarded. ANNOTATION. Liability of master for damage to person or property due to servant's smoking. This annotation is supplemental to that in 13 A.L.R. 997. The reported case (KEYSER CANNING Co. v. KLOTS THROWING CO. ante, 283) goes to a considerable, and it would seem unwarranted, length in holding an employer liable for the destruction of property by the carelessness of an employee in smoking. It is held that a company conducting its business in a wooden building amid highly inflammable surroundings, which permits a man in its employ to sleep on the premises at night, knowing that he is a cigarette smoker and is smoking on the premises in disobedience of orders, is liable for the destruction of adjacent property, where a fire is caused by the act of the employee in throwing a lighted cigarette stub in a wastebasket while on the premises at night. It seems that the act of the employee was wholly disconnected with his employment and at a time outside the hours of employment, so that, if the decision can be sustained, it would seem to rest not on the rule respondeat superior, but on general considerations of negligence equally applicable to any person whom the owner of premises permits to go thereon. The only other recent case on the subject is Feeney v. Standard Oil Co. (1922) 58 Cal. App. 587, 209 Pac. 85, wherein the court held the employer not to be liable. In that case it appeared that an employee of the defendant, in defendant, in delivering gasolene, spilled several gallons thereof on the floor of the plaintiff's building. Some ten minutes later, while the defendant's employee was waiting to have his delivery tags approved, he lighted a cigarette and dropped the match on the floor, whereby the gasolene previously spilled was ignited and the building destroyed. The court said: "It seems clear that the defendant is not responsible for McDonald's negli gent act in dropping the lighted match into the gasolene. The lighting of the cigarette was no part of the transaction of the defendant's business. It was an independent act for McDonald's personal enjoyment. It occurred during the time of his transac tion of the defendant's business, but LEO M. DORNBERG, Respt., V. CITY OF SPOKANE, et al., Appts. Washington Supreme Court (Dept. 1)- May 15, 1923. (125 Wash. 72, 215 Pac. 518.) Municipal corporations ordinance prohibiting auctions validity. 1. An ordinance prohibiting the sale of property at auction within a prescribed portion of the business section of a municipality is unreasonable and void. [See note on this question beginning on page 299.] APPEAL by defendants from a judgment of the Superior Court for Spokane County (Huneke, J.) in favor of plaintiff in an action brought to enjoin the enforcement of an ordinance relating to the business of auctioneering. Affirmed. The facts are stated in the opinion of the court. Messrs. J. M. Geraghty and Alex M. Winston, for appellants: The ordinance in question is valid. Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462; People ex rel. Schwab v. Grant, 126 N. Y. 473, 27 N. E. 964; 6 C. J. 823; Buffalo v. Marion, 13 Misc. 639, 34 N. Y. Supp. 945; Minneota v. Martin, 124 Minn. 498, 51 L.R.A. (N.S.) 40, 145 N. W. 383, Ann. Cas. 1915B, 812; Goytino v. McAleer, 4 Cal. App. 655, 88 Pac. 991; Odd Fellows' Cemetery Asso. v. San Francisco, 140 Cal. 226, 73 Pac. 987; Linsler v. Booth Undertaking Co. 120 Wash. 177, 206 Pac. 976; Ex parte Hadacheck, 165 Cal. 416, L.R.A.1916B, 1248, 132 Pac. 584; Walcher v. First Presby. Church, 76 Okla. 9, 6 A.L.R. 1593, 184 Pac. 106; Shepard v. Seattle, 59 Wash. 363, 40 L.R.A. (N.S.) 647, 109 Pac. 1067; Spokane v. Camp, 50 Wash. 554, 126 Am. St. Rep. 913, 97 Pac. 770; Walla Walla v. Ferdon, 21 Wash. 308, 57 Pac. 796. Mr. S. Edelstein, for respondent: The ordinance in question is unreasonable and unenforceable. 6 C. J. p. 822; 28 Cyc. p. 368; Re Camp, 38 Wash. 393, 80 Pac. 547; 3 McQuillin, Mun. Corp. § 977; Hayes v. Appleton, 24 Wis. 542; People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, Ann. Cas. 1917B, 830. Bridges, J., delivered the opinion of the court: The only question in this case is the validity of § 11 of Ordinance No. C1590, as amended by Ordinance No. C2093, of the city of Spokane, which ordinance is with reference to the business of auctioneering. Section 11 reads in part as follows: "It shall be unlawful for any person, firm, company or corporation, to sell or expose for sale by way of public vendue or auction, except under and by virtue of legal process, any property, real or personal, with in the following described portion of the city of Spokane, to wit: (Here follows a description of a portion of the business district of Spokane.) No auctioneer's license issued in pursuance of this ordinance shall be deemed a permit to sell at public vendue or auction within said prohibited territory." Other sections of the ordinance provide for a license to be issued to those desiring to sell by auction and prescribe the qualifications of those entitled thereto. Other sections control in great detail the business of auctioneering. The respondent brought this suit to enjoin the officers of the city of Spokane from enforcing against him the ordinance in question, and particularly § 11, a part of which we have above quoted. The testimony has not been brought here, and we are required to rely upon the court's findings (to which no exceptions have been taken) for the facts of the case. From these it appears that the respondent had been engaged in the retail jewelry business in Spokane for a number of years, and that his store was located within the prohibited area, as described in § 11, above; that for certain reasons he was forced to go out of business and to vacate the building which he occupied, within a definite short period, and that he was desirous of having an auction sale for the purpose of aiding him in disposing of his stock on hand; that he was not a regular auctioneer, and did not carry on, and had no intention of carrying on, that business; that he had obtained the general auctioneer's license provided for in the ordinance in question; but that the city officials were threatening to arrest him if he had an auction within the prohibited district. The trial The trial court held that the quoted portion of § 11 of the ordinance was unreasonable, and therefore invalid, and enjoined the city officials from enforcing it against the respondent. In considering this question, it may be advisable to keep in mind. . certain principles of law which are generally recognized by the authorities, such as that the selling of property by auction is a lawful business; that, while such business may be regulated, being lawful, it cannot be entirely prohibited; that while the courts will ordinarily presume that the municipal officials, in enacting such an ordinance as this, acted reasonably, and that the ordinance has some relation to the public health, safety, convenience, or welfare; yet, in the final analysis, the reasonable- questions-renness of such an or- sonableness of dinance is a judicial question; and that the courts will, without hesitancy, declare invalid an ordinance which appears from the testimony or upon its face to be clearly unreasonable. Courts-judicial ordinance. No attack is here made upon those provisions of the ordinance which require one desiring to sell property at auction to obtain a license and pay a certain consideration therefor, and which determine the character of the persons to whom such licenses will issue, and which regulate auctions in so far as they are affected by questions of honorable dealing, and other similar provisions. It is here simply contended that the provision of the ordinance which absolutely forbids any public auction within a certain district of the city is unreasonable. In the case of Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462, we held that the exercise of the police power, ordinarily dwelling only in the state, had been delegated to municipalities within the state. Consequently, there can be no question but what the city of Spokane had a right to enact such ordinances as reasonably and fairly tend to affect the health, welfare, convenience, and safety of the public of that city. No case has been cited, nor has our independent research found one, which is directly in point. The following are some of those which are most nearly analogous: Several courts have held that a municipality may, by ordinance, restrict the op |