Belk v. Stewart
| Decision Date | 08 January 1912 |
| Citation | 142 S.W. 485,160 Mo.App. 706 |
| Parties | WILLIAM W. BELK, Respondent, v. N. V. STEWART, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Christian Circuit Court.--Hon. John T. Moore, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
G. Purd Hays for appellant.
(1) The court committed the reversible error in permitting Eura Davis and Edwin Belk to testify to what Jesse Lewis told them the day after the fire as it was hearsay and could not bind the defendant, Stewart, as defendant was absent when said conversation was had. Cobel v. McDaniel, 33 Mo. 363; Gougue v. Burgess, 71 Mo. 389; Dunn v Altman, 50 Mo.App. 231; State v. Nelson, 166 Mo. 191; Rice v. St. Louis, 165 Mo. 636; Krueger v. Railroad, 84 Mo.App. 358; Vermillion v LeClare, 89 Mo.App. 55. (2). The court erred in giving instruction No. 1 asked by plaintiff. R. S. 1909, sec. 5433; Kahle v. Hobein, 30 Mo.App. 472; Russell v Reagan, 34 Mo.App. 242. (3) The court is not authorized to double the damages on a general verdict as in this case. Ewing v. Eaton, 17 Mo. 466; Lebeaume v. Woodfolk, 18 Mo. 514; Brewster v. Link, 28 Mo. 147; Shrewsberry v. Beautlitz, 57 Mo. 414; Henry v. Lowe, 73 Mo. 96; Herron v. Homback, 24 Mo. 492. (4) The court committed reversible error in giving an oral instruction. R. S. 1909, sec. 1987; Dean v. Chandler, 44 Mo.App. 338; State v. Shipley, 174 Mo. 572. (5) The court erred in making remarks in the presence and hearing of the jury. State ex rel. v. Mfg. Co., 149 Mo. 181; State v. Knowles, 185 Mo. 141; Schmidt v. Railroad, 149 Mo. 269.
Barrett & Farrar for respondent.
Action for double damages under Sec. 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 one or two 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 appellants position would be correct but we learn from respondents 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. 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 misleading. When the jury were told that in arriving at their verdict they might take into consideration the fact that the court would be compelled to double whatever amount of damages they should assess should they find for plaintiff, the court was not only giving an oral instruction but it was erroneous as well. The plain duty of the jury was to determine from the evidence whether or not defendant was liable and if he was, to assess the actual damages, and in determining those questions they had no right to take into consideration the fact that under the law the damages were to be doubled. An instruction of that kind if given in writing, as all instructions are required to be given, would have been error against plaintiff for it would have informed the jury that if they saw fit to do so they could award plaintiff less than his actual damages. It was also an intimation from the court that if, in their judgment, the statute authorizing double damages was wrong they could correct it by allowing only one-half what the plaintiff was entitled to so that when it was doubled under the statute the defendant would not be required to pay more than actual damages. If plaintiff were complaining this would be reversible error but as to defendant it was error in his favor and he cannot complain.
Instruction number one for plaintiff was as follows:
"The court further instructs the jury that a man has the right to set fire around his property to protect the same, but in order to justify him in so doing, his property must be threatened by immediate danger of being destroyed." The defendant asked and the court refused the following instruction:
"The court instructs the jury that if you find and believe from the evidence that the defendant set out fire to burn the leaves and grass on his own premises in order to protect his own property from forest fires, and used ordinary care to keep the fire from spreading to land of others and such fire escaped by accident to lands of another, defendant cannot be held to have willfully set fire to the woods within the meaning of Sec. 5433, Revised Statutes of 1909, and cannot be held liable for any damages caused by such fire."
There seems to have been no controversy as to the fact that defendant had...
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