Belk v. Stewart

• Decision Date: 08 January 1912
• Citation: 142 S.W. 485,160 Mo. App. 706
• Parties: BELK v. STEWART.
• Court: Missouri Court of Appeals

142 S.W. 485

160 Mo. App. 706

BELK v. STEWART.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. FIRES (§ 7)—SUFFICIENCY OF EVIDENCE— QUESTION FOR JURY.

In an action for double damages for setting fire to woods by which plaintiff's property was destroyed, evidence held sufficient to take the case to the jury on the issue as to whether a fire started by defendant did the damage.

2. WITNESSES (§ 406) — IMPEACHMENT — ADMISSIBILITY OF EVIDENCE.

In an action to recover double damages for setting a fire which destroyed plaintiff's property, evidence that one who had assisted defendant in trying to control the fire stated a few days after the fire that he did not know plaintiff had a field in the vicinity and if he had known it he would not have permitted the fire to go down there, though inadmissible as evidence against defendant, was admissible for impeachment purposes after a proper foundation had been laid.

3. TRIAL (§ 29)—REMARK OF COURT.

In an action for damages to plaintiff's property from a fire set by defendant, the court remarked in the presence of the jury, during the cross-examination of one of plaintiff's witnesses: "I don't think going over the same ground so much does any good. I suppose that the jury knows more about forest fires than any of the witnesses that are testifying or any of the attorneys in the case." Held, that the remark was improper as being an invitation to the jury to use their own knowledge of forest fires in determining the issues.

4. TRIAL (§ 223)—ORAL INSTRUCTIONS.

Oral instructions to the jury are improper.

5. FIRES (§ 7)—ACTIONS FOR DAMAGES—INSTRUCTIONS.

In an action for double damages for setting a fire by which property belonging to plaintiff was destroyed, the court, after reading the instructions, informed the jury orally that, if they found for plaintiff, the law would require him to double the damages, and that the jury might take that fact into consideration in arriving at their verdict. Held, that the instruction was error as it permitted the jury to award plaintiff less than his actual damages, and was an intimation that if the statute authorizing double damages was wrong, the jury could correct it by allowing one-half of what plaintiff was entitled to.

6. FIRES (§ 7) — DOUBLE DAMAGES — CONSTRUCTION OF STATUTE—"WILLFULLY."

Rev. St. 1909, § 5433, provides that "if any person shall willfully set on fire any woods," etc., a person injured thereby shall make satisfaction in double damages. Held, that "willfully" means wantonly, or with intent that the fire shall be allowed to spread uncontrolled, and the statute does not apply to a farmer who, in the cultivation of his farm or for the protection of his property, while using ordinary care, sets out fire intending to burn over only a limited space and with no intention to permit it to spread beyond his control, and he would not be required to wait until his property was threatened with immediate danger before setting such a fire, and if such fire spreads recovery can be had only at common law on the ground of negligence, unless his conduct is so wanton that willfullness will be inferred therefrom.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by William W. Belk against N. V. Stewart. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

G. Purd Hays, for appellant. Barrett & Farrar, for respondent.

COX, J.

Action for double damages under section 5433, Stat. 1909, for willfully setting fire to woods by which property belonging to plaintiff was destroyed. Trial by jury, verdict for plaintiff for $50, which was doubled by the court, and judgment entered for $100, and defendant has appealed.

Error is assigned in the admission of testimony, in giving and refusing instructions, and misconduct of the trial judge in making certain statements to the jury.

It is first contended that a demurrer to the testimony should have been sustained for the reason that it is not shown that fire started by defendant destroyed plaintiff's property. The evidence shows that the premises of plaintiff and defendant are a mile or more apart, and that defendant set out fire near his own premises 1 or 2 days before plaintiff's property was burned. Immediately after the destruction of plaintiff's property the ground between the premises of plaintiff and defendant was gone over, and it was found that it had all been burned over from plaintiff's premises back to where defendant started the fire, and that the fire which destroyed plaintiff's property had come from the direction of defendant's premises. We think this sufficient to take the case to the jury on that issue.

Defendant admitted that he had set out fire two days before plaintiff's property was destroyed, but contended that he did it for the purpose of burning around his own premises in order to protect them, and that he and his servants had extinguished the fire before leaving it. Witnesses on behalf of plaintiff were permitted to testify that one Jesse Lewis who had assisted defendant in trying to control the fire, and who had been left in charge of part of it by defendant, stated to them in a few days after the fire that he did not know plaintiff had a field down the ridge there, and if he had known it he would not have permitted the fire to go down there. This is assigned as error on the ground that the statements of Lewis would not bind defendant. If this were a correct statement of the facts appellant's position would be correct, but we learn from respondent's additional abstract that the testimony of these witnesses as to what Lewis said was for the purpose of impeachment after a proper foundation had been laid and it was therefore admissible.

During the cross-examination of one of plaintiff's witnesses the court made the following remark in the presence of the jury: "I don't think going over the same ground so much does any good. I suppose that the jury knows more about forest fires than any of the witnesses that are testifying or any of the attorneys in the case." This remark was wholly improper, for it was an invitation to the jury to use their own knowledge of forest fires in determining the issues in the case rather than the testimony of the witnesses.

At the close of the case and after reading the instructions to the jury, the court informed the jury orally that if they found for plaintiff the law would require him to double the damages and that the jury might take that fact into consideration in arriving at their verdict. This was palpable error, but it was error in defendant's favor, for if it had any effect on the jury it was to cause them to assess less than the actual damages, and besides was...