Lee v. Allen
| Decision Date | 03 October 1938 |
| Docket Number | No. 5880.,5880. |
| Citation | 120 S.W.2d 172 |
| Parties | LEE et al. v. ALLEN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, New Madrid County; Louis H. Schult, Judge.
"Not to be published in State Reports."
Action by Albert Lee and others against Thomas B. Allen to recover the value of a barn destroyed by a fire alleged to have been caused by defendant and his employees negligently burning brush on adjoining land while a hard wind was blowing. From judgment for plaintiffs after trial court overruled defendant's demurrer to the evidence, defendant appeals.
Affirmed.
Merrill Spitler and R. F. Baynes, both of New Madrid, for appellant.
Henry C. Riley, of New Madrid, for respondent.
Plaintiffs sued to recover the value of a barn located on their land, which was destroyed by fire. They alleged in their petition that they were the owners of the land and that the barn was situated on this land and that the defendant, by his agents, servants and employees negligently and carelessly set fire to certain brush heaps on certain land near the barn, while a hard and persistent wind was blowing from the direction of the brush heaps towards plaintiffs' barn, and that as a result thereof plaintiffs' barn caught fire and was destroyed. It was admitted that the plaintiffs were the owners of the land upon which the barn was located.
The evidence for plaintiffs was to the effect that in March, 1935, Lee Hunter, Jr., owned some land immediately south of plaintiffs' land; that the land had been planted in peach trees which had become diseased and the peach trees were cut and burned. Some of the brush from the peach trees was burned in piles approximately fifteen feet high and about one hundred feet south of plaintiffs' barn. At the time the brush piles were set fire it was very dry and there was a hard and persistent wind blowing from the south, which had been blowing from that direction for several days. There was evidence that the wind carried sparks and embers from the burning peach trees in the direction of plaintiffs' barn. On the morning that these brush piles were burned and shortly after they were set fire the south side of the roof of plaintiffs' barn caught fire and the barn was totally destroyed. The fire on the roof of the plaintiffs' barn was discovered shortly after the brush piles were set fire.
It was further shown by plaintiffs' evidence that the defendant was superintending the burning of the brush and the clearing of the land for the owner, Lee Hunter, Jr., and employed men to burn the brush heaps and clear the land. This evidence was introduced by plaintiffs over the objections and exceptions of the defendant, in the form of certain questions and answers, given by defendant as evidence in another case growing out of the same occurrence. In these questions and answers, which were read by the plaintiffs in evidence, the defendant testified that he was acting as agent for the owner of the land and was superintending the work of clearing the land and burning the brush and that he employed certain men to do this work.
Two witnesses, Hal Hunter and Albert Lee (one of the owners of the barn), testified to the value of the barn. Hunter testified that he had built barns and owned barns and that he knew the plaintiffs' barn. He gave the dimensions of the barn, material from which it was built and the manner in which it was built. Lee also testified that he was familiar with the barn and described it, gave the dimensions and materials from which it was built and said that he had had experience in building other buildings.
The verdict of the jury was for the plaintiffs in the sum of $200. Defendant filed his motion for a new trial, which was overruled by the court, and the cause reaches us on appeal by defendant.
Defendant (appellant) earnestly contends that the demurrer to the plaintiffs' evidence, which was all the evidence in the case, the defendant having offered none, should have been sustained first; because there was no substantial evidence tending to prove the barn caught fire from the burning brush piles; second, that there was no evidence to connect the defendant with the burning of the brush piles; and third, that there was no substantial, competent evidence relative to the value of the barn.
If appellant's objection to the reading of his testimony given at a former trial were sustained, then there would be no evidence to connect him with the burning of the brush. We think that the trial court properly admitted this evidence; it was properly introduced by respondents, whose attorney only read that part of the testimony relating to the question involved, to-wit, the agency of appellant for Lee Hunter, Jr., in the matter of clearing the land and burning the brush. This testimony clearly showed that he was acting as agent of Lee Hunter, Jr., for this purpose and was admissible as an admission. Vest v. S. S. Kresge Co., Mo.App., 213 S.W. 165; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722.
Appellant next contends that the demurrer should have been sustained for the reason that there was no substantial, competent evidence as to the value of the barn which was burned.
Hunter and Lee, by their testimony, showed sufficient familiarity with the barn in question, to express an opinion relative to the value of the barn, based on their previous experience with similar buildings. Witness Hunter testified that he had built and owned a barn similar to the respondents' barn. Testimony as to the value of property is opinion evidence and is more or less advisory. Witnesses as to value in a case of this kind are not required to be expert or skilled in the strict sense of the term, in order to give opinions on value. They are, however, qualified to give such opinion if it appears that the witness had and utilized means superior to those...
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