Matthews v. Missouri Pacific Railway Co.

• Decision Date: 23 February 1898
• Citation: 44 S.W. 802,142 Mo. 645
• Parties: Matthews v. Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

44 S.W. 802

142 Mo. 645

Matthews v. Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

February 23, 1898 ^[*]

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

Elijah Robinson and Stuart Carkener for appellant.

(1) The court erred in overruling the defendant's application for a continuance, and forcing it to trial without the depositions of the plaintiff and the witness Applegate. In this State it has uniformly been held that where a continuance is refused a party who has used due diligence to procure his evidence, such refusal constitutes reversible error. McLean v. Harris, 1 Mo. 501; Riggs v Fenton, 3 Mo. 28; Moore v. McCullock, 6 Mo 444; Tunstall v. Hamilton, 8 Mo. 500; McKay v State, 12 Mo. 492; Barnum v. Adams, 31 Mo. 532; State v. Anderson, 96 Mo. 241. (2) The court erred in permitting witness Gentry to testify as to the effect of a spark falling in the chaff in the barn. It was not a matter for expert evidence, and it was not proper for the witness to express an opinion in regard to it. Moreover, it was not shown that the witness was qualified to form an opinion on the subject. Walton v. Railroad, 40 Mo.App. 540; Gouyly v. Railroad, 35 Mo.App. 87; Railroad v. Kellogg, 94 U.S. 469. (3) Mr. Downing, witness for defendant, should have been permitted to testify whether tramps were in the habit of coming there. First. His testimony on this question would have corroborated that of Mr. Wood, and defendant was entitled to it for that purpose. Second. This was a case of purely circumstantial evidence, and the court should have admitted every item of competent evidence legitimately bearing on the issues involved; should have admitted all the evidence having a tendency to put the jurors in the position of a man who had lived there, and was perfectly familiar with all the facts and surroundings. (4) The proper measure of damages was the difference between the value of the farm before the fire and after the fire. White v. Stoner, 18 Mo.App. 540; Gates v. Railroad, 44 Mo.App. 495; Shannon v. Railroad, 54 Mo.App. 223; Dwight v. Railroad, 34 Cen. Law. Jour. 409; Railroad v. Tubbs, 47 Kan. 630. (5) The court erred in permitting the plaintiff, as a witness, to express an opinion as to what the barn was worth at the time of the fire. First. The question was too general. The word worth, as there used, may have meant what it had cost to build the barn, or what it would cost to rebuild it, or what it was worth as a matter of convenience to the plaintiff; neither of which would constitute the proper measure of damages. Second. The plaintiff had not shown himself qualified to express an opinion as to the value of the barn at the time of the fire. (6) As applicable to all the foregoing points, defendant invokes the rule that where error is committed a presumption of prejudice arises, and the judgment must be reversed, unless it clearly appears from the entire record in the case that the verdict returned by the jury was the only one that could have been rendered, regardless of the errors of the court. Green v. St. Louis, 106 Mo. 454; Dayhorsh v. Railroad, 103 Mo. 570; McDonald v. Motney, 82 Mo. 358; State v. Simons, 68 Mo. 305; City of Clarence v. Patrick, 54 Mo.App. 467: Walter v. Hoeffner, 51 Mo.App. 50; Suttic v. Aloe, 39 Mo.App. 43; Gilmer v. Higley, 110 U.S. 50; Smith v. Shoemaker, 17 Wall. 639; Stafford v. Oscaloosa, 57 Iowa 750; Hall v. Jenness, 6 Kan. 364. (7) The court erred in giving plaintiff's instruction number 8. First. It did not give the jurors any rule whereby to fix the damages, but on the contrary left them to erect their own standard for the measurement of the same. Flynt v. Railroad, 38 Mo.App. 94; Wilburn v. Railroad, 36 Mo.App. 203; Goss v. Railroad, 50 Mo.App. 614; Schaub v. Railroad, 106 Mo. 74. Second. It permitted plaintiff to recover for injury done to the freehold, which was not proper. He had parted with the title and was only a tenant. He therefore was entitled to recover only for the injury which he sustained as a tenant. Kennett v. Plummer, 28 Mo. 142; Woods v. Hildebrand, 46 Mo. 284; Johnson v. Houston, 47 Mo. 227; Kennedy v. Siemere, 120 Mo. 73; Springfield E. & T. Co. v. Donovan, 120 Mo. 427; Bobb v. Granite Co., 41 Mo.App. 642; Gilbert v. Kennedy, 22 Mich. 5; Foster v. Elliott, 33 Iowa 216; Parks v. Barton, 15 Pick. 198; Randell v. Cleveland, 6 Conn. 328; Elliott v. Smith, 2 N.H. 430; Anderson v. Nesmith, 7 N.H. 167; Lane v. Thompson, 43 N.H. 320; Page v. Hamilton, 10 Cush. 99; Cole v. Stewart, 11 Cush. 181.

Warner, Dean, Gibson & McLeod and Stewart Taylor for respondent.

