Willard v. Bethurem

• Decision Date: 15 November 1950
• Docket Number: No. 6903,6903
• Citation: 234 S.W.2d 18
• Parties: WILLARD et al. v. BETHUREM.
• Court: Missouri Court of Appeals

Page 18

234 S.W.2d 18

WILLARD et al. v. BETHUREM.

No. 6903.

Springfield Court of Appeals, Missouri.

Nov. 15, 1950.

Bradshaw & Fields, John F. Low, Lebanon, for appellants.

Donnelly & Donnelly, David Donnelly, Lebanon, for respondent.

VANDEVENTER, Presiding Judge.

This is an action for damages caused by a grass fire. It was tried to a jury which returned a verdict for defendant. From a judgment rendered thereon, plaintiffs have appealed. For convenience and clarity we will hereafter refer to them as plaintiffs and defendant.

Plaintiffs assign as error the giving of instructions 6, 9 and 13 at the request of the defendant.

The amended petition, upon which the case was tried, states that on the 13th day of December, 1948, plaintiffs were owners and in possession of 180 acres of land (which was particularly described) in Laclede County, Missouri. That on that date, defendant, who owned adjoining land, carelessly and negligently (a) started a fire thereon and (b) thereafter 'carelessly and negligently caused and allowed said fire which he had started on his own premises to escape to the lands of plaintiffs;' that as a result of defendant's 'careless and negligent acts in starting said fire or allowing said fire to escape to plaintiffs' lands, plaintiffs were damaged' in the sum of $1890, for which they pray judgment.

Defendant answered and denied all the allegations in each paragraph of plaintiffs' petition.

The record is voluminous but a statement of the facts relevant to the issues raised need not be so. They are briefly, plaintiffs and defendant owned adjoining tracts of land which were to some extent wild and unimproved and covered with sage grass, which the evidence shows was practically worthless as forage for domestic animals. Their respective tracts of land were separated by a wire fence. On the day in question, defendant and his employee went to a field on defendant's property which adjoined the lands of plaintiffs, for the purpose of plowing up the sage grass. They were using a farming implement known as a Graham Homme plow or 'chisel', that did not turn the grass under the soil and which became clogged with the high sage grass as they progressed with the plowing. It cultivated a 7-foot swath and they had circled the field twice, making a 14 foot strip over which they had again run the farming implement. This method of cultivation was not entirely satisfactory and defendant set fire to the sage grass on the uncultivated portion of his field to burn it off so he could more readily prepare the land for seeding. The overwhelming evidence shows the weather was extremely dry. The evidence is somewhat conflicting as to whether a breeze was blowing at the time the fire was set, but concededly a breeze was blowing toward plaintiffs' land shortly thereafter. The fire spread across the cultivated strip of land, through the fence and across a ditch onto plaintiffs' land and burned approximately 106 acres of his pasture much of which was in sage grass, timothy, clover and lespedeza. An effort was made by defendant, his employee, and others to control the fire while it was burning on defendant's land and keep it from spreading to plaintiffs' premises, but (so plaintiffs contended) proper back-firing or back furrowing was not resorted to. Plaintiffs also contended that defendant was negligent in setting out the fire and after it was set was negligent in permitting it to escape to their premises. Defendant contended there was no negligence in either instance.

Plaintiffs' first instruction authorized a verdict for plaintiffs if the jury found that the defendant 'after starting said fire carelessly and negligently failed to take proper precautions to control said fire and confine it to said lands * * *', and the damage resulted 'and this is true even though you may also find that the defendant was not negligent in starting said fire on his land.' Plaintiffs' second instruction was based upon the negligence of defendant in setting the fire on his land and instructed the jury that 'if you further find that the defendant on his land and under the conditions then existing carelessly and negligently caused or permitted a grass fire to be started which spread to the lands of plaintiffs and resulted in the damage, * * *' their verdict should be for plaintiffs.

