Opinion · Molaw Missouri
WILLARD v. BETHUREM, 234 S.W.2d 18 (Mo.App.Spr. 1950)
234 S.W.2d 18
- Type
- Opinion
- Court
- Molaw Missouri
- Jurisdiction
- Molaw
- Date
- 1950-11-15
- Topic
- general
WILLARD v. BETHUREM, 234 S.W.2d 18 (Mo.App.Spr. 1950) WILLARD ET AL. v. BETHUREM. No. 6903.Springfield Court of Appeals,Missouri. November 15, 1950.
Citator
UpLaw has not yet analyzed WILLARD v. BETHUREM, 234 S.W.2d 18 (Mo.App.Spr. 1950). The absence of a flag is not a finding that it is good law.
WILLARD v. BETHUREM,234 S.W.2d 18(Mo.App.Spr. 1950)
WILLARD ET AL. v. BETHUREM.
No. 6903.
Springfield Court of Appeals,
Missouri.
November 15, 1950.
Donnelly Donnelly, David Donnelly, Lebanon, for respondent.
[2] Plaintiffs assign as error the giving of instructions 6, 9 and 13 at the request of the defendant.
[3] The amended petition, upon which the case was tried, states that on the 13th day of December, 1948, plaintiffs were owners and in possession of 180 acres of land (which was particularly described) in Laclede County, Missouri. That on that date, defendant, who owned adjoining land, carelessly and negligently (a) started a fire thereon and (b) thereafter "carelessly and negligently caused and allowed said fire which he had started on his own premises to escape to the lands of plaintiffs;" that as a result of defendant's "careless and negligent acts in starting said fire or allowing said fire to escape to plaintiff's lands, plaintiffs were damaged" in the sum of $1890, for which they pray judgment.
[4] Defendant answered and denied all the allegations in each paragraph of plaintiffs' petition.
[5] The record is voluminous but a statement of the facts relevant to the issues raised need not be so. They are briefly, plaintiffs and defendant owned adjoining tracts of land which were to some extent wild and unimproved and covered with sage grass, which the evidence shows was practically worthless as forage for domestic animals. Their respective tracts of land were separated by a wire fence. On the day in question, defendant and his employee went to a field on defendant's property which adjoined the lands of plaintiffs, for the purpose of plowing up the sage grass. TheyPage 20were using a farming implement known as a Graham Homme plow or "chisel", that did not turn the grass under the soil and which became clogged with the high sage grass as they progressed with the plowing. It cultivated a 7-foot swath and they had circled the field twice, making a 14 foot strip over which they had again run the farming implement. This method of cultivation was not entirely satisfactory and defendant set fire to the sage grass on the uncultivated portion of his field to burn it off so he could more readily prepare the land for seeding. The overwhelming evidence shows the weather was extremely dry. The evidence is somewhat conflicting as to whether a breeze was blowing at the time the fire was set, but concededly a breeze was blowing toward plaintiffs' land shortly thereafter. The fire spread across the cultivated strip of land, through the fence and across a ditch onto plaintiffs' land and burned approximately 106 acres of his pasture much of which was in sage grass, timothy, clover and lespedeza. An effort was made by defendant, his employee, and others to control the fire while it was burning on defendant's land and keep it from spreading to plaintiffs' premises, but (so plaintiffs contended) proper back-firing or back furrowing was not resorted to. Plaintiffs also contended that defendant was negligent in setting out the fire and after it was set was negligent in permitting it to escape to their premises. Defendant contended there was no negligence in either instance.
[6] Plaintiffs' first instruction authorized a verdict for plaintiffs if the jury found that the defendant "after starting said fire carelessly and negligently failed to take proper precautions to control said fire and confine it to said lands * * *", and the damage resulted "and this is true even though you may also find that the defendant was not negligent in starting said fire on his land." Plaintiffs' second instruction was based upon the negligence of defendant in setting the fire on his land and instructed the jury that "if you further find that the defendant on his land and under the conditions then existing carelessly and negligently caused or permitted a grass fire to be started which spread to the lands of plaintiffs and resulted in the damage, * * *" their verdict should be for plaintiffs.
