Steele v. Darner

Citation103 S.W. 582,124 Mo.App. 338
PartiesSTEELE et al., Respondents, v. DARNER, Appellant
Decision Date16 April 1907
CourtCourt of Appeal of Missouri (US)

Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.

AFFIRMED.

Judgment affirmed.

F. P Lindsay and George Hubbert for appellant.

The verdict and judgment should have been in favor of the defendant upon the facts under the law. For even under the "damage" statute for willfully setting out fire the law as declared by the circuit court for paintiffs does not purport to be under any statute, or seek any remedy provided by statute; nor does the complaint state or the evidence prove any common law cause founded in negligence or unlawful design. Russell v. Reagan, 34 Mo.App. 242; Potter v. U.S. 155 U.S. 446; State v. Grassie, 74 Mo.App. 316.

James A. Sturges for respondents.

The term "willfully" is properly defined. To give it the criminal significance claimed by the defense would virtually destroy the efficacy of the statute. Such construction would require the defendant to commit arson in order to be liable for damages. All the statute requires is an intention to set fire to the woods. Findlay v Langston, 12 Mo. 121; Kahle v. Hobein, 30 Mo.App. 476.

OPINION

BLAND, P. J.

The action is to recover damages caused by fire, which the petition alleges was willfully set on land of D. K. Hurst and land of plaintiff by defendant, in the month of November 1904. The evidence shows that plaintiff Hurst and defendant owned and resided on adjoining farms in the southwest corner of McDonald county and were neighbors; that in November 1904, the weather was dry and they apprehended danger of injury to their farms by fire from the adjacent woods; that an effort had been made by defendant and others to get the neighbors to agree upon a day when they would all meet and back-fire around their several farms to protect them from any fire that might be set in the surrounding woods. No day was finally agreed upon by all of them, but about the last day of November defendant, Hurst and one or two others agreed on a day to back-fire and met at Hurst's place, and sent word to plaintiff they were going to fire about 12 o'clock. Plaintiff (M. J. Steele) was not able to get out, and sent word to defendant that he did not want to fire on that day and warned him not to burn his woods. Mrs. Steele went to Hurst's and saw that preparations were being made by defendant and others to set out fire on Hurst's premises, but testified that defendant told her he would not set out fire unless more help came, and that she left under the impression that fire would not be set out on that day. Defendant and others raked leaves back from Hurst's premises and the fire was set by defendant's order. As it gained headway the velocity of the wind increased and the fire was carried on to a thirty-acre field, belonging to plaintiff, inclosed by a rail fence and upon which was an orchard. The fence was burned to the ground and the fire...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT