Cooley v. Kansas City, P. & G. R. Co.

• Decision Date: 09 May 1899
• Citation: 51 S.W. 101,149 Mo. 487
• Court: Missouri Supreme Court
• Parties: COOLEY v. KANSAS CITY, P. & G. R. CO.

51 S.W. 101

149 Mo. 487

COOLEY v. KANSAS CITY, P. & G. R. CO.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

RAILROADS — DESTRUCTION OF TREES — ACTIONS — MEASURE OF DAMAGES — PLEADING — SUFFICIENCY — CONTINUANCE — DISCRETION — WITNESSES — CROSS-EXAMINATION — APPEAL — REVERSIBLE ERROR.

1. Under Rev. St. § 2114, providing that omissions, imperfections, etc., in the trial, not being against the justice of the suit, may be

supplied when the judgment is given, or by the court into which the judgment is removed by appeal, an omitted jurat to the affidavit for appeal may be supplied by the trial court after judgment of reversal.

2. The appellate court cannot, in a subsequent appeal, go behind an order granting a former appeal to determine the sufficiency of the affidavit, for such appeal, where the former appeal was submitted on its merits, without any objection to the order.

3. An order refusing a continuance for an absent witness will not be disturbed where his testimony was cumulative.

4. Applications for continuance are addressed to the discretion of the trial court, with the exercise of which the revisory courts will not interfere unless it is abused.

5. In an action for value of trees destroyed by defendant, a complaint alleging that plaintiff conveyed a right of way to defendant, reserving all fruit trees thereon, and, if any of them were destroyed by defendant, it was to pay therefor, and that defendant did destroy a number of the trees, and failed to pay for them, is not insufficient in failing to allege ownership, since it is inferable from the other facts pleaded.

6. Plaintiff conveyed a right of way to defendant, reserving the trees thereon, for the destruction of which defendant was to pay their reasonable value. Held, that in an action to recover for trees destroyed the measure of damages is not the difference in value of the land before and after their destruction, but the value of the trees so destroyed, since the ownership of the land under the conveyance was distinct from that of the trees.

7. In an action to recover the value of fruit trees destroyed by defendant, after plaintiff's witnesses had testified as to the value of the several kinds of fruit trees, and on cross-examination as to the distances they were apart, the court refused to permit them to be asked if they believed the acreage value which their figures would lead to was correct. Held, that such curtailing of the cross-examination is not reversible error, since defendant could easily, from such data, have calculated the acreage value, and presented it in his argument to the jury.

Appeal from circuit court, Jasper county; E. C. Crow, Judge.

Action by W. C. Cooley against the Kansas City, Pittsburg & Gulf Railroad Company. There was a judgment for plaintiff, and defendant appealed to the Kansas City court of appeals, and after a judgment of affirmance the cause was transferred to the supreme court. Affirmed.

Trimble & Braley, John A. Eaton, and John W. McAntire, for appellant. McReynolds & Halliburton, for respondent.

GANTT, P. J.

This case has been certified to this court by the Kansas City court of appeals because of an alleged conflict in the opinion of the Kansas City court of appeals with the opinion of the St. Louis court of appeals in Shannon v. Railway Co., 54 Mo. App. 223. In the latter case the landowner sued the railroad company for damages for the destruction by fire of fruit trees and a hedge belonging to the plaintiff, an adjoining proprietor, and it was ruled that the measure of damages was the difference in the value of the land of plaintiff before and after the fire. In the case at bar, however, the suit is upon a contract in which the defendant company obtained a right of way from plaintiff, and agreed that, if the defendant found it necessary to remove or destroy certain fruit trees growing, then standing on the land, it would pay for them at a reasonable price. We agree with the Kansas City court of appeals that the contract, by its terms, segregated the title to the trees from the land, and that the only question involved is the reasonable value of the trees. To apply the rule laid down in Shannon's Case, supra, would be to allow plaintiff to recover for damages to land which had become the property of defendant. It seems perfectly obvious to us that the two cases are clearly distinguishable, and the very satisfactory opinion of the Kansas City court of appeals is adopted, and made a part of the opinion, as fully expressing our views of the law of the case. That opinion is as follows:

"In the Kansas City Court of Appeals, March Term, 1896.

"W. C. Cooley, Respondent, vs. Kansas City, Pittsburg & Gulf Railroad Company, Appellant. 4,322.

"Appeal from Jasper Circuit Court.

"For a proper understanding of the question raised by the present appeal, the statement of the case made by us when it was here on another occasion, and reported in 60 Mo. App. 641, will, we think, be found sufficient. The result of the former appeal was a judgment here reversing that of the circuit court, and remanding the cause. After the cause had been remanded to the latter court, the defendant moved to dismiss the same, for the reason that no affidavit for an appeal had been filed by the plaintiff, and therefore the appeal granted was unauthorized by law, and did not confer jurisdiction upon this court to render said judgment of reversal. To the affidavit upon which the appeal was granted there was no jurat appended. The circuit court, after hearing evidence as to whether or not the plaintiff's attorney, by whom the affidavit was signed, had made oath thereto before the clerk, overruled the defendant's said motion to dismiss, and permitted the clerk to attach the proper jurat to the affidavit. The order granting the appeal was regular on its face, and our attention was at no time called to the defect in the affidavit, either by motion or otherwise. Section 2114, Rev. St., expressly provides that the omissions, imperfections, defects, and variances mentioned in the preceding section (2113), and others of like nature, not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court when the judgment shall be given, or by the court into which such judgment shall be removed by writ of error or appeal. No reason is therefore seen why the omitted jurat could not have been supplied by leave of either this or the circuit court, even after the judgment of reversal was given by the court. Bergesch v. Keevil, 19 Mo. 127 Crum v. Elliston, 33 Mo. App. 591. But, if we are in error in this, there is still another reason why we will not countenance the defendant's assault on our judgment. St. Louis Bridge & Construction Co. v. Memphis, C. & N. R. Co., 72 Mo. 664, was where it was objected in the supreme court that the affidavit for the appeal was insufficient. The court, in disposing of the objection, said: `If the affidavit were not such as to warrant the order granting the appeal, the respondent should have made his motion to dismiss the appeal before it was...