[7] It will be seen from these two instructions that plaintiffs, in accord with their allegations, presented two theories of negligence, one in permitting the fire to spread onto plaintiffs' premises and the other in setting it out under the existing circumstances.
[8] Defendant requested and the court gave instruction No. 9, which follows: "The court instructs the jury that under the law and the evidence in this case the defendant had the right in the exercise of care and prudence, as defined in other instructions, to put fire out on his own premises to burn off the weeds and sage grass on his land in preparation for cultivation, and if the jury believe and find from the evidence that the defendant set fire for this purpose on his cultivating land adjacent to plaintiffs' land without any intent on his part of setting fire to plaintiffs' said land, then the burden of proof is on the plaintiff and he must show by a preponderance of the evidence that said fire and damage to the plaintiffs' property resulted from the lack of ordinary care and caution, in time, place and manner of setting out said fire upon the part of defendant, under all the circumstances, and the mere fact that plaintiffs' property was damaged does not of itself prove negligence."
[9] To this instruction, appellants strenuously object and argue that it directs the jury to return a verdict for defendant unless plaintiffs have shown by a preponderance of the evidence that the damage to plaintiffs' property "resulted from lack of ordinary care and caution, in time, place and manner of setting out said fire," and completely ignores the negligence alleged in the petition and submitted in plaintiffs' instruction No. 1 relative to defendant's negligence in permitting the fire to spread upon plaintiffs' premises, and also that it further injects the element of intent on defendant's part, which is foreign to the issues of negligence.
[10] We believe plaintiffs' objections are well taken. Two theories of negligence were presented in the petition. Two differentPage 21theories of liability were presented in plaintiffs' instructions 1 and 2. These two theories were recognized in defendant's instruction No. 6, which required "plaintiffs to prove by a preponderance of the evidence that such fire was negligently kindled or carelessly managed." In defendant's instruction No. 7, the jury was informed that though they might find the defendant set out fire on his own land to prepare it for cultivation that if they believed that he used "due diligence in setting out fire on his land, and further used ordinary care to keep said fires from spreading to the lands of others, and that such fire escaped by accident without the fault or negligence of defendant * * *," he would not be liable.
[11] Defendant's instruction No. 8 told the jury that if the defendant used due diligence in setting fire to the grass on his land and that notwithstanding that fact, the fire escaped to the land of plaintiffs without any negligence on the part of defendant, plaintiffs were not entitled to recover. From the foregoing, it will be seen that plaintiffs' instructions 1 and 2 and defendant's instructions 6, 7 and 8 were all based upon the theory of negligence in setting out the fire or in negligently permitting it to go upon the land of plaintiffs.
[12] Now instruction No. 9 told the jury that the defendant had the right in the exercise of care and prudence "to put fire out on his own premises" and if the jury found that he set the fire out "without any intent" of setting fire to plaintiffs' land, then the burden of proof is on the plaintiffs, who must show by a preponderance of the evidence "that said fire and damage to plaintiffs' property resulted from the lack of ordinary care and caution in time, place and manner of setting out said fire upon the part of defendant, under all the circumstances, * * *," and that the mere fact that plaintiffs' pasture was destroyed did not of itself prove negligence. This instruction completely ignores plaintiffs' theory of defendant's negligence in permitting the fire, after it had been carefully set out, if so, to spread to plaintiffs' premises, and permits them to consider only the lack of ordinary care "in time, place and manner of setting out said fire * * *." We think this instruction is in conflict with defendant's instructions 6, 7 and 8 and with plaintiffs' instruction No. 1. It permits the jury to arrive at a conclusion without considering a material element of plaintiffs' case and to render a verdict for defendant in a manner not permitted by plaintiffs' instruction 1 and defendant's instructions 6, 7 and 8. We have no way of knowing which instruction the jury followed as they are not consistent. We do not lose sight of the fact that an instruction almost identical with this one was given in the case of Catron v. Nichols, 81 Mo. 80. That case involved facts similar to the present one. The petition alleged that the defendant "willfully, negligently and carelessly, set out said fire." No negligence was urged in permitting the fire to spread. In that case the appellant was contending that the instruction was erroneous and that all he need show was that his property was consumed by a fire set out by defendant and that the burden was then cast upon defendant to show that his act in setting the fire was prudent and not negligent. The court held against this contention and said that the burden was on plaintiff to show negligence and that the burning of plaintiff's property would not, of itself, be sufficient evidence of such negligence. The Supreme Court ruled that as to that contention, the instruction correctly declared the law.
