Lemma v. Searle

• Decision Date: 18 February 1913
• Citation: 140 N.W. 65,153 Wis. 24
• Parties: LEMMA v. SEARLE ET AL.
• Court: Wisconsin Supreme Court

153 Wis. 24

140 N.W. 65

LEMMA

v.SEARLE ET AL.^d1

Supreme Court of Wisconsin.

Feb. 18, 1913.

Appeal from Circuit Court, Polk County; Frank A. Ross, Judge.

Action by F. E. Lemma against Olaf O. Searle and another. From a judgment for plaintiff, defendants appeal. Affirmed as modified.

Action for wrongful destruction of plaintiff's property.

Complaint was made to the effect that, in the spring of 1907, plaintiff owned and possessed, on certain lands specified, wood of the value of $600, which defendants, without his permission, set fire to and burned up.

Defendants answered thus: The land on which the wood was located was the property of defendant Searle. In 1905, he licensed plaintiff to place a mill thereon. After operating the mill for some time he removed it, leaving a large amount of wood, sawdust and rubbish on the land. Thereafter Searle employed defendant Horton to clean up the premises and fit the same for a farm. In so doing the wood was burned. Long prior thereto plaintiff ceased to have any right to occupy the premises and abandoned the wood as worthless.

Such proceedings were taken that a referee appointed to hear, try and determine the case made findings to this effect: At the time of the fire plaintiff was occupying the land by permission of Searle, the owner. Horton in executing the latter's order to clean up the premises did not use reasonable care to avoid burning the wood. Thereby destruction thereof occurred. The wood was reasonably worth $446.80.

On such facts plaintiff was awarded judgment with interest from the time of the destruction of the wood.

The court found, further, that negligence of defendant Horton, acting under direction of defendant Searle, was the proximate cause of plaintiff's loss without any want of ordinary care on his part contributing thereto.

Judgment was rendered accordingly.Morris E. Yager, of Frederic (Holland & Lovett, of Park Falls, of counsel), for appellants.

Frank B. Dorothy, of St. Croix Falls, for respondent.

MARSHALL, J. (after stating the facts as above).

The questions presented for consideration do not merit more than brief treatment, some hardly to be mentioned.

Some errors assigned go to the question of whether the findings of fact were warranted. It is sufficient to say in respect thereto that we are unable to see any good ground for holding any thereof to be contrary to the clear preponderance of the evidence.

[1] The point is made that the court erred in refusing to find the...