Cauble v. Hudson , 26 Ind. App. 622 ( 1901 )

Robinson, J.

Appellant owned a barn and certain personal property therein, all uninsured, which were burned on the night of December 24, 1898. Appellee’s decedent, Benjamin Clifton, at that time was about fifty years old and had been non compos all his life. He lived with his mother on a farm1 near Campbellsburg until her death in 1897 after which he lived with the neighbors, sometimes sleeping in barns. He was high tempered and was frequently teased by the boys of the town which he frequently visited and where he was well known. He was an habitual smoker and always carried clay pipes, tobacco, and friction matches which he handled with reasonable care and caution. He also carried a “clevis” pin, fastened to his wrist by a cord, which he called his “sling shot”, and also an iron link which he called his “knucks.” He never injured anyone, but talked a great deal about fighting. At the June term of the court, 1898, he was adjudged of unsound mind, but. no guardian was ever appointed for him. On December 24, 1898, he visited a number of stores and shops in Campbellsburg, and was smoking a great deal. He became intoxicated, was teased by the boys, exhibited the weapons above named, and about 10 o’clock that evening was seen leaving the town staggering, and going east. He was afoot, alone, and this was the last time he was seen alive. Between 12 and 1 o’clock that night the barn and contents situated about a mile east of Campbellsburg burned, and on the next day the headless body of Clifton was found in the ruins burned to a crisp, the iron “link” and “pin”, clay pipes, pocket knife, and some brass buttons were found near by. On that night there was no electric storm, no rain, and some wind blowing. Clifton had no enemies, had no money or other valuables on the day of his death, and was never known to carry anything of the kind with him.

Upon the above facts appellant can not successfully prosecute a claim against Clifton’s estate for damages for the burning of the property by him. His going to the barn in the first place can be established only by an inference. And if he did' go> it is only through an inference that it can be said he burned the property. A fact may be proved by circumstantial evidence, but the circumstances themselves must be proved and not presumed. It is not found he burned the barn, nor is it found as a fact that he went to the barn. The fact that his headless body was found in the ruins is a basis for conjecture merely. The trial court was right in denying a judgment resting on inferences based on inferences.

Judgment affirmed.