Fred England & Co. v. Wabash R. Co.

• Decision Date: 06 November 1905
• Citation: 114 Mo. App. 546,90 S.W. 111
• Court: Missouri Court of Appeals
• Parties: FRED ENGLAND & CO. v. WABASH R. CO.

90 S.W. 111

114 Mo. App. 546

FRED ENGLAND & CO. v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. RAILROADS—INJURIES TO ADJOINING PROPERTY BY FIRE—EVIDENCE.

In an action against a railroad company to recover damages for goods destroyed by fire, evidence considered, and held sufficient to authorize the inference that sparks from defendant's engine were the source of the fire.

2. SAME—GOODS ON LEASED PREMISES OF DEFENDANT.

Rev. St. 1899, § 1111, providing that railroads shall be responsible in damages to persons whose property may be injured or destroyed by fire communicated by locomotive engines, authorizes recovery for loss, although the goods destroyed were in a building belonging to the railroad company and leased to a third person, and although the owner of the goods was in possession of the building contrary to the terms of the lease.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by Fred England & Co. against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Geo. S. Grover and Edward Higbee, for appellant. C. C. Fogle & Sons and Geo. N. Davis, for respondents.

BROADDUS, P. J.

The plaintiffs claim that their goods and chattels were destroyed on the 9th day of December, 1904, at Glenwood, Mo., by fire communicated by one of defendant's locomotive engines. The petition alleges that the goods were in a certain house belonging to defendant company, which had been leased to C. R. England by said company for a period of five years to be used and occupied for hotel purposes. The answer of defendant, after a general denial of the allegations of the petition, among other defenses, sets up that the house in question was leased to the said C. R. England, to be occupied only as an eating house; that by the terms of said lease it was not assignable, and it was further provided that said premises should not be sublet by the lessee without the written consent of defendant; that, shortly after the making of said lease, in addition to an eating house, the said lessee, without the knowledge or consent of defendant, opened up a hotel in said building, and continued to conduct it as such without its consent or knowledge until it was destroyed by fire; and that, if plaintiffs had any interest in said hotel, or the management thereof, or the furniture therein destroyed by fire, they were so in possession of said building and so conducting said hotel and eating house as assignees or subtenants of said lessee in violation of the terms of said lease, at their own hazard, and the defendant is not liable to plaintiff's for the loss of said goods by fire as claimed in the petition. The trial resulted in a verdict and judgment for plaintiffs, and defendant appealed.

The first contention of defendant is that there was a failure of proof on the material allegation of the plaintiffs' petition that their goods were destroyed by fire communicated by its locomotive engine; second, that the action is one arising solely on contract, and not on statute. Section 1111, Rev. St. 1899. It was shown that defendant maintained a depot...