Morris v. Mattingly

• Decision Date: 28 February 1920
• Citation: 218 S.W. 922,204 Mo.App. 669
• Parties: S. O. MORRIS, Appellant, v. JOHN M. MATTINGLY, Respondent. EMMA MORRIS, Appellant, v. JOHN M. MATTINGLY, Respondent
• Court: Missouri Court of Appeals

218 S.W. 922

204 Mo.App. 669

S. O. MORRIS, Appellant, v. JOHN M. MATTINGLY, Respondent.

EMMA MORRIS, Appellant, v. JOHN M. MATTINGLY, Respondent

Court of Appeals of Missouri, Springfield

February 28, 1920

Appeal from Circuit Court of Butler County.--Hon. John A. Gloriod Special Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Wilson Cramer and Henson & Woody for appellants.

Hon Lew R. Thomason for respondent.

FARRINGTON J. Sturgis, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

This is a suit brought under section 5433, Revised Statutes, 1909, providing for double damages if a person shall willfully set fire to any woods, marshes or prairies so as to occasion damages to another person. There were two cases filed in the circuit court, one by plaintiff S. O. Morris, and the other by his wife, Emma Morris, both against the defendant, in which petitions it is alleged that the defendant willfully set fire to brush, weeds and grass on his land which adjoined the land of Emma Morris; that it was done at a time when there was much combustible vegetation between the defendant's land where he set out the fire and plaintiffs' land, and that the same was done when the defendant knew that the fire would spread to plaintiffs' property. The claim for damages made by S. O. Morris was that the fire destroyed a corn crop which he was growing on his wife's land and he seeks damages for that. The same facts are set up in the petition filed by his wife, charging that her property was damaged in that trees were injured and destroyed and fencing was destroyed by the fire. By agreement of the parties the suits were consolidated and tried as one. It appears from the record that on the first trial of this cause in the circuit court Emma Morris recovered a judgment but her husband S. O. Morris did not. On motions filed by plaintiffs a new trial was granted. At the conclusion of the testimony on the second trial the court gave an instruction in the nature of a demurrer to the evidence and directed a verdict for defendant, judgments were entered accordingly, and it is from this that these appeals are taken.

The appellants complain of the action of the trial court in directing a verdict for the defendant, claiming that a prima-facie case was made which should have been submitted to the jury. Under these conditions we can only look to the plaintiffs' evidence to see whether there was sufficient proof to have justified a judgment in plaintiffs' behalf had judgments been rendered in favor of them. If there is not sufficient evidence to have sustained a judgment in plaintiffs' favor, then the action of the trial court was correct otherwise it was erroneous. [Fiester v. Drozda, (Missouri Appeal) 185 S.W. 748; Perkins v. Kilpatrick (Missouri Appeal), 193 S.W. 876; Bingaman v. Hannah, 270 Mo. 611, 194 S.W. 276.]

On turning to plaintiffs' evidence we find that the defendant owned a farm which adjoined the farm of plaintiff, Emma Morris, on the north and west, and that immediately west of Emma Morris' farm was an old deadening where most of the trees had been cut and which was grown up in wild grass. Just east of this deadening on her land there was twenty-five or thirty acres of good timber standing, and east of this timber was a corn field which had been planted by S. O. Morris; that Mattingly's land which was called a deadening and the wooded land belonging to Emma Morris was covered with dry stuff such as leaves, brush and grass; that at the time the fire was put out by defendant, (quoting S. O. Morris, one of the plaintiffs) "it was an awful dry time when the fire occurred on November 22, 1917. The fire was started just west of my wife's land in the deadening. There was a little neighborhood road angling through the deadening which left a V-shaped piece of the deadening between the road and the woods. When the fire was set there was a strong wind blowing toward the east and the fire immediately spread to my wife's land, burned through the woods, killed the trees and burned up the fence and corn. It burned nine hundred feet of rail fence on the west side of the corn, one hundred and eighty-five feet on the north side and twelve hundred and thirty-eight feet of cross fence of slats, and about two hundred feet over on the river. I do not think that this strip of woods had been burned off for about fourteen years. The rail fence running down through the woods was worth about forty-eight dollars and it was an outside fence that enclosed my crop. The picket fence was worth about thirty-two dollars. There was about sixty dollars worth of my corn destroyed by the fire." The same witness says that he noticed the fire about two or three o'clock in the afternoon.

The defendant admitted on cross-examination that his feeling toward Morris was bad, and that in November, 1917, his feelings toward him were not good. We think that under this evidence it could not be declared as unreasonable should a jury find that the act complained of was willful. It is true that the defendant testifies that he set the fire out at eight o'clock in the morning for the purpose of burning off his land and clearing it, and that at that time...