Miller v. Sabinske, 22927

• Decision Date: 06 April 1959
• Docket Number: No. 22927,22927
• Citation: 322 S.W.2d 941
• Parties: John A. MILLER, Zelma L. Miller, Jerry D. Miller and Suzanne Miller, by Zelma Miller, Her Next Friend, Respondents, v. Robert J. SABINSKE, Appellant.
• Court: Missouri Court of Appeals

Page 941

322 S.W.2d 941

John A. MILLER, Zelma L. Miller, Jerry D. Miller and Suzanne

Miller, by Zelma Miller, Her Next Friend, Respondents, v. Robert J. SABINSKE, Appellant.

No. 22927.

Kansas City Court of Appeals, Missouri.

April 6, 1959.

Francis G. Hale and Robert E. Coleberd, Liberty, for appellant.

Alan F. Wherritt and William J. Turpin, Liberty, for respondents.

HUNTER, Judge.

This is an action for damages to plaintiffs-respondents' trees, fence, corn crop and grass alleged to have been caused by the defendant-appellant, Robert J. Sabinske, setting a fire on his premises for the purpose of clearing his land of weeds, brush, and grass for residential development and negligently permitting the fire to spread to plaintiffs' adjoining land.

After trial and in accordance with the jury's verdict plaintiffs received judgment for $2,000 from which sum plaintiffs voluntarily remitted $517, leaving a reduced judgment of $1,483.

On this appeal the questions presented are: (1) Was a submissible case made against defendant? (2) Was there reversible error in plaintiffs' instructions?

In order to determine the submissibility question we set out the substance of plaintiffs' evidence. Defendant did not offer any evidence.

Plaintiffs and defendant owned adjoining farm land in Clay County. Their farms were separated by an east and west fence. Defendant's land was north of the fence, and plaintiffs' land was south of it. Defendant had graded and staked out streets on his farm as a part of a housing development project, and had a lot of equipment and men continuing with that work.

In early September defendant had scraped off a strip approximately seven feet wide north of and along the fence line between the two farms, and had made a 'windrow' of the scraped up weeds, grass and some dirt about 30 inches high and 30 inches wide. This 'windrow' was interrupted by a ravine or gully which extended several hundred feet through both farms. The windrow stopped at each edge of the gully. The gully was so rough and deep the blading machine used to make the windrow was not used in it, and the gully on both sides of the fence was filled with dry weeds, grass and underbrush.

Defendant in early and middle September had been setting fire to brush and weeds on his tract of land. This had been going on for two or three weeks prior to September 20th. The one of September 20th was the only one close to plaintiffs' line.

On or about September 20, 1956, four employees of defendant cleared off brush on defendant's land and proceeded to set fire to it and burn it. The purpose of the work was to burn the high weeds on defendant's land so as to prepare the land for development as a subdivision. This September 20th fire got into the mentioned windrow and also to a very small extent got into plaintiffs' fence and land and caused some minor damage. Defendant's employees were at the scene putting it out.

One of the plaintiffs, John Miller, testified that after the fire of September 20, 1956, (Thursday) he went home that weekend.

'Q. Was there (then) any smoking or smoldering to your knowledge? A. I wasn't aware of it. I didn't see any.'

Mrs. Zelma Miller, another of the plaintiffs, saw the smoke from the September 20th fire, drove to the scene 'but they had it all out by that time'. However, she further stated, 'there were still some of defendant's workmen there'. She was then asked,

'Q. What were they doing? A. Well, at that time they were still fighting it. They just about had it out, but they were fighing it * * *.

'Q. Was any of that windrow burning on the 20th when you were there that afternoon? A. Yes. It was. Yes.'

C. W. Wright testified for plaintiff:

'A. They (defendant's workmen) had been doing some bulldozing in there, yes, and burning off some weeds and grass and stuff out there on the land north of that (of plaintiffs' farm).

'Q. That was prior to the 25th? A. Yes.

'Q. You could see the smoke. A. Oh, yes. I saw the smoke off and on there all evening.'

It was extremely dry in September, 1956. A fire would burn over (even) bluegrass any time through that fall. The prevailing wind in September was from the south and southwest.

