Johnston v. Marriage

Citations

• 74 Kan. 208
• 86 P. 461
• 1906 Kan. LEXIS 36

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Setting out Fire — Statutory Remedy — Proof. Disregarding the element of negligence, no recovery can be had under the statute providing that “if any person shall set on fire any woods, marshes or prairies so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by civil action” (Gen; Stat. 1901, §8010), except upon proof that a fire has been directly and intentionally set to woods, marsh or prairie.</p> <p>2. -r — • Petition — Opening Statement — Instructions. Where a petition states a cause of action independent of such statute for damage occasioned by the negligent setting out of a fire, and instructions are given covering that aspect of the case, but the allegations of the petition are broad enough to support a recovery under the statute, independent of negligence, and the plaintiff in his opening statement and in his request for instructions describes the action as based upon the statute and asks that the. jury be' instructed that a recovery may be had irrespective of negligence, he cannot complain because the court also instructs that a recovery would be justified if the jury should find there had been a direct and intentional setting fire to the prairie, ■ regardless of .any question of negligence.</p> <p>3. Evidence — Impeaching a Witness. The rule that a litigant ordinarily is not permitted to introduce evidence for the purpose of impeaching his own witness forbids his attempt to impeach a witness whom he himself first uses, notwithstanding the same witness is afterward called upon to testify on behalf of the adverse party.</p>