Harris v. Savage

79 P. 113, 70 Kan. 561, 1905 Kan. LEXIS 9

• Court: Supreme Court of Kansas
• Decided: January 7, 1905
• Docket: No. 13,866
• Status: Published

Opinion

The opinion of the court was delivered by

Clark A. Smith, J.:

This action was commenced by the defendant in error against the plaintiff in error before a justice of the peace, on a bill of particulars, in which he alleged, in substance, that he was the owner of two large ricks of unthrashed wheat standing on a described quarter-section of land, and of the value of $215 ; that on the 16th day of August, 1901, the defendant negligently and carelessly set fire to some wheat stubble on the ground on which the ricks were standing and caused them to be burned and consumed, to the damage of plaintiff in the sum of $215, for which amount he prayed judgment. No pleading was filed on behalf of defendant. The case was tried to a jury and judgment was rendered for defendant. An appeal was taken to the district court of Sumner county, and a trial therein resulted in a judgment in favor of the plaintiff. The defendant brings the case to this court for review.

Our attention is not called to any alleged error in the introduction of evidence on the trial and no exception was saved to-the giving of, or refusal to give, any instruction. Hence it is necessary only to ascertain where there was error in denying the motion for a new trial.

In the absence of any showing of the facts upon which some of the grounds of the motion were based, and in the absence of any exception to any ruling of the court made in the progress of the trial, only one error alleged in the motion is, or could be, insisted on — that the verdict of the jury was not sustained by sufficient evidence. This ground is not well taken. There was evidence that the ricks of wheat stood in a field covered with high wheat stubble; that the only precaution the defendant took to keep the fire from them was to plow once around each stack with a gang-plow, which consists of two plows operated together on a frame supported by wheels; that by reason of the hardness of the soil and the fact that the plows were gauged to run in the ground a proper depth when one wheel was down in a furrow, and that in passing around the ricks the wheel was not in a furrow, the plows at times only scratched the surface and hardly separated the dense stubble. If the jury believed this evidence they were justified in finding that it was negligence per se to set fire to the stubble in proximity to the stacks.

Again, it is contended that the evidence did not show that plaintiff owned the ricks of wheat burned, nor identify them with the ricks which were described in the bill of particulars as standing on a particular quarter-section of land. The plaintiff testified that it was his wheat; that he had raised it himself on his own land, and had it cut with a header and stacked in the two ricks ; that he had rented the land on which the wheat grew to the defendant for another season. The defendant also testified about renting the land of the plaintiff and plowing the same ; and about the burning of the*ricks of wheat. There was no mistake or misunderstanding possible as to the identity of the wheat burned with the whe'at described in the bill of particulars. The particular numbers or description of the land upon which it stood were immaterial.

There was no material variance between the allegations of the bill of particulars, even regarded as a petition, and the evidence, and there was no lack of evidence upon any essential fact. The verdict was sustained by the evidence, and the motion for a new trial was properly denied.

The judgment of the court below is affirmed.

All the Justices concurring.