Bullerdick v. Pritchard

• Decision Date: 08 February 1932
• Docket Number: 12977.
• Citation: 90 Colo. 272,8 P.2d 705
• Parties: BULLERDICK v. PRITCHARD.
• Court: Colorado Supreme Court

8 P.2d 705

90 Colo. 272

BULLERDICK v. PRITCHARD.

No. 12977.

Supreme Court of Colorado

February 8, 1932

In Department.

Error to District Court, Mesa County; George W. Bruce, Judge.

Action by Frank Pritchard against A. B. Bullerdick. From judgment for plaintiff, defendant brings error, and applies for a supersedeas.

Judgment affirmed.

A. B. Crosswhite, of Grand Junction, for plaintiff in error.

Alexander Bowie, of Grand Junction, for defendant in error.

BURKE J.

These parties are hereinafter referred to by name. Pritchard sued Bullerdick for $1,160 actual damages caused by trespass of sheep. This he alleged was accompanied by malice and reckless disregard of his rights, wherefore he damanded $1,000 additional as 'smart money.' The jury returned a verdict for $600 actual, and $700 exemplary, damages. To review a judgment accordingly, Bullerdick prosecutes this writ and asks that it be made a supersedeas. Both request final judgment on this application. A portion of Pritchard's claim was held by assignment, but, since no question here raised relates to that transaction, we treat the whole as originally his own.

Briefly stated, the twenty assignments amount to this: The verdict is unsupported, because (1) there was no evidence of actual damages; (2) if there was, those allowed were excessive; (3) the court, by instruction 6, gave the jury the wrong measure (4) exemplary damages were not justified.

In 1930 Pritchard held a lease on two sheep pastures which we designate as tracts A and B. They contained 800 and 840 acres respectively, and both were well fenced. He claims Bullerdick pastured his own flock on these tracts destroyed the herbage, and, by thus depriving Pritchard of stock feed he could not reasonably replace, injured his flock. Bullerdick denies the act and the damage. This controversy is presented here by 230 pages of transcript, not indexed, and one-third as many of 'briefs.' Much of it is superfluous, but we have carefully examined it all.

1. It could serve no useful purpose to review this evidence. It is conflicting in many particulars, but the trespass and damage are clearly supported. Counsel for Bullerdick cites numerous cases in support of his position, of which the following are illustrations: Roberts v. Lehl, 27 Colo.App. 351 149 P. 851; Richards et al. v. Sanderson, 39 Colo. 270, 89 P. 769, 121 Am.St.Rep. 167; Williamson v. Fleming et al., 65 Colo. 528, 178 P. 11; Schecter v. Morgan, 66 Colo. 35, 178 P. 564. Generally, these involve trespass by cattle, with damages limited to the crop destroyed, and are based upon fencing statutes. They are clearly inapplicable in a case of trespass by sheep in charge of a herder. Bell v. Gonzales, 35 Colo. 138, 83 P. 639, 117 Am.St.Rep. 179, 9 Ann.Cas. 1094.

2. If depreciation in rental value, or market value were the sole measure of Pritchard's damage, there is evidence in this record to support a larger verdict than was returned. Some of it shows the rental value of A to be $200 and of B to be $500, and the value remaining after Bullerdick got through with it was practically nil.

3. The measure of damages given by instruction No. 6 is the amount which 'will reasonably compensate' him for all the loss he sustained 'by reason of defendant's act.' It permitted the jury to consider 'the value of the same to the plaintiff * * * considering the nature of the property, the purpose for which it was intended to be used, the situation of the plaintiff as a result of defendant's acts, * * *' and 'any additional loss in weight and value' at market time. Since the total was limited to Pritchard's actual loss, we see no objection to this instruction.

Counsel for Bullerdick insists that the actual market value of the pasturage destroyed, or the difference in its value Before and after the injury, is the limit of recovery. The rule so contended for, usually applicable in simple cases of partial or complete destruction of growing crops, is wholly inadequate under the facts of this case. Here is evidence that the pasturage destroyed was the sole reliance of Pritchard for the maintenance of his own flock at unusual and critical times; that all reasonable efforts to secure other sources failed; that, by reason thereof, his loss far exceeded the rental value of the land, or the market value of the pasture. The subject of measure of damages is a complicated, and often confusing one. The general underlying principle, however, is that whoever unlawfully injures another shall make him whole. As applied to trespass by live stock, counsel for Pritchard cite 3 Blackstone, 209, 212 (1765 A. D.) and Exodus, 22:5 (about 1200 B. C.). These authorities seem in point. Perhaps, however, such modern precedents ought not be relied on to establish a rule so ancient when one is at hand a thousand years older. Hence see Code of Hammurabi, sections 57, 58 (about 2250 B. C.) where sheep are specifically mentioned. The application of this rule in the instant case seems simple, and we think the trial court made it. Bullerdick's untenable position may be thus illustrated. Suppose Pritchard required pasturage for a thousand sheep and that he could obtain it from either of two neighbors, X or Y, for $25. He rented from X. Thereupon Bullerdick destroyed the pasture...