Emerson v. Gardiner , 8 Kan. 452 ( 1871 )

The opinion of the court was delivered by

Kingman, O. J.:

In this case the petition is as follows: “ Said plaintiff Charles C. Gardiner complains of said defendant, and says that on the 31st of October, 1867, said 'defendant did carelessly and negligently, and without the fault of said plaintiff, burn up and destroy and damage the following property of said plaintiff: 30 tons of hay, of value $4 per ton, $120; 320 rods post-and-rail fencing, of value $1 per rod, $320; 20 acres growing timber, damage $10 per acre, $200 — total, $640. Wherefore plaintiff prays judgment for the sum of $300 against defendant.” To this petition defendant answered with a general denial.

By the common law there was no redress unless the person who set the fire did so for the purpose of injuring the property of another, or was guilty of negligence in setting the fire, or in not preventing it from spreading beyond his own land. Willfulness or negligence were essential elements in the act, and without one or the other there could be no recovery. To remedy this inconvenience was the object of section 2 of chap. 102 Comp. Laws, which is as follows:

“ Sec. 2. If any person shall set on fire any woods, marshes or prairies, so as thereby to occasion any damage to any other person, such person shall make satisfaction for such damage to the party injured, to be recovered in an action.”

This section is purely remedial. It does not abrogate the rule of the common law, but in a certain class of cases therein mentioned substitutes another test of liability in which neither willfulness nor negligence form a necessary element. A party aggrieved may seek his remedy either under the statute or under the common-law rule, and probably both at the same time in the same action. If fire is set to woods, marshes, or prairies, then there can be a recovery under the statute, and the test of liability will be, did the defendant set the fire. If fire is set to anything else, then there is added the question of willfulness or negligence.

The pleader in this case evidently drew the petition with reference to the common-law, though the third and last item in his petition may and probably does properly constitute a charge under the statute. But the first two are not in anywise acts under the statute. The injuries alleged are not to “woods, marshes, or jrrairies.” Nor is the injury alleged to be the result of fires set to woods, marshes, or prairies. The instructions of the court below are given upon the theory that the petition is wholly drawn under section two above quoted, and therein are fatally erroneous. The instructions are not a correct guide to the jury to decide the issues they were to try; for they totally exclude the elements of negligence or willfulness from the consideration of the jury, not only as to the third item in the petition but as to the other two. This general error pervading the instructions it is not necessary to examine them in detail. The judgment is reversed and a new trial awarded.

All the Justices concurring.