Carter v. Wabash R. Co.

• Decision Date: 17 December 1907
• Citation: 106 S.W. 611,128 Mo. App. 57
• Parties: CARTER v. WABASH R. CO.
• Court: Missouri Court of Appeals

106 S.W. 611

128 Mo. A. 57

CARTER v. WABASH R. CO.

St. Louis Court of Appeals, Missouri.

December 17, 1907.

Rehearing Denied January 7, 1908.

1. DAMAGES—DESTRUCTION OF PROPERTY.

The general rule is that the measure of damages for property destroyed by fire negligently set is the value of the property consumed at the time and place of its destruction.

2. SAME—DESTRUCTION OF GROWING CROPS.

In ordinary cases, the measure of damages for the destruction of a growing crop by fire is its value at the time of the fire.

3. SAME—BREACH OF CONTRACT—TORTS.

Damages resulting from breach of contract or tort are recoverable, where they naturally

and proximately result from the breach or tort, though they are not manifest at the time of the wrong.

4. SAME—FIRES—INSTRUCTIONS.

In an action by a landlord in a lease, stipulating that the land shall be used only for grazing and cutting hay, for fire burning over a meadow, an instruction that the measure of damages is the market value of the crop of hay the land would have produced, less the expense of harvesting, is erroneous, though the evidence shows that the grass in the meadow was destroyed in the spring of the year, and that it grew up in weeds and wild grass; but the measure of damages is the value of the crop at the time of the fire.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Richard Carter against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Geo. S. Grover and Geo. Robertson, for appellant. E. S. Gantt, for respondent.

BLAND, P. J.

Plaintiff was the lessee of 175 acres of meadow and pasture lands adjacent to defendant's railroad track, in Audrain county, Mo. He held by a written lease, and his term began March 1, 1905, and terminated March 1, 1906. The lease provided that "none of said lands is to be plowed, but used only for grazing purposes and for cutting hay." Eighty acres of the land lying adjacent to the railroad was in meadow. On March 11, and again on March 12, 1905, defendant's locomotive engines set fire to the meadow and burned over from 20 to 25 acres of it. The action was to recover the resulting damages, and was commenced before a justice of the peace in Audrain county, Mo., and in due course was appealed to the circuit court, where, on a trial de novo, plaintiff recovered judgment, from which defendant appealed to this court.

Defendant admitted that its engines set the fires, and the sole controversy is in respect to alleged errors committed at the trial in the admission and rejection of evidence, and the giving and refusing of instructions in respect to the measure of damages. The trial court, both in the admission of evidence and in its instructions, ruled that the measure of plaintiff's damages was "the difference in the value at harvest time between the stand of grass actually produced on the land burned over and the stand of grass which from the evidence the jury find said land would have produced at harvest time, had it not been burned over. Such values will be estimated at the fair and reasonable market value of the stand of grass at harvest time prior to the actual beginning of the cutting of said grass"—and refused to admit evidence and instruct in defendant's behalf, on the theory that plaintiff's measure of damages was the difference per acre between what plaintiff rented the land at and what it was damaged per acre by reason of the fire. The general rule is that the measure of plaintiff's damages for property destroyed by fire, negligently set, is the value of the property consumed at the time and place of its destruction. Matthews v. Railway, 142 Mo. 645, 44 S. W. 802; 13 Am. & Eng. Ency. of Law (2d Ed.) 533. In Atkinson v. Railroad, 63 Mo. 367, it was held that the measure of the plaintiff's damages for the destruction of forest trees by fire was the difference between the value of the trees before and after the fire. Matthews v. Railway, supra, was an action for the destruction of a barn by fire. It was ruled that the measure of damages was the value of the barn. The same rule was announced in Burke v. Railroad, 7 Heisk. (Tenn.) 451, 19 Am. Rep. 618. In Railway Co. v. Jones, 59 Ark. 105, 26 S. W. 595, in an action by the owner against the railroad company for damages to his meadow destroyed by fire, negligently set by the defendant, the court said: "The measure of damages is the cost of reseeding the meadow, and its rental value until it is restored." In Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Hixon, 110 Ind. 225, 11 N. E. 285, and Vermilya v. Railway Co., 66 Iowa, 606, 24 N. W. 234, 55 Am. Rep. 279, the cost of restoring the meadow to as good condition as it was before the fire was held to be the proper measure of damages. Belch v. Railway Co., 18 Mo. App., loc. cit. 85, was a suit by the owner for the destruction of a meadow by a fire set by defendant. The court said: "If the meadow was utterly destroyed by the fire, the measure of damages would be its value at the time of the fire."

It seems to me that the more logical and better rule for estimating damages in the circumstances related in the foregoing cases, that is, where the realty itself has been damaged, is the difference in the value of the premises before and after the injury. Wiggins v. Railroad, 119 Mo. App. 492, 95 S. W. 311. In Scanland v. Musgrove, 91 Ill. App. 184, the landlord entered upon the demised premises, and destroyed the defendant's growing crop of wheat by plowing it under. The court ruled that defendant "was entitled to recover as damages therefor the value of his two-thirds at the time it was destroyed—not its then value for immediate use, in the condition it then was, but with a view to his right to use the land until it was matured, and then harvest it—and this value may be properly ascertained by showing the probable amount of wheat the crop, as it appeared when destroyed, would likely yield, the value of the same at the market season, and deducting therefrom the necessary cost for harvesting and threshing the same. C., B. & Q. R. R. Co. v. Schaffer, 26 Ill. App. 280, and...