Bridgeforth v. Proffitt

• Court: Missouri Court of Appeals
• Writing for the Court: STONE; TITUS, C.J., and HOGAN; BILLINGS
• Citation: Bridgeforth v. Proffitt, 490 S.W.2d 416 (Mo. App. 1973)
• Decision Date: 17 January 1973
• Docket Number: No. 9180,9180
• Parties: James BRIDGEFORTH and Sylvia Bridgeforth, his wife, Plaintiffs-Respondents, v. Harrison PROFFITT and Geraldine Proffitt, his wife, Defendants-Appellants.

Page 416

490 S.W.2d 416

James BRIDGEFORTH and Sylvia Bridgeforth, his wife Plaintiffs-Respondents, v. Harrison PROFFITT and Geraldine Proffitt, his wife Defendants-Appellants.

No. 9180.

Missouri Court of Appeals, Springfield District.

Jan. 17, 1973.

Woolsey, Fisher, Clark & Whiteaker, Russell G. Clark, Springfield, for defendants-appellants.

Moore & Brill, John C. Holstein, Richard D. Moore, West Plains, for plaintiffs-respondents.

STONE, Judge.

In this jury-tried action at law to recover for the loss of personal property destroyed on April 8, 1970, by fire which allegedly spread from defendants' adjacent farm, plaintiffs James Bridgeforth and Sylvia Bridgeforth, husband and wife, obtained a judgment for $3,000 from which defendants Harrison Proffitt and Geraldine Proffitt, husband and wife, appeal. Defendants' insistence here that plaintiffs did not make a submissible case either on the issue of liability or on the issue of damages requires a factual review.

Plaintiffs resided with their two sons, then five and seven years of age, in a 12 60 mobile trailer home situate on a farm on the west side of a north-and-south country road near Montier in Shannon County, Missouri, and (as the aerial photograph in evidence indicates) about one trailer length north of the east-west fence line between that farm and the adjoining farm on which defendants' home stood 'approximately' 150 yards south-southeast of the trailer, so thought plaintiff James, the only witness of whom inquiry was made concerning this distance. In the general area between defendants' home and plaintiffs' trailer, there were four outbuildings, all on defendants' land. No measurement of the distance (a) between either defendants' home or plaintiffs' trailer and any one of those four outbuildings, or (b) from any outbuilding to any other outbuilding, was shown in evidence, and only one of those distances, namely, the distance of 'about' three feet from the northwest corner of defendants' home to their pumphouse, was even estimated. However, an aerial photograph taken on April 22, 1971, more than one year after the fire, on which all of the relevant structures and sites were identified and lettered by witnesses, provided some information as to relative distances and locations. Roughly calculated, it appears from that aerial photograph that, if a line had been drawn from defendants' pumphouse at the northwest corner of their home to plaintiffs' trailer, defendants' brooderhouse would have been slightly east of that line and about one-quarter of the distance from the pumphouse to the trailer, defendants' toolshed would have been somewhat farther to the east of that line and about midway between the pumphouse and the trailer, and defendants' 'little barn' would have been a like distance to the west of that line, about due south of the trailer, and less than one-third of the distance from the pumphouse to the trailer. On the date of the fire under discussion, defendants admittedly had an open trash tub which was located 'about 30 feet west' of and thus behind their home at a site designated on the aerial photograph. Whether or not defendants (or one of them) had, on the morning of the fire, burned trash in this open tub was a contested factual issue upon trial.

Witness Duane Ledgerwood, 'a forestry aid' who had been reared in that neighborhood and had worked 17 years on a fire tower southwest of defendants' home, was on duty in the tower when, about 11:30 to 11:40 A.M. on April 8, 1970, he spotted smoke on defendants' land between their home and plaintiffs' trailer. He thought he had seen the fire 'when it started up'--'it was a small brown and white ball of smoke.' In his opinion, it was 'some form of vegetation' burning. Ledgerwood immediately communicated with Rossie Bacher, an experienced pilot employed by the Forest Service who was flying 'the fire patrol plane' that morning and asked him to check on this fire. About 11:50 A.M. Bacher called Ledgerwood to come to the scene of the fire and the latter reached defendants' home some ten minutes later. At that time, Ledgerwood observed that plaintiffs' trailer and two of defendants' outbuildings, namely, their brooderhouse and toolshed, were 'pretty well consumed,' that there was 'a continuous fire line' from the trailer 'back almost to (defendants') house,' and that the northwest corner of the pumphouse was on fire. He immediately joined defendant Harrison in an effort, eventually successful, to extinguish the pumphouse fire. Ledgerwood could not say whether defendants' little barn was on fire when he arrived, but he knew that it burned before he left. While on duty in the tower that morning he had seen no smoke in the area around defendants' home prior to that spotted about 11:30 to 11:40 A.M.