(1) The court properly overruled defendant's application for continuance for several reasons, its evident purpose being delay. State v. Foye, 53 Mo. 337, Lohart v Buchanan, 50 Mo. 201; Baker v. Shaw, 35 Mo.App. 619; State v. Reed, 89 Mo. 171; Lohart v. Buchanan, 50 Mo. 203; Corder v. Primm, 60 Mo.App. 424; Taussig v. Shlds, 26 Mo.App. 326. (2) Gentry's evidence is competent, because it tended to prove the possibility, and consequent probability, that the fire was communicated to plaintiff's property by one of defendant's engines, and its probative force was for the determination of the jury. Campbell v. Railroad, 121 Mo. 350; Railroad v. Richardson, 91 U.S. 470; Smith v. Railroad, 63 N.H. 25; Railroad v. Gilbert, 52 F. 711; Thacher v. Railroad, 85 Me. 509; Sheldon v. Railroad, 14 N.Y. 223; Aldrige v. Railroad, 3. M. & G. 515. (3) All the testimony as to how chaff would burn was stricken out by the court. (4) The fact that tramps may have passed there the day before or the week before or a month before the fire, could have no bearing on the question as to the origin of the fire on the evening of September 1, 1891. (5) It will not do to say that a Missouri farmer, who has built and paid for a barn, does not know its worth or value. This statement of its value is a statement of a fact and not an opinion. What an article costs is some evidence of its value, when it is shown that at the time in question it was of the same value that it was at the time of its purchase. Ins. Co. v. Taylor, 24 P. 337; 2 Beach, Law of Ins., sec. 1292; Stiltz v. Ins. Co., 29 N.W. 607; Thomason v. Ins. Co., 61 N.W. 843; White v. Hermann, 51 Ill. 246; Railroad v. Irvin, 29 Ill. 178; Browne v. Moore, 32 Mich. 258; Brill v. Flagler, 23 Wend. 356; Railroad v. Bunnell, 81 Pa. St. 414; 1 Suth. on Dam., p. 798. The value of such property is more or less a matter of opinion. Railroad v. Calkins, 90 Mo. 543; Caulting v. Railroad, 54 Mo. 391. (6) If the plaintiff was not in a position to know the value, it was not a difficult task for the counsel to show this by a proper cross-examination, by inquiring into his experience and sources of information. This he did not do; nor did he call other witnesses to show that the value placed on the property destroyed was excessive. Stevens v. Springer, 23 Mo.App. 385; 2 Suth. on Dam. 375, 378; Robertson v. Knapp, 35 N.Y. 92; Joy v. Hopkins, 5 Denio, 84. (7) Property holders and residents of the neighborhood where property is situated, are competent witnesses to fix the price of such property in that neighborhood. Thomas v. Mallinckrodt, 43 Mo. 65; Tate v. Railroad, 64 Mo. 153; Seyfarth v. Railroad, 52 Mo. 450; Bowne v. Ins. Co., 46 Mo.App. 476; Tubbs v. Garrison, 25 N.W. 923; Fisher v. Crescent Ins. Co., 33 F. 544. There was no other issue to be submitted to the jury. This court is emphatic in declaring that the question of contributory negligence is not to be considered in this case. This is an action under the statute, which is remedial in its nature. If defendant destroyed plaintiff's property by fire from an engine it must respond in damages. Campbell v. Railroad, 121 Mo. 349; Matthews v. Railroad, 121 Mo. 299. (8) This right of action is given to plaintiff by statute. If plaintiff received money from the insurance company in part payment for his barn, it was on a contract between him and the insurance company. The defendant company was not a party to that contract directly or indirectly. Defendant could defeat the object and purpose of this statute if its contention be correct. Matthews v. Railroad, 121 Mo. 336; Dillon v. Hunt, 105 Mo. 163; Thornton v. Royce, 56 Mo.App. 183; 1 Suth. on Dam. (1882) p. 242; Cunningham v. Railroad, 102 Ind. 478; Weber v. Railroad, 35 N. J. L. 412; Ins. Co. v. Railroad, 25 Conn. 265; Briggs v. Railroad, 72 N.Y. 26; Rockingham v. Bosher, 39 Me. 255. (9) Appellant complains of the instruction on the measure of damages. It asked no instruction on this point, nor did it ask any directing the jury what elements of damage they could consider. To sustain its position on this point, appellant cites Goss v. Railroad, 50 Mo.App. 614, and Schaub v. Railroad, 106 Mo. 74, and some other decisions rendered prior to the time those were announced. All of which have been overruled. Haymaker v. Adams, 61 Mo.App. 586; McCarroll v. Kansas City, 64 Mo.App. 288. These cases declare the correct rule in such matters. Browning v. Railroad, 124 Mo. 71; Campbell v. Railroad, 121 Mo. 340; Anderson v. Miller, 33 S.W. 617; Faulkner v. Railroad, 51 Mo. 311; Tate v. Railroad, 64 Mo. 158. (10) Upon the undisputed evidence in this case, as we have already shown, the verdict of the jury was not excessive. If there had been no instruction as to the measure of damages, or the instruction had been wholly erroneous, yet if the amount found by the jury was fully authorized by the evidence, the defendant is in no position to complain. Noble v. Blount, 77 Mo. 239; R. S. 1889, sec. 3569; Blewett v. Railroad, 72 Mo. 583; Mauerman v. Siemerts, 71 Mo. 101; State v. Hopper, 71 Mo. 425; Bradford v. Floyd, 80 Mo. 207; Daudt v. Keen, 124 Mo. 105; R. S. 1889, sec. 2303; Haehl v. Railroad, 119 Mo. 325; McGowan...