
    JOHN EADS, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    St. Louis Court of Appeals.
    Submitted on Briefs May 7, 1914.
    Opinion Filed June 2, 1914.
    PRINCIPAL AND AGENT: Authority of Agent: Sufficiency of Evidence. The owner of land adjoining the right of way of a railroad, being desirous of getting a building, which was located partly on his land and partly on the right of way, out of the way so that a fence could he constructed along the right of way, wrote to the railroad company that he would set fire to the building whenever the company was ready to build the fence, and an agent of the company replied that he should do so at once, and that the company would take steps to have the fence constructed at an early date. The owner set fire to the building, ' and the fire spread to and consumed ties belonging to the plaintiff, located on the right of way. In an action against the railroad company, held that the landowner was not its agent, so as to make it liable for his act in setting out the fire.
    Appeal from Wayne Circuit Court. — lion. E. M. D earing, Judge.
    
      Reversed.
    
      R. T. Railey and N. A. Mozley for appellant.
    (1) The evidence in this case was insufficient to authorize a recovery on the part of plaintiff, and the court should have so declared. R. S'. 1909, sec. 2021; Swearinger v. Railroad, 221 Mo. 644; Clark v. Clark, 59 Mo. App. 532; Wesby v. Bowers, 58 Mo. App. 419; Spiro v. St. Louis Transit Co., 102 Mo. App. 250. (2) There is no evidence in the record that Carroll, the alleged author of plaintiff’s exhibit “A,” was the agent of defendant, or that his relations to defendant were such that gave him the authority to employ Warren or to give Warren permission to start in motion the agency which resulted in plaintiff’s damage. 31 Cyc. 1643, 1652; Knoche v. Whiteman, 86 Mo. App. 568; Salmon Palls Bank v. Leyser, 116 Mo. 51; Diel v. Railroad, 37 Mo. App. 454; Waters-Pierce Oil Co. v. Zinc Co., 98 Mo. App. 324; Glencoe Lime & Cement Co. v. Clore, -Mo. App. -, 153 S. W. 542; Groneweg & Schoentgen Co. v. Estes, 144 Mo. App. 418; 16 Cyc. 1005; Helm v. Railroad, 98 Mo. App. 148; Hodkinson v. McNeal Machinery Co., 161 Mo. App. 87.
    No brief filed for respondent.
   REYNOLDS, P. J.

Plaintiff, owner of a lot of ties, had stacked them on the right of way of the defendant railroad company, at Barlow’s switch, in Wayne county, preparatory to being loaded on cars and transported by defendant, the ties being stacked at the place customarily used for that purpose. There was the frame of an old sawmill standing partly over the right of way of the defendant, the principal part, however, on the land of a Mr. Warren. This old sawmill had been abandoned and was a mere shell. A lot of lumber and trash was lying around it, and Mr. Warren, desiring to have the fence along the right of way and between that and Ms property cMsed or completed, appears to bave been endeavoring to have tbe railroad people close up tbis gap, to do wbicb it was necessary to remove all that part or corner of tbis old mill wbicb projected into the right of way and across tbe line where tbe fence was to go. Mr. Warren appears to bave bad considerable talk and some correspondence with various agents of tbe railroad about filling up tbis gap in tbe fence. Finally be received a letter from someone, signing himself “division engineer,” wbicb appears to bave been in answer to a letter that Mr. Warren bad written to tbe .claim agent of tbe road, with whom be had discussed tbe matter of tbe removal of tbe mill structure and construction of tbe fence. Tbis letter sets out that in reply to a letter of Mr. Warren stating that be (Warren) “would set fire and clear up your rubbish at tbe north end of Barlow’s switch, whenever we were ready to close tbe gap in tbe fence at that point. You will please do tbis at once and I will take steps toward having tbis fence constructed at an early date.” In addition to this letter, it appears that Mr. Warren bad some talk with tbe section foreman, whom be told of tbis letter, and tbis foreman appears to bave told Mm that be could go ahead and burn tbe mill down. Mr. Warren accordingly set fire to tbe mill. While it was burning, tbe fire spread to where plaintiff’s ties were piled on tbe right of way of defendant’s road and 100 of them were burned up.

Plaintiff brought bis action in tbe justice’s court to recover for the value of these ties, on tbe theory that Warren, in setting fire to the mill was acting as the agent of defendant, and that be bad acted carelessly and negligently in allowing tbe fire to spread to these ties. On appeal of defendant from tbe judgment against it in tbe justice’s court, the cause went to tbe circuit court, where, upon a trial before tbe court and a jury, plaintiff recovered a verdict and judgment for the value of the ties. It is from this judgment that defendant prosecutes this appeal.

Reading all the testimony in the case, we are unable to find any substantial evidence tending to show that Warren, in the act of burning this old sawmill, was acting as the agent or in the employ of the defendant railroad company. Considering the letter from the division engineer and the conversation in evidence between Mr. Warren and the section foreman, and waiving the point that there was no authority shown in them from the defendant to bind it, we find nothing whatever in the letter or conversation beyond a mere permission (and that is conceding in favor of plaintiff, that he had proved the authority of the engineer and foreman, and placing a construction on this testimony most favorable for plaintiff) to Mr. Warren to burn or remove this mill or frame. What Mr-Warren wanted the railroad people to do, was to construct the fence. The effect of the letter from the division engineer, is to give a mere permission on the part of this representative of the railroad company to Mr. Warren to remove that part of the mill, a small corner of which projected over into the right of way of the defendant railroad company, by burning it, agreeing when he did that, the defendant would build the fence. In no sense whatever can it be construed into an agency to burn or do anything else for defendant. The point in the minds of the parties evidently was that for his benefit Mr. Warren wanted the right of way fence extended along his own property, and to do that it was necessary to remove this obstruction; when he did that defendant would build the fence. At most, it could be held to authorize Warren to go on the right of way and burn or remove that part of the mill on the right of way, but it surely did not make him the agent of defendant in doing that. In short, we find no evidence in the case that can be construed into the creation of an agency in Mr. Warren for the company defendant in burning the mill.

The judgment of the circuit court must be and is reversed.

Nortoni and Allen, JJ., concur.  