It will be seen from these two instructions that plaintiffs, in accord with their allegations, presented two theories of negligence, one in permitting the fire to spread onto plaintiffs' premises and the other in setting it out under the existing circumstances.

Defendant requested and the court gave instruction No. 9, which follows: 'The court instructs the jury that under the law and the evidence in this case the defendant had the right in the exercise of care and prudence, as defined in other instructions, to put fire out on his own premises to burn off the weeds and sage grass on his land in preparation for cultivation, and if the jury believe and find from the evidence that the defendant set fire for this purpose on his cultivating land adjacent to plaintiffs' land without any intent on his part of setting fire to plaintiffs' said land, then the burden of proof is on the plaintiff and he must show by a preponderance of the evidence that said fire and damage to the plaintiffs' property resulted from the lack of ordinary care and caution, in time, place and manner of setting out said fire upon the part of defendant, under all the circumstances, and the mere fact that plaintiffs' property was damaged does not of itself prove negligence.'

To this instruction, appellants strenuously object and argue that it directs the jury to return a verdict for defendant unless plaintiffs have shown by a preponderance of the evidence that the damage to plaintiffs' property 'resulted from lack of ordinary care and caution, in time, place and manner of setting out said fire,' and completely ignores the negligence alleged in the petition and submitted in plaintiffs' instruction No. 1 relative to defendant's negligence in permitting the fire to spread upon plaintiffs' premises, and also that it further injects the element of intent on defendant's part, which is foreign to the issues of negligence.

We believe plaintiffs' objections are well taken. Two theories of negligence were presented in the petition. Two different theories of liability were presented in plaintiffs' instructions 1 and 2. These two theories were recognized in defendant's instruction No. 6, which required 'plaintiffs to prove by a preponderance of the evidence that such fire was negligently kindled or carelessly managed.' In defendant's instruction No. 7, the jury was informed that though they might find the defendant set out fire on his own land to prepare it for cultivation that if they believed that he used 'due diligence in setting out fire on his land, and further used ordinary care to keep said fires from spreading to the lands of others, and that such fire escaped by accident without the fault or negligence of defendant * * *,' he would not be liable.

Defendant's instruction No. 8 told the jury that if the defendant used due diligence in setting fire to the grass on his land and that notwithstanding that fact, the fire escaped to the land of plaintiffs without any negligence on the part of defendant, plaintiffs were not entitled to recover. From the foregoing, it will be seen that plaintiffs' instructions 1 and 2 and defendant's instructions 6, 7 and 8 were all based upon the theory of negligence in setting out the fire or in negligently permitting it to go upon the land of plaintiffs.

Now instruction No. 9 told the jury that the defendant had the right in the exercise of care and prudence 'to put fire out on his own premises' and if the jury found that he set the fire out 'without any intent' of setting fire to plaintiffs' land, then the burden of proof is on the plaintiffs, who must show by a preponderance of the evidence 'that said fire and damage to plaintiffs' property resulted from the lack of ordinary care and caution in time, place and manner of setting out said fire upon the part of defendant, under all the circumstances, * * *,' and that the mere fact that plaintiffs' pasture was destroyed did not of itself prove negligence. This instruction completely ignores plaintiffs' theory of defendant's negligence in permitting the fire, after it had been carefully set out, if so, to spread to plaintiffs' premises, and permits them to consider only the lack of ordinary care 'in time, place and manner of setting out said fire * * *.' We think this instruction is in conflict with defendant's instructions 6, 7 and 8 and with plaintiffs' instruction No. 1. It permits the jury to arrive at a conclusion without considering a material element of plaintiffs' case and to render a verdict for defendant in a manner not permitted by plaintiffs' instruction 1 and defendant's instructions 6, 7 and 8. We have no way of knowing which instruction the jury followed as they are not consistent. We do not lose sight of the fact that an instruction almost identical with this one was given in the case of Catron v. Nichols, 81 Mo. 80. That case involved facts similar to the present one. The petition alleged that the defendant 'willfully, negligently and carelessly, set out...