[13] The following authorities justify our conclusion that instruction No. 9 is erroneous. Biehle v. Frazier, Mo.Sup.,232 S.W.2d 465, Pullam v. Vaughn, Mo.App., 218 S.W. 889; Ruth v. Chicago Rock Island Pac. Ry. Co., 70 Mo.App. 190. Wilson v. Chattin, 335 Mo. 375,72 S.W.2d 1001; In re Proceedings to Open Sixth Street, 276 Mo. 158, 207 S.W. 503; Mansur-Tebletts Implement Co. v. Ritchie, 143 Mo. 587, 45 S.W. 634; 53 Am.Jur., Trial, Sec. 557.
[14] We are cognizant of the rule that there is no error where the instructions in a case, when read as a whole, are consistent, harmonious and correctly state the law, but this rule does not apply where instructions are so inconsistent as to bePage 22wholly irreconcilable, Burneson v. Zumwalt Co., 349 Mo. 94,159 S.W.2d 605, loc. cit. 610, or where it authorizes a finding while omitting an essential element of plaintiff's case. This instruction virtually told the jury that if defendant did not intend to burn plaintiffs' pasture when he set the fire, and plaintiffs could not prove he was negligent in setting it, the jury must find for defendant though he was negligent in permitting the fire to spread after being set.
[15] Neither do we think this instruction should have included the extraneous and foreign subject of defendant's intent. This is a negligence case. An act done intentionally, willfully or wantonly does not constitute negligence. Indeed, it is the antithesis of negligence. An act that is intentionally done is not a negligent act. State v. Lockwood, 119 Mo. 463, 24 S.W. 1015; Blunk v. Snider, 342 Mo. 26,111 S.W.2d 163; Raming v. Metropolitan Street Ry., 157 Mo. 477, 57 S.W. 268; 38 Am.Jur., Negligence, Secs. 5, 48; 65 C.J.S., Negligence, § 3, page 330; Silliman v. Munger Laundry Co., 329 Mo. 235,44 S.W.2d 159; Hickman v. St. Louis Dairy Co., 232 Mo.App. 117,90 S.W.2d 177, loc. cit. 180.
[16] In Miller v. Martin, 16 Mo. 508, where the facts were very similar to those here, the court said, loc. cit. 511: "For an injury caused by the want of due caution, there is no doubt that a party will be liable to an action, without any regard to the intent with which the injury was done. It may have been entirely unintentional and against his will, and a source of mortification, regret or sorrow; yet, if it is caused by negligence, the party will be liable to an action.
[17] If instruction No. 9 had included both theories of negligence we do not say that the injection of defendant's intent into the instruction would have been of sufficient gravity, alone, to justify a reversal, though it should not have been included.
[18] Defendant-respondent contends that if instruction No. 9 is error, that it is harmless error because plaintiffs did not make a submissible case. With this contention we can not agree. The evidence shows that defendant set the fire, that his land and plaintiffs' adjoining land were well covered with sage grass, that the weather had been extremely dry, that the grass was highly inflammable. Some of the evidence shows that a breeze was blowing from the south or southwest all day but all of the evidence shows that it was blowing shortly after the grass on defendant's place was ignited. Defendant admitted on cross examination that he knew when he set the fire there was a possibility that a breeze might arise. There is no question but what more than 100 acres of plaintiffs' pasture land was burned over. There was an abundance of evidence on behalf of plaintiffs to submit the case to the jury. It is only when the undisputed evidence conclusively shows that the plaintiff was not entitled to recover in any event that an erroneous instruction is held to be harmless. That is not the case here.
