Kahle v. Hobein

• Decision Date: 23 April 1888
• Parties: FRITZ KAHLE, Appellant, v. WILLIAM HOBEIN, Respondent.
• Court: Kansas Court of Appeals

30 Mo.App. 472

FRITZ KAHLE, Appellant, v. WILLIAM HOBEIN, Respondent.

Court of Appeals of Missouri, Kansas City.

April 23, 1888

APPEAL from Gasconade Circuit Court, HON. RUDOLPH HIRZEL, Judge.

Affirmed.

Statement of case by the court.

This action was begun before a justice of the peace under section 2129, Revised Statutes, and is based on the following complaint, to-wit:

" Plaintiff states that on or about the third day of April, 1887, at the county aforesaid, one William Hobein did then and there wilfully set fire the woods on his own land which said fire spread over the woods of the neighborhood on to the land of the plaintiff, Fritz Kahle, consuming on the same about eight hundred rails and a lot of fire-wood of the value of thirty-six dollars, also destroying on the land of said Fritz Kahle growing trees and timber of the value of seventy-five dollars. Plaintiff further states that, by such fire started by the defendant, he has sustained a total damage of one hundred and eleven dollars for which he prays judgment."

No objections being made to the form of the statement and it being agreed upon by counsel in the case that the complaint was based upon section 2129, of the Revised Statutes, and a jury being waived, the plaintiff offered evidence showing " That the lands of plaintiff and defendant in Gasconade county, Missouri, are adjoining; that, during February and March, and until the third day of April, 1887, the defendant Fritz Hobein, had cleared a certain tract of timber land that, on the third day of April, the defendant set fire to two oak trees, which had been grubbed and were lying on said clearing and that some brush-piles on said clearing caught fire from said trees; that defendant and his hired man extinguished said fire which had partially spread over the ground and confined the same to the aforesaid trees and one brush-pile between them; this was in the forenoon. In the afternoon the hired man went out to the clearing and grubbed and burnt up brush on said clearing until five o'clock, p. m., when the fire had nearly burnt down. On the following day, Sunday, April 4, in the afternoon, there was fire on defendant's clearing and some of his rails lying scattered on the ground were burnt. Smoke was seen arising from said clearing on Sunday morning, about eleven o'clock. There was a heavy gale blowing in the direction from defendant's towards the plaintiff's land. A large brush fire was seen about one-fourth of a mile from defendant's land and spreading rapidly towards plaintiff's land, the flames leaping five and six feet from the ground. This was shortly before noon. At half-past eleven, a. m., the fire was burning briskly at the clearing and spreading rapidly. About noon the fire spread over one hundred and sixty acres of timber land belonging to plaintiff, destroying rails and cord-wood and many trees, and doing great damage, amounting to more than sued for in the petition. Plaintiff and the neighbors put the fire out during Sunday afternoon."

Plaintiff here closed his case and defendant asked the following instrucrion in the nature of a demurrer:

" The court declares the law to be that under the evidence the plaintiff cannot recover; that this action being brought under section 2129, Revised Statutes of Missouri, the evidence fails to show that the defendant wilfully set fire to any woods as contemplated by the statute."

This instruction was given and plaintiff appeals.

RYORS & VOSHALL, for the appellant.

I. Under the statute (Rev. Stat., sec. 2129) any one who permits fire to escape from any woods, etc., of his own, so as to damage his neighbor, is responsible, provided that this fire, in the first instance, was intentionally placed on his own woods or timber land by himself, or agent. The statute may be taken as penal, but appellant does not think that it is correct action on part of trial courts to so strictly construe penal statutes as to defeat the plain object of the legislature in passing the law. The true way to construe penal statutes is to fairly construe and faithfully apply them according to the intent of the legislature, in cases of doubt only leaning to mercy. Sedgwick on Stat. and Const. Laws (2 Ed.) 287; Manker v. Faulhaber, 94 Mo. 430.

II. Appellant contends there is nothing doubtful in the statute which admits of leaning in any direction. The law in question was passed prior to 1845. At the time of its passage it was limited in its operation by a section which read that this law should not apply to any one who was burning up anything on his own land, and the fire accidentally escaped. Stat. of Mo. 1845, " Woods, Marshes and Prairies." While the law was so limited in its application the Supreme Court of this state, in the case...