Boyd v. Grove

• Decision Date: 04 June 1918
• Citation: 89 Or. 80,173 P. 310
• Parties: BOYD v. GROVE ET AL.
• Court: Oregon Supreme Court

173 P. 310

89 Or. 80

BOYD v. GROVE ET AL.

Supreme Court of Oregon

June 4, 1918

In Banc.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Action by Perry Boyd against Harrison Grove and others, doing business under the firm name of Grove & Garcia. Judgment on verdict for plaintiff, and defendants appeal. Affirmed.

The action was to recover damages for trespasses on plaintiff's lands by defendants' sheep. The trespasses are alleged to have taken place April 12, 1917 and May 3, 1917. Plaintiff alleges that the sheep ate the grasses growing on his lands and tramped out the roots. The verdict was for $300.

P.J. Gallagher and W. H. Brooke, both of Ontario, for appellants. Charles W. Ellis, of Burns, for respondent.

McCAMANT J.

Error is assigned on the instruction given that plaintiff was entitled to at least nominal damages. The fifth paragraph in the first count of the complaint is as follows:

"That on or about the 12th day of April, 1917, the defendants wrongfully, unlawfully, and without the plaintiff's consent, and against his will, herded grazed, and pastured a band of approximately 700 of their sheep on the said land, they well knowing that the land belonged to the plaintiff and that the plaintiff would not permit trespassing thereon, and whereby on account of the said acts of the defendants the pasture for the said lands was injured for the year 1917, and the roots of the grasses growing thereon in many places permanently injured; that a part of the said land was fenced."

The corresponding portion of the answer is as follows:

Defendants "deny that on April 12, 1917, or at any other time approximately 700 or any other number of their sheep were herded, grazed, or pastured on said land, and allege that on said date about 80 sheep got away from their herder and entered the said land, but were immediately taken out by the said herder."

Defendants clearly admit a trespass, and it is elementary that a party guilty of trespass must pay at least nominal damages. The portion of the answer above quoted is a qualified denial. For this reason, and also because it is not specially pleaded, plaintiff was not required to reply.

Defendants contended that by the exercise of reasonable diligence at the time of the first trespass plaintiff could have driven the sheep off his premises and thus minimized the damages. In response to this contention the court instructed the jury as follows:

"It is also the duty of a person seeing himself damaged or about to be damaged to use reasonable efforts to prevent or minimize those damages; and therefore you may consider all of the circumstances detailed to you in evidence in this case in determining whether, under the peculiar circumstances of this case, it was the duty of this plaintiff to take any action in the premises to minimize or reduce his damages; and you may consider this in determining the damages to which you may think the plaintiff is entitled in this case, if any."

Defendants claim that this instruction is erroneous as passing a question of law up to the jury. We do not think that the instruction is open to this criticism. The duty of a party injured by the tort of another is to exercise the diligence of an ordinarily prudent man to minimize the damages. American Smelting Company v. Riverside Dairy, 236 F 510, 514, 149 C. C. A. 562. If under the testimony only one inference can be drawn as to the plaintiff's duty, the question is one of law for the court. Otherwise the question is for the jury. Richmond v. McNeill, 31 Or. 342 352-353, 49 P. 879. We cannot say as a matter of law that plaintiff failed to exercise the diligence of a reasonably prudent man in the respect pointed out, and the court did not err therefore in leaving the question with the jury.

The instruction given was good as far as it went. In the absence of a request stating the law more specifically, defendants are not entitled to complain on this ground. Kincart v. Shambrook, 64 Or. 27, 32, 128 P. 1003.

Defendants invoke the principle that special damages cannot be recovered unless a foundation for such recovery is laid in the pleadings. It is contended that this principle was violated in the admission of testimony. After proof had been received of the trespasses alleged in the complaint, the court received evidence over defendants' objection and exception that at the time in question the feed was about all gone in the part of Harney county in which plaintiff lived. Thereupon over objection and exception the following question was answered:

"What would be the market value of that feed [the grass consumed by the sheep] in that community at that time, under those circumstances, for the purpose of saving stock, as you have told here?"

The first answer was:

"That grass would be worth $300 to $400 to anybody with poor stock."

This answer was stricken out, and the witness thereupon said that the feed would be worth $300 to $400.

We do not think that the testimony so received and other testimony to the same purport were open to the objection urged. Market value is usually dependent on demand and supply. It was therefore pertinent to prove that the supply of feed was limited and to take the opinion of a qualified witness as to the value of the grass consumed by defendants' sheep. Pacific Live Stock Company v. Murray, 45 Or. 103, 109, 76 P. 1079. That this testimony tends to prove general as distinguished from special damages is taught by Wheeler v. O'Brien Bros. (Nev.) 165 P. 339.

Defendants also contend that no foundation was laid in the pleadings for testimony as to the injury to plaintiff's freehold. The complaint alleges the usefulness of plaintiff's property for grazing purposes, and that, if it is overstocked, the roots of the grasses are tramped out, and the land is permanently injured. It is then charged that the land was so injured by the trespasses complained of. We think that the pleadings lay a foundation for plaintiff's testimony on this subject.

After testimony to the value of the grass consumed by defendants' sheep, plaintiff testified that there was more or less permanent injury to his property as the result of the trespasses. Thereupon, over defendants' objection and exception, he was permitted to answer the following question:

"How much less, if any, was the market value of your premises immediately after the sheep had trespassed upon it as you have related than they were immediately prior to the time the sheep trespassed?"

The answer was $600 or $700. It is well settled in this jurisdiction that a witness cannot testify categorically as to the quantum of damages sustained by a plaintiff through the acts complained of. Montgomery v. Somers, 50 Or 259, 262, 90 P. 674; Pacific Company v. Elmore Packing Company, 60 Or. 534, 538, 120 P. 389, Ann. Cas. 1914A, 371. But the foregoing testimony does not come within the above rule. It was competent for plaintiff to prove by the opinion evidence of a qualified witness the value of his property before the trespass and also to prove its value after the trespass by the same character of testimony. Blagen v. Thompson, 23 Or. 239, 259, 31 P. 647, 18 L. R. A. 315; Ruckman v. Imbler Lumber Company, 42 Or. 231, 233, 70 P. 811; Willis v. Horticultural Fire Relief, 77 Or. 621, 627, 152 P. 259. This being well settled, it would seem very technical to exclude testimony to the same end which is distinguishable only in that the witness subtracts the one sum from the other and testifies to the remainder. That such testimony may be received without error is the...