Steffens v. Fisher

• Decision Date: 05 February 1912
• Parties: HENRY C. STEFFENS, Respondent, v. HENRY C. FISHER, Appellant
• Court: Missouri Court of Appeals

143 S.W. 1101

161 Mo.App. 386

HENRY C. STEFFENS, Respondent, v. HENRY C. FISHER, Appellant

Court of Appeals of Missouri, Springfield

February 5, 1912

Motion for Rehearing Overruled February 26, 1912.

Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Dooley & Hiett and W. E. Barton for appellant.

(1) The evidence was not sufficient to carry the question to the jury of whether the fire originated at defendant's brush pile. Kenny v. Railroad, 70 Mo. 248; Sheldon v Railroad, 29 Barb. 228; Peck v. Railroad, 31 Mo.App. 123; Peffer v. Railroad, 98 Mo.App. 291; Manning v. Railroad, 137 Mo.App. 631. (2) Evidence that the fire in question merely might have originated from defendant's engine or even proof tending to show that it did, is not entitled to much weight, unless the possibility of origin from other sources is excluded. Smith v Railroad, 37 Mo. 295; Warner v. Railroad, 178 Mo. 134; Root v. Railroad, 195 Mo. 367; Gibbs v Railroad, 104 Mo.App. 276; Wright v. Railroad, 107 Mo.App. 209; Fields v. Railroad, 113 Mo.App. 642; Lead Co. v. Railroad, 123 Mo.App. 394; Tapley v. Railroad, 129 Mo.App. 88; Swift & Co. v. Railroad, 149 Mo.App. 526; Erhart v. Railroad, 136 Mo.App. 617; Foster v. Railroad, 143 Mo.App. 547; Levi v. Railroad, 138 S.W. 699. (3) Defendant had a right to set fire to his brush piles. Finley v. Langston, 12 Mo. 120. And there is no complaint about the purpose, time or manner of setting. The petition bases the action solely upon the negligent management and specifically "failing to watch said fire." 123 Am. St. Rep. 576; Cooley on Torts (2 Ed.), 700; 13 Am. and Eng. Ency. of Law, 464. (4) Negligence is the whole ground and very gist of the action and must be proved as laid. Smith v. Railroad, 37 Mo. 292; Martin's Exrs. v. Miller, 20 Mo. 391. And the evidence was not sufficient to go to the jury on that issue. Case v. Hobart, 25 Wis. 654; Calins v. Barger, 44 Barb. 462; Miller v. Martin, 16 Mo. 508. (5) The negligence, if any, was not the proximate cause of the injury. Clemens v. Railroad, 53 Mo. 366; Warner v. Railroad, 178 Mo. 134; Russell v. Reagan, 34 Mo.App. 242; Reed v. Railroad, 50 Mo.App. 504; Louisville Co. v. Nitsche, 9 L.R.A. 750; Jackson Co. v. Penn. Co., 17 L.R.A. 55; 3 Parsons on Contracts (7 Ed.), 180; Bowers v. Railroad, 12 L.R.A. (N.S.) 466. (6) The wind which arose twenty-four hours after the brush pile had been burned down was an intervening cause. Read v. Nichols, 7 L.R.A. 130; Marvin v. Railroad, 11 L.R.A. 506. The rise of the wind could not have been anticipated by any reasonable man. Miller v. Martin, 16 Mo. 508; 21 Am. and Eng. Ency. Law, 586. (7) Two rules for measuring damages are laid down in the books: (a) the difference between the value of the land just before and just after the fire. Atkinson v. Railroad, 63 Mo. 367; Flannery v. Railroad, 44 Mo.App. 396; Muldrow v. Railroad, 62 Mo.App. 431; Diggs v. Railroad, 131 Mo.App. 457; Doty v. Railroad, 136 Mo.App. 254; Miller v. Neal, 129 Am. St. 1077; (b) the value of the property destroyed considered separate and apart from the real estate. Plaintiff had a right to choose which of these he would take, but could not select strong points of both. 13 Am. and Eng. Ency. Law, 540; Shannon v. Railroad, 54 Mo.App. 223.

Lamar, Lamar & Lamar for respondent.

