McComb v. Baskerville

• Decision Date: 10 January 1906
• Citation: 106 N.W. 300,20 S.D. 353
• Parties: McCOMB et al. v. BASKERVILLE.
• Court: South Dakota Supreme Court

106 N.W. 300

20 S.D. 353

McCOMB et al. v. BASKERVILLE.

Supreme Court of South Dakota

January 10, 1906

Appeal from Circuit Court, Codington County.

Action by S. M. McComb and another against M. R. Baskerville. From a judgment for plaintiffs, defendant appeals. Reversed.

Lee Stover, for appellant. A. Sherin, for respondents.

CORSON J.

This is an action to recover damages for the loss of a certain crop destroyed by fire set by a threshing engine while passing along the highway. Verdict and judgment being in favor of the plaintiff, the defendant appealed.

Several errors have been assigned; but in the view we take of the case it will only be necessary to consider the third assignment of error, which is that the court erred in denying the motion made by defendant at the close of all the evidence to direct a verdict in his favor upon the ground that there was no evidence proving or tending to prove that this defendant was liable for the damages sustained by the plaintiffs. It appears from the evidence that in the summer of 1902 one Clark purchased of the defendant a threshing engine, which not proving entirely satisfactory in September of that year a contract was entered into in which it was agreed between the defendant and Clark that a new engine of a different make should be furnished him and the engine sold to him in the summer taken back, and that the exchange of the engine should be made at Watertown. This contract was introduced in evidence in the case. It appears from the undisputed evidence that on the day previous to the fire the engineer employed by Clark started with the old engine to Watertown, and that when it arrived at Kranzburg, about 6 miles east of Watertown, the engineer in charge had trouble in running it, and that Clark thereupon telephoned to the defendant, Baskerville, to send out two men to take the engine in to Watertown and he would pay them, and also requested Baskerville to send out the new engine; that in compliance with said request Baskerville took two men from his machine shop and directed them to take out the new engine to a point at or near Kranzburg and bring in the old one that the men employed by the defendant, in compliance with Clark's request, took the new engine out to Kranzburg and started back with the old one; that, having some trouble in running the same, it was laid up for the night at a farmhouse about 3 1/2 miles east of Watertown. On the following day being the day on which the fire occurred, one of the two men sent out by defendant in response to Clark's telephone message again started with with the old engine for Watertown one of the men, Hanten, having left the engine at the farmhouse, and does not again appear to have taken any part in running the same. This engineer again having trouble with the engine the said Clark placed upon the same his own engineer, a Mr. Shoulock, and while the engine was being run by these two men the fire which destroyed the plaintiff's property was set, and being unable to extinguish the fire they proceeded with the engine to Watertown and delivered it at the machine shop of the defendant Baskerville.

The appellant, as a witness in his own behalf, testified substantially as follows: "I traded threshing engines with Mr. Clark in the fall of 1902. Mr. Clark was to deliver the engine which he traded at Watertown. He got as far as Kranzburg with it, and then telephoned me to hire a couple of men and he would pay them. He wanted me to hire a couple of men to bring the engines in. They were to bring the engine to Watertown. I did as he requested, and Mr. Clark paid the two men for it. I sent out Mr. Hanten with this [new] engine at Mr. Clark's request. I instructed Mr. Hanten to meet the other engine this side of Kranzburg and bring the other engine in. I received the engine that Mr. Clark was to deliver to me in exchange for the one I was to deliver to him at Watertown. At the time Mr. Hanten and his helper was running this engine to Kranzburg they were working for Mr Clark." Mr. Clark paid them for their work. He further says that one of the two men that he sent out with the new engine and to bring back the old one was working for him by the month and the other by the day. Mr. Clark, in his testimony as a witness for defendant, testified as follows: "I traded engines with Mr. Baskerville in the fall of 1902. I delivered the engine I traded to him here in Watertown. I was to fetch up the engine I traded and make the exchange here at Watertown. *** Q. How did that happen that...