143 Mo. App. 547 | Mo. Ct. App. | 1910
This case originated in the circuit court of Bates county and went to Barton county on change of venue. The petition charges that plaintiff was the owner of a two-story frame building, fixtures, cigars, etc., located near the track of defendant in the city of Butler, and that on the night of May 26, 1907, fire was communicated to the building by a locomotive engine used by defendant upon its said railroad, and that the building and property therein were destroyed, and asks judgment for $7133.20. Trial was had by jury, verdict, for plaintiff for $4575, and defendant has appealed.
The evidence in this case tends to show in substance that the building was a two-story building, lo-. cated about twenty-eight feet from the track of defendant; that the fire when first discovered was in the roof of the building on the side next to the track, and that there had been no fire in the building for several hours previous to the discovery of the fire; that prior to this time engines passing had emitted sparks and cinders which had fallen on the porch of this building, and, at one time had set fire to leaves near the back porch of the building which was the side farthest away from the railroad track; that on the night of the fire the wind was blowing from the southwest which would carry sparks from a passing train in the direction of the building; that two trains came into Butler on the night of the fire and stopped, but how near the engines were to this building when they stopped does not appear. One witness testified that one of these trains was a freight train and that the engine was laboring, and emitted sparks as it pulled in. The time that elapsed from the time sparks Avere seen to be emitted from the
As to the motion to refer this case to a referee it is sufficient to say that the statute authorizing the court to refer cases has no application to an action, ex delicto, even though in that case there may be a great number of items to be considered by the jury. Cases of this .kind are not construed to be the examination of a long account as contemplated by the statute. [Ittner et al. v. St. Louis Exposition and Music Hall Ass’n, 97 Mo. 561; 11 S. W. 58; Willard v. Doran & Wright Co., 1 N. Y. Sup. 345; Untemeyer v. Bernhauer, 11 N. E. 847.]
Defendant contends that the court erred in striking out that part of the answer which alleged as a defense that plaintiff had been paid more than her property was worth by the insurance companies.
An insurance company which has paid a fire loss occasioned by the tort of another may be subrogated to the rights’ of the insured, and may maintain an action in its own name against the tortfeasor for reimbursement. [Insurance Co. v. Railroad, 149 Mo. 165; 50 S. W. 281; Insurance Co. v. Railroad, 74 Mo. App. 107; Insurance Co. v. Railroad, 123 Mo. App. 513, 100 S. W. 569.]
But the right of the insurance company is not one that the wrongdoer can assert to defend an action against him by the property-owner. With the equities existing between the insurance company and the owner of the property he has no concern. His primary liability is to the owner whose property he has destroyed, and unless the insurance company appears and asserts its rights the tortfeasor cannot assert them for it. [Dillon v. Hunt, 105 Mo. 154, 16 S. W. 516; Mathews v. The Railroad, 121 Mo. 298, 24 S. W. 591; Mathews v. Mo. Pacific Ry. Co., 142 Mo. 645, 44 S. W. 802.]
When the plaintiff relies upon circumstantial evidence as is done in this case its sufficiency must be determined upon the rules of law applicable to circumstantial evidence; and, in a general way, these rules require that the circumstances relied upon must be consistent, and must tend in a substantial way to support the claim of plaintiff. In determining whether or not the circumstances proven in a given case do tend in a substantial way to support the claim of plaintiff, the real test to be applied is whether or not the circumstances proven make it probable and justify a reasonable inference that the fire was caused by defendant. If this is true, and it is also true that the circumstances proven make it appear to be improbable that the fire could have originated from any other source, then the plaintiff’s case is sufficiently made. Viewing this evidence in the light of this rule we find here the fire occurring in the night — possibly at one or one-thirty a. m.— in a building in which there had been no fire the previous day except in a cook stove, and which was out at eight o’clock in the evening, so that at the time of this fire it is clear that there was no fire in the building, nor is there any evidence to show that there was fire in any other building from which it would be possible for sparks to escape and cause this fire. The fire is first discovered on the roof which shows that it must have come from some place outside of the building. It originated on the side of the roof next to the railroad track The building stands within twenty-eight feet of the track, and the evidence shows sparks and cinders to have been emitted and sent a greater distance than they would have to travel from an engine on defendant’s track to this building. An engine comes into town emitting sparks — the train remains at the station until after this building is fired, and the men in charge of the
Our conclusion is that the evidence was sufficient to send the case to the jury, and the judgment will be affirmed.