35 Kan. 727 | Kan. | 1886
The opinion of the court was delivered by
This was an action brought by Thomas G. New against Richard W. Reed, to recover $1,373.50, the alleged value of certain personal property, consisting of horses, buggies, harness, etc., used in carrying on and conducting a livery stable, which property it is alleged the defendant intentionally burned and destroyed by'fire. The answer was a general denial. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant for $1,250, and the court
The right of the plaintiff to recover depends solely upon the question whether it was the defendant, or some one else, who set the fire to the livery stable which consumed it and the plaintiff’s property; and the only proof that tended to show that it was the defendant who started the fire, was purely circumstantial evidence. There was no direct testimony introduced on the trial tending to show that the defendant started the fire, while his own testimony was that he did not. It appeared at the trial that foi; some time pi'ior to the burning_ of the livery stable, and up to within five days of that time, the defendant carried on and operated the livery stable himself; that he then owned the entire stock and materials necessary for that purpose, and that he also owned two sheds attached to the livery stable, but that he did not own the stable itself, but only had a lease thereof. It also appeared that prior to the fire, the defendant’s lease expired, and that the plaintiff leased the stable from the owners thereof, and had taken possession of it. The defendant, however, owned the following property, which still remained in the stable: Six horses, four double sets and four single sets of harness, four saddles, and some other articles; and he also owned the two sheds above mentioned. All this property was consumed by the fire, except three of the horses. The plaintiff also had a large amount of property in the stable, all of which was consumed by the fire, except one horse. The plaintiff’s property destroyed by the fire was found by the jury to be worth $1,250. The value of the defendant’s property destroyed by the fire was about $650. The plaintiff prosecuted this action upon the theory that the defendant set. the fire to the stable for the following reasons: For revenge against the owners of the stable for renting it to the plaintiff, and for revenge against the plaintiff because he procured a lease thereof and deprived the defendant of the use of the same; and the plaintiff also introduced evidence for the purpose of showing that the de
There does not appear to have been any claim in the case that the original insurance was excessive; nor does it appear that in fact it was excessive. The defendant’s property in the barn'was in all probability at the time the insurance was effected worth vastly more than the amount of the-insurance; and while he had removed a large portion of the property from the barn before the fire, yet it appeared from the evidence that he had removed it for a sufficient reason. In fact, all of it should have been removed before that time, as the defendant no longer had any right to the premises. It will also be noticed that the question whether the defendant had an insurance on his property, or not, arises only incidentally in the case, and not directly. The suit is not án action on the insurance policy.
It was necessary on the trial for the plaintiff- to prove the value of the property for. which he sued and which was destroyed by fire, and in doing so he introduced the testimony of himself and several other witnesses; and it is claimed that the court belo.w erred in permitting these witnesses tp testify
It is further claimed that the court below erred in charging the jury.- Now we think the- instructions of the court were very fair as toward the defendant; and the defendant did not
The judgment of the court below will be affirmed.