Norman v. Sheip

• Decision Date: 07 February 1910
• Parties: NORMAN v. SHEIP et al.
• Court: Missouri Court of Appeals

125 S.W. 527

142 Mo. App. 138

NORMAN v. SHEIP et al.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. NEGLIGENCE (§ 111)—FIRE—COMPLAINT.

A complaint alleged that plaintiff rented to defendants a certain building in connection with plaintiff's sawmill plant for defendants' use in manufacturing cigar boxes; that defendants negligently caused a defective stove to be placed in the building, and so negligently used the same that sparks and coals of fire escaped and set the building afire, totally consuming it, together with all the sheds and buildings owned by plaintiff and used in connection with his sawmill and damaged the machinery of the mill to plaintiff's damage, etc. Held to sufficiently allege the causal connection between the negligent manner of putting up and using the stove and the fire resulting therefrom.

2. PLEADING (§ 433)—FAILURE TO DEMUR— CURE BY VERDICT.

While a failure to demur to a petition does not waive the objection that no cause of action is stated, yet an answer admits that a case has been sufficiently stated to call for an answer, and after verdict such a petition, however defectively it has stated a cause of action, will sustain the verdict.

3. PLEADING (§ 433) — PETITION — DEFECTS CURED BY VERDICT.

Where a petition in an action for damages from an alleged negligent fire stated a cause of action, it was not objectionable after verdict for failure to set out specifically the items and value of the property destroyed.

4. PLEADING (§ 426)—PETITION—MOTION TO MAKE MORE DEFINITE AND CERTAIN — WAIVER.

A motion to make the petition more definite and certain is waived by pleading over.

5. APPEAL AND ERROR (§ 1058)—HARMLESS ERROR—EXCLUSION OF EVIDENCE.

The exclusion of a written contract was harmless to defendants where they were allowed the greatest latitude in introducing oral evidence of its contents.

6. APPEAL AND ERROR (§ 1060) — REVIEW — MISCONDUCT OF ATTORNEY.

A judgment will not be reversed because plaintiff's attorney made use of what was alleged to be an "inapt illustration" in his argument to the jury.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by W. W. Norman against Jerome H. Sheip and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This was an action to recover damages from appellants for negligently burning and destroying certain buildings and machinery of the respondent in the town of Hunter on the 15th day of November, 1906.

The petition is as follows (formal parts omitted): "Plaintiff states: That he is, and was at all times hereinafter mentioned, the owner of a certain sawmill, together with the sheds and buildings used in connection therewith, situated in the town of Hunter, county of Stoddard, and state of Missouri, and located on the following described premises to wit: The S. E. ¼ of section 12, township 25 N., range 11 E., in this county, being the premises on which plaintiff had on the 15th day of November, 1906, the sawmill and buildings above mentioned. That the defendants by and through one David Hollis, acting as agent, superintendent, and vice principal of defendants, was occupying, using, and in charge of a certain building that was situated near and used in connection with said milling plant as aforesaid, and was occupied by said defendants for the purpose of handling and gluing certain lumber received by said defendants from this plaintiff for the purpose of preparing same to be used by said defendants in the manufacture of cigar boxes. That said defendants through the said David Hollis, as vice principal aforesaid, while in charge of said building, and on the 15th day of November, 1906, caused to be placed in said room an old, dilapidated, defective, cast-off, and dangerous stove, which said stove was so carelessly, negligently, recklessly, and unskillfully put in said building and used and managed by said David Hollis as vice principal as aforesaid, and others as agents, servants, and employés of defendants in charge thereof, and under the direction of said vice principal, that sparks and coals of fire escaped from and fell out of said old, dilapidated, cast-off, and defective stove and set fire to the said building of this plaintiff, so occupied and in charge of the defendants as aforesaid, and totally consumed said building, together with all the sheds and buildings owned by plaintiff and used in connection with said sawmill as aforesaid, and damaged the machinery of said sawmill to plaintiff's damage in the sum of $1,950, for which plaintiff prays judgment and his costs."

The answer of the defendants is as follows (formal parts omitted): "Come now the defendants, Jerome H. Sheip and Asa W. Vandegrift, and for their amended answer and defense to the petition herein, filed by leave of court, aver that they, as copartners under the firm name of Sheip & Vandegrift, made and entered into an agreement in writing with the plaintiff, W. W. Norman, signed by both parties, dated April 21, 1903, wherein and whereby plaintiff undertook to manufacture, sell, and deliver on cars to these defendants certain kinds, dimensions, and quantities of cigar box lumber, at prices named, during a term of five years next after the date of said contract; and they admit that said contract was in force and was being executed by both parties on November 15, 1906, the date of the fire as stated in the petition. These defendants aver that, by paragraph 6 of said written agreement, the plaintiff undertook and agreed to furnish these defendants, and their employés, without expense to them, suitable rooms and buildings, together with light, heat, and power, to manufacture and run veneering, polishing, and such other machinery as was necessary and incidental to convert the lumber manufactured by the plaintiff into...