[19] Plaintiffs contend that instructions No. 6 and 13 were erroneous because they injected into the case the theory of an inevitable or unavoidable accident and that there was no evidence of such. Defendant's instruction No. 6 told the jury that defendant had the right to set out a fire on his land in order to prepare it for cultivation and that if in doing so, he used ordinary care and prudently managed the same after it was set out, he could not be held for any accidental or unavoidable injury occurring thereby.
[20] Instruction No. 13 is an abstract statement of the law and is as follows: "The court instructs the jury that it is a settled principle of law that if a person be in the prosecution of a lawful act, an action does not lie for an injury resulting from an inevitable or unavoidable accident which results without any blame or default on his part."
[21] It has long been held that an instruction on accident should not be given unless the evidence shows that the cause of the accident was unknown. In Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103,19 S.W.2d 707, 65 A.L.R. 129, the matter of giving an accident instruction was thoroughlyPage 23reviewed. In that case it was said, 19 S.W.2d loc cit. 713: "The word `accident,' in popular acceptation and sometimes in law, may denote an occurrence arising without intent or design, or even from the carelessness of man; but in the law of negligence it signifies an event resulting in damage or injury, proceeding from an unknown cause, or from a known cause without human agency or without human fault. 1 C.J. p. 390 et seq.; 20 R.C.L. p. 17 et seq. The essential requirement is that the happening be one to which human fault does not contribute, Hoffman v. Peerless White Lime Co., 317 Mo. 86, 102,296 S.W. 764. But, when the cause of accident is known, it is better to instruct the jury on the specific issues of fact presented, and so the practice has grown up under our case law of limiting the giving of accident instructions to instances in which there is evidence tending to show the cause is unknown — on the theory that the contrary and more abstract course would confuse the jury. This we understand to be the import of the authorities."
[22] To the same effect is Wilson v. Chattin, 335 Mo. 375,72 S.W.2d 1001and Wright v. Quattrochi, 330 Mo. 173,49 S.W.2d 3; Walker v. Klein, Mo.App., 127 S.W.2d 51; Brewer v. Silverstein, Mo.Sup., 64 S.W.2d 289, loc. cit. 292.
[23] Defendant relies upon the case of Miller v. Martin, 16 Mo. 508 (from which we have heretofore quoted), which was a case very similar to the one here except that after the fire had been set, "the wind rose high" although it had been calm when the fire was set. The trial court refused an instruction offered by the defendant stating that if he had used due diligence in firing his land and notwithstanding, the fire had escaped and burned the fence "without the least fault or neglect on his part" they will find against plaintiff. On behalf of the plaintiff, the court instructed the jury that if the defendant, himself, or by another set out fire which ran to and communicated with and burned the fence of plaintiff, they should find for the plaintiff, otherwise for the defendant. The verdict was for plaintiff and the case was reversed and remanded, apparently upon the theory that the evidence showed no negligence whatsoever, on the part of the defendant and that plaintiff's damages were caused by a high wind, the coming of which could not have been foreseen. The court said: "But to make out a defence under this plea, it must be shown, that the defendant was free from all blame and that the accident resulted entirely from superior agency. * * * The rise of the wind, in the case under consideration, was not a natural or probable consequence of setting fire to the stubble, and could not have been foreseen, though such an accident was possible, and great fires may cause the wind to rise."
[24] We do not think the holding in this case, in view of the later holdings of our Supreme Court would justify the giving of an accident instruction.
[25] From the above authorities, it will be seen that these instructions, under the facts in this case, were erroneous. The damage suffered by the plaintiffs was not the result of an unknown cause and consequently instruction No. 6 should not have been given. In fact, defendant's instruction No. 13 is an abstract statement of the law not coupled with hypothesized facts and for that reason was apt to confuse the jury. Such instructions have been many times criticized.
[26] For the foregoing reasons, the judgment of the trial court should be reversed and the cause remanded. It is so ordered.
[27] BLAIR and McDOWELL, JJ., concur.Page 223