16 Mo. 508 (Mo. 1852), Miller v. Martin

Citation:16 Mo. 508
Opinion Judge:SCOTT, Judge.
Party Name:MILLER, Appellant, v. MARTIN, Respondent.
Attorney:Vories, for appellant. Leonard, for respondent.
Court:Supreme Court of Missouri

Page 508

16 Mo. 508 (Mo. 1852)

MILLER, Appellant,


MARTIN, Respondent.

Supreme Court of Missouri.

July Term, 1852

1. A. sets fire to the stubble on his inclosure, and, without any negligence or default on his part, and by inevitable accident, it escapes and crosses over the open prairie to the inclosure of B. and burns his fence. Held, A. is not liable to an action for the damage.

2. Quere, If the stubble is fired on Sunday?

Appeal from Andrew Circuit Court.

Vories, for appellant.

The action on the case for injuries to land can only be maintained for a mal-feasance, mis-feasance or non-feasance, and the appellant has been guilty of neither. 1 Chitty's Plead., 7 Am. ed., 95, and note 206; also page 150; Tidd's Practice, 4.

It being lawful for the appellant to burn the stubble and rubbish in his field to prepare it for cultivation, he is not liable for any accident which might happen, unless he or his servants acted in a negligent or improper manner in the burning thereof. Finley v. Langston, 12 Mo. 120; Stephens' Nisi Prius, 1011, 1012; Clark v. Foot, 8 J. R. 421; Panton v. Holland, 17 J. R. 92, and cases there cited; Livingston v. Adams, 8 Cow. 175.

The case made out by the proof is not such wrongful setting out fire as is prohibited by our statute; nor is it a case of wrongful or negligent conduct, for which an action is maintainable at common law.

Leonard, for respondent.

1. The defendant was guilty of an illegal act in setting fire to the combustible matter on his grounds on Sunday, and is liable for all injuries arising therefrom.

2. The direct effect of the defendant's act was the destruction of plaintiff's property, and however different the law may be in criminal prosecutions, yet, when reparation is sought for the injury, it is quite immaterial as to the right of action, with what intent the act was done, or what the probabilities of the injury were, or what endeavors were used to arrest the injury. 1 Chitty's Plead. 147, 197, 205; McAllister v. Hammond, 6 Cow. 343; 2 Iredell 207; Hodges v. Weltberger, 6 Monroe 337; Amick v. O'Hara, 6 Blackf. 258; Weaver v. Ward, Hobart 289; Sheridan v. Bean, 8 Met. 284; Guille v. Swan, 19 Johns. 381; Newson v. Anderson, 2 N.C. 42; 2 Green. Ev. sec. 224.


SCOTT, Judge.

This was an action, begun in 1847, by Martin, in his lifetime, against Miller, for damages. The declaration contained two counts, both at the common law.

It appears that Martin owned a farm about half a mile north of the defendant's, and between them there was an open prairie. The defendant had begun to plow a field preparatory to the sowing of oats, but, in consequence of the quantity of stubble and other such matter upon the ground, he was obliged to desist. In order to remove the obstacles which impeded his plowing, he put fire to them. There had been run, sometime before, around the land thus fired, furrows, making the width of a rod. The defendant and a servant boy remained to watch the fire. The wind rose high about the middle of the day, although it was calm in the morning. In the absence of the boy, who had gone for a drink of water, the fire escaped and was communicated to the plaintiff's fencing and burned a quantity of his rails. The court refused an instruction asked by the defendant, to the purport that if he had used due diligence in firing his land, and, notwithstanding, the fire had escaped and burned the plaintiff's rails, without the least fault or neglect on his part, they will find against the plaintiff. And, at the instance of the plaintiff, instructed the jury that, if the defendant himself, or by another, set out fire which ran to, and communicated with, and burned the fence of the plaintiff, they will find for him, otherwise they will find for the defendant. There was a verdict for the plaintiff, and, after an unsuccessful motion for a new trial, the cause was brought to this court by appeal.

Some confusion was produced in the argument of this cause by reading cases in which the only point involved was the form of the action of the injury committed; whether it should be trespass vi et armis, or an action on the case. The propriety of the application of the principle whose aid is sought to shield the defendant from damages for the act complained of, does not depend on the circumstances whether the injury was direct or consequential; it is equally applicable whether the remedy for the alleged wrong is trespass or case. It is conceded that this is an action at common law, uninfluenced by any statutory provision.

1. It must...

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