Doty v. Quincy, O. & K. C. R. Co.

• Decision Date: 01 March 1909
• Citation: 116 S.W. 1126,136 Mo. App. 254
• Court: Missouri Court of Appeals
• Parties: DOTY v. QUINCY, O. & K. C. R. CO.

116 S.W. 1126

136 Mo. App. 254

DOTY v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

1. DAMAGES (§ 159) — PLEADING AND PROOF — INJURIES TO APPLE TREES AND APPLES.

Pleading damages to apple trees and the apples thereon, while not in special terms speaking of windfalls, evidently purports to include the ungarnered fruit of the trees, which would necessarily consist of apