86 P. 461 | Kan. | 1906
Lead Opinion
The opinion of the court was delivered by
P. A. Johnston suffered severe loss from a fire which apparently originated upon or near the premises of John Marriage and spread over a large tract of country. He sued Marriage to recover compensation, alleging that his injury was occasioned by Marriage’s having “negligently and carelessly .set fire to the dry grass of the prairie” while engaged in charring posts. A jury trial was had, which resulted in a verdict and judgment for the defendant. The plaintiff prosecutes error.
The court took the view that a recovery might be-had upon either of two theories, upon each of which he gave full instructions: (1) That the defendant in person or by his employees intentionally set fire directly to the prairie; and (2) that the fire was occasioned by the negligence of the defendant, whether or not it was set to the prairie directly or otherwise. The plaintiff complains of the giving of any instruction whatever relating to a direct and intentional setting fire to the prairie, claiming that no such issue was tendered by the pleadings or involved in the case. It is true that the petition, as appears from the statement already made, was so drawn as to suggest a reliance upon proof of an unintentional but careless starting of the fire. But the allegations were broad enough to support a
“If any person shall set on fire any woods, marshes or prairies so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by civil action.” (Gen. Stat. 1901, § 8010.)
To recover under this statute, disregarding the element of negligence, it-is necessary to show a direct and intentional setting of fire to woods, marsh or prairie. “Of course, this ‘setting on fire’ must be the direct, intentional act of the defendant.” (Hunt v. Haines, 25 Kan. 210, 213.) If the act is merely a negligent one, there is no occasion for its application. In such case the common law affords ample remedy. (Emerson v. Gardiner, 8 Kan. 452.) If the act is purely accidental no recovery can be had upon any ground. (M. K. & T. Rly. Co. v. Davidson, 14 Kan. 349.)
If the plaintiff had seen fit at the trial to rely wholly upon a claim of negligent conduct by the defendant he would doubtless have been entitled to insist that his petition should be construed accordingly. But in the opening statement to the jury made on his part the case was described as founded upon the' statute, and instructions were asked in his behalf to the effect that a recovery could be had apart from the question of negligence. By invoking the statute and by claiming a right to recover in the absence of negligence plaintiff invited instructions based fipon the theory of a direct and intentional setting fire to the prairie, for' that is the only character of act to which the statute applies, where negligence is not relied upon, and he cannot now contend that no such issue was involved.
Criticisms are made of specific instructions as not correctly stating the law of negligence. The instructions so complained of, however, had relation to the
Complaint is made that the court in one instruction, in defining reasonable care in the handling of fire, omitted to refer to the circumstances under which it was claimed that the fire was started. This feature might well have been incorporated in the instruction, but it cannot be said that its omission was material' error, especially as the record does not show that it contains all the instructions that were given. This consideration also makes it unnecessary 4o examine an assignment of error with regard to instructions which were asked by the plaintiff and refused by the court.
Error is assigned with regard to the rejection of documents offered by the plaintiff to show his right or title to a part of the lands over which the fire extended. If there was any error in these rulings it was not material, since the evidence only went to the extent of the plaintiff’s damage and he failed of any recovery whatever. There was no substantial denial that he had suffered great loss by the fire. Complaint is also made of the exclusion of the testimony of a witness offered in rebuttal, and of a comment made by the court upon an answer given by another witness. No substantial prejudice appears to have resulted to the plaintiff, however, from either incident.
The only remaining specification of error requiring discussion relates to an attempt made by the plaintiff to impeach one T. M. Ellsworth, a witness called by the defendant, by showing that he had made a statement out of court inconsistent with his testimony. This witness was originally called by the plaintiff. He was an employee of the defendant, both when the fire occurred
Rehearing
OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
In the opinion heretofore written in this case it was stated that the record did not show that it contained all the instructions that were given, and two assignments of error were, disposed of wholiy or in part upon this ground. In a motion for a rehearing the plaintiff in error contends that although an express recital to that effect is wanting a fair inference can be drawn from the record that it does contain all the instructions, and this contention proves to be correct. The assignments involved have therefore been reexamined in the light of this fact. -
The other arguments presented in the motion, especially those with regard to the rejection of certain evidence, have also been carefully considered, and the conclusion is reached that while the questions discussed are not free from doubt no such error is shown as to justify a reversal of the judgment. The motion is accordingly denied.