When, in response to Ledgerwood's request, pilot Rossie Bacher flew over that area 'a little before noon . . . the fire was pretty small . . . probably 15 or 20 steps across the fire,' and it was entirely on defendants' property. Since vegetation was dry and there was a 25 to 35 mph wind out of the south creating 'high fire danger,' he immediately reported this 'as a wild fire' with no one caring for it and called Ledgerwood to come from the fire tower. At the request of defendants' counsel, Bacher drew a line on the aerial photographic exhibit enclosing the area that was burning when he arrived, the southernmost portion of which was (so defendant Harrison readily conceded on cross-examination) 'just a little north' of defendants' trash tub. The only structures within that area were defendants' brooderhouse which had burned already and their toolhouse which was burning. However, the fire 'was spreading both ways (but) more rapidly to the north than to the south.' And while Bacher made repeated passes over this area to arouse someone in defendants' home or plaintiffs' trailer, he watched the fire spread and saw the trailer and the northwest corner of defendants' pumphouse catch on fire. Finally, defendant Harrison came outside and immediately began to fight the pumphouse fire. By that time Ledgerwood on his way to the fire was within a mile of it, so Bacher left to check another fire.

Four witnesses testified concerning subsequent conversations with defendants Proffitt. The first of these was plaintiff James. Both he and his wife worked in Birch Tree, and knowledge of the fire was first communicated to him by his foreman during the noon hour. When he reached home, he found his trailer and its contents completely burned and observed the volunteer fire department from Birch Tree and 'people from the conservation department' plowing with a little dozer and putting out brush fire on defendants' land. Plaintiff James' account of his conversation with defendants shortly thereafter was that 'I talked to Mr. Proffitt and I ask(ed) him if he knew how the fire started and he said that 'we had burnt trash' that morning and Mrs. Proffitt said that she had throwed a bucket of water on it to put it out.' (All emphasis herein is ours.)

Edwin Rockwell, plaintiff Sylvia's father who lived some 300 yards from plaintiffs' trailer, was not home at the time of the fire, but he talked with defendants at their home the following morning. When asked to 'tell what was said by either one of the Proffitts or both of them, if something was said as to the cause of the fire,' he responded in these words: 'Well yes, they both agreed that they had been burning trash and that they thought they had the trash fire out and Mr. Proffitt even stated that he thought his wife had put a bucket of water on it prior to the fire but evidently there wasn't.'

Clayton L. Swinson, a farmer near Montier, and his wife drove to defendants' home that same evening to view the damage. Defendants came to the Swinson automobile and, as witness Swinson reported, 'we started talking and during the course of the conversation Mrs. Proffitt stated that she had had a fire burning trash that morning and she had poured water onto the fire to put it out and during this conversation Mr. Proffitt was present and Robin (defendants' daughter) also.'

The last of the conversational witnesses was Gary Foulk, a resident of Montier who was the proprietor of a service station on U.S. Highway 60 about two miles north of defendants' home. After sighting smoke from the fire, he 'was there during the fire and after.' In his conversation with defendants after the fire, he inquired whether he could be of any assistance to them and, upon their response in the negative, 'we went into the discussion of the cause of it and they told me that they'd been burning trash that morning but they had thought it was out.'

Upon trial, defendants emphatically denied that either of them (a) had set a fire in the trash tub on the morning of the fire or (b) had so stated to plaintiff James, any of plaintiffs' witnesses, or for that matter anyone else. According to defendant Harrison, about 11:15 A.M. he had walked to the mailbox on the north-south country road some 75 feet east of his home and on that occasion had seen no smoke or fire but had 'heard some kids playing . . . behind the trailer.' Both defendants insisted that they did not know how the fire started. Defendant Harrison said that, when pilot Bacher's repeated passes over the area prompted him to go outside and he discovered the northwest corner of the pumphouse on fire, the area then ablaze was not as large as that within the perimeter of the rough circle drawn by Bacher on the photographic exhibit--'it wasn't that big a circle; somebody is wrong.' But, as we have noted, defendant Harrison quickly agreed that the southernmost portion of the area enclosed within Bacher's rough circle was 'just a little north' of the open trash tub. There was no fire south of the pumphouse and between the back or west side of defendants' home and their trash tub.

Although defendants and their daughter denied that any of them had set a trash fire on...