(1) As to the first assignment of error by appellant that the court erred in admitting evidence to prove certain matters, it is sufficient answer to say that an examination of the abstract will show that the appellant did not, in the trial court, give or assign, a single reason for a single objection made to any of the testimony offered. A general objection does not suffice. The reason why must be given by counsel. Hutchinson v. Morris, 131 Mo.App. 262; Kinlen v. Railway, 216 Mo. 174; Schoen v. Brewing Co., 126 Mo.App. 268; State v. Meagher, 124 Mo.App. 337; State v. Crone, 209 Mo. 330; Smith v. Railroad, 127 Mo.App. 165. (2) The court did not err in overruling the defendant's demurrer to the evidence, and in submitting the case to the jury. If there is any substantial evidence to sustain plaintiff's claim, it should be submitted to the jury and plaintiff's case may be made by circumstantial evidence. Torpey v. Railroad, 64 Mo.App. 382; Swift v. Railroad, 149 Mo.App. 526; Waddell v. Railroad, 146 Mo.App. 608; Fields v. Railroad, 113 Mo.App. 642; Lead Co. v. Railroad, 123 Mo.App. 402; Tapley v. Railroad, 129 Mo.App. 88; Erhart v. Railroad, 136 Mo.App. 617; Foster v. Railroad, 143 Mo.App. 552; Root v. Railroad, 195 Mo. 349; Wright v. Railroad, 107 Mo.App. 209. (3) While the cases arising from this particular class of fires are not numerous, the law is well settled and the rights of a landowner fully defined and settled. Brummitt v. Furness, 50 Am. St. Rep. 215; Miller v. Neale, 119 N.W. 94, 129 Am. St. 1077; Norman v. Shelp, 144 Mo.App. 138; Hays v. Brandt, 98 S.W. 368; Ward v. Powell, 127 S.W. 851; Mahaffey v. Lumber Co., 56 S.E. 893; King v. Norcross, 82 N.E. 17; Ulrich v. Stephens, 93 P. 206. (4) It was a question for the jury whether or not the defendant exercised reasonable care under the circumstances. Vaughn v. Brewing Co., 132 S.W. 296; Munro v. Railroad, 135 S.W. 1016; Tuck v. Traction Co., 140 Mo.App. 341; Shortridge v. Estate, 145 Mo.App. 302; Miller v. Peck, 104 Mo.App. 609.

OPINION

GRAY, J.

This suit was commenced before a justice of the peace in Texas county, to recover damages resulting to respondent's fence by reason of a fire alleged to have escaped from appellant's premises. There was a judgment for plaintiff in the justice court, and on trial anew before a jury at the June term, 1911, of the circuit court of said county, he was again successful and recovered a judgment of $ 44.40, and defendant appealed.

The first assignment of error is, that the court erred in admitting certain evidence offered by plaintiff tending to prove the proper steps to be taken to prevent fire from escaping. The record discloses that no objections were made to the competency of this testimony, but that each objection was in the following form: "The defendant objected to this question." The objections were insufficient. [State v. Crone, 209 Mo. 316, 108 S.W. 555; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343.]

The second assignment of error is, that the court should have sustained plaintiff's demurrer to the evidence. This assignment is based on the ground that the evidence was insufficient to show that the fire spread from the brush piles burned by defendant, or if it did that, defendant failed to use ordinary care in controlling it and preventing the spreading thereof to plaintiff's premises. The plaintiff and defendant were adjoining landowners. Defendant owned eighty acres of land, consisting of a tract a quarter of a mile wide east and west, and a half mile long north and south. Plaintiff owned eighty acres running east and west, and his west forty was directly north of defendant's north forty. There was a public road along the south line of defendant's land, and also one seven or eight feet wide running along the east side of his south forty and then on an angle to the northwest through the west forty to a point some distance west of defendant's tract, and then extending to the southwest until it intersected the county road running east and west along the south side of defendant's premises.

On the first day of February, the defendant, with some hired men, was engaged in clearing a part of his land, and set fire to a brush pile, and it is claimed by plaintiff that the fire escaped from this brush pile and burned north and across the road, and spread to his premises and burned four thousand four hundred and forty rails, then in a fence.

The plaintiff offered testimony in substance, as follows: In his own behalf he testified that the fire occurred on the second day of February, and at that time there was a strong wind blowing from the southwest, and there had been no rain since the preceding July, and the ground was extremely dry; that the land was timber and brush land, and had not been burned over for several years, and was covered with leaves; that he first saw the fire about noon, and that he went down to the public road and the fire was then crossing the road and was burning on the north side and toward the northeast; that he observed that it was then burning on the south side of the road, and that it had come from that side; that the next day he found fire in a brush pile on defendant's land, where it had been burning; that grass and weeds had grown on either side of the public road until there was only a strip seven or eight feet wide occupied by the road that was free of grass.

George McKinney testified that on the day preceding the fire he was working for defendant on his premises; that during the day they had burned two brush piles, and that on the evening when they quit work, there was fire in one of them.

Joe Foster testified that the fire crossed the road and was burning to the northwest. John Gross testified that he saw the fire in the forenoon at about 11:30, and that it was on defendant's premises south of the road, but burning in a northeasterly direction towards plaintiff's premises. John Willhite testified that about dark of the evening preceding the fire, he passed along the road, and that he saw the fire burning on defendant's premises; that he noticed the brush piles and saw that fire had been under them, and that it seemed to be coming from where they had been clearing the land.

The plaintiff offered further testimony tending to prove that after the fire there were coals in the brush pile, and that by back-firing along the road defendant would have prevented the fire from spreading to his premises. There was no evidence of...