On September 25, 1956, about 4:30 p. m. it was discovered that a large fire was burning in the same general vicinity as that of September 20th. One of the first witnesses to arrive was C. W. Wright who stated that at the time of his arrival there was fire on each side of the draw, and fire in plaintiffs' cornfield and meadow. On the north side of the division fence it was already burned off and was in the smoldering stage. The fire was still burning strong on the south side of that fence. By the time he and others put out the fire on the plaintiffs' side in the corn field it had ceased in the draw. The wind was from the northwest driving the fire to the southeast. That evening after the fire was put out elsewhere, he returned and turned over some of the 'windrow'. 'There was fire down there, it would burn your hand, you couldn't put your hand down there. So Mr. Miller brought us some pitchforks and we turned that dirt over and watered it with a hose, water hose. * * * It had been windrowed with a bulldozer, but it was burning under it, * * * Did that lead right up to the gully or ravine? Yes.'

Plaintiffs' witness, Ralph Wilson, was one of the firemen who helped extinguish the fire. On his arrival he observed that the fire had been north of the division fence on defendant's land, where most of it 'was burnt off' but was still smoking for 150 yards along the windrow. That part of the ravine on defendant's land was burned off, and still smoking, but that part of it on plaintiffs' land was still burning. There was fire all along the fence. Plaintiffs' corn field was on fire. The wind was blowing from the northwest to the southeast. The fire had already 'burnt out on the north side' and 'it was going to the south then.'

John Miller testified that on his arrival at the scene there were no spots on defendant's side of the fence that weren't burned but there were some on plaintiffs' side between the burned area and the fence that were not burned.

'Q. And there were spots burned on both the north and south side of the fence? A. Yes, sir.

'Q. Linking the two together. A. Yes, sir.'

Some of defendant's employees were at the scene of the September 25th fire but did not participate with the firemen or others in the endeavor made to extinguish it.

The jury was shown fourteen colored slide pictures of the scene of the fire taken shortly after it occurred. These pictures included such things as the burned fence, trees, corn and bluegrass, the mentioned gully, the bladed area and a portion of the windrow location.

We turn to the testimony concerning the damage from the fire.

The corn crop was matured and ready to harvest. Corn from the undamaged portion of the field was sold for $1.34 a bushel. A little over two acres was destroyed by the fire. The average yield was 75 bushels to the acre. The damage according cording to plaintiffs' witness was '$210.00 up or down a few cents.'

The black locust trees in the burned area died from the ground up completely. The net value of the trees before they were completely burned was $250.

135 fence posts were burned completely off. They were worth $1 each. Labor to replace the fence that had been burned out would cost $600. The fire destroyed the galvanized part of much of the fence. It would cost $125 for replacement wire, and allowing $25 for depreciation made an actual damage to the wire of $100. A fence gate of $20 value was destroyed.

As to the bluegrass, John Miller testified, 'again by measurement there was one acre, very slightly over, that was burned over that had already been contracted to be sold for sod.' Miller volunteered the sod was under contract to be sold at $150 an acre. On objection this voluntary statement was stricken. He then was asked.

'Q. Mr. Miller, what in your opinion was the value of the bluegrass that was burned? A. $150.00 an acre.'

He testified that three-tenths of an acre of other grass was destroyed of a value of $18. He paid the fire department $25 for its services.

Appellant's first point is that no submissible case was made because (1) The evidence did not show the origin of the September 25, 1956, fire; (2) Plaintiffs' evidence shows that the fire started by defendant on September 20, 1956, had been put out on that date; (3) Plaintiffs' evidence fails to show that defendant had any connection with the September 25, 1956, fire; (4) And further fails to show any connection between the fires of September 20, 1956, and that of September 25, 1956; and fails to show any act of defendant on September 25, 1956, which would show that he set the fire on that date. We limit ourselves on this appeal to these contentions.

In ruling on the question of whether the evidence made a submissible case for the jury the appellate court must take as true every fact and circumstance favorable to plaintiffs which the evidence tends to prove, and give to plaintiffs the benefit of all reasonable inferences which may be fairly drawn therefrom. Capra v. Phillips Investment Co., en Banc, Mo., 302 S.W.2d 924; Sibert v. Boger, Mo.Sup., 260 S.W.2d 569.

This case involves the question of liability for the alleged spread of a fire causing damages to another where the fire has been knowingly and purposefully set for a legitimate purpose on defendant's premises by his employees acting within the scope of their employment.

The rule is that when an owner of property sets a fire on his own premises for a lawful purpose, and not in violation of any statute, he is not, in the absence of a statute to the contrary, liable for damages caused by the spread of the fire to the property of another unless he was negligent in starting or negligent in controlling the fire. Steffens v. Fisher, 161 Mo.App. 386, 143 S.W. 1101; Belk v. Stewart, 160 Mo.App. 706, 142 S.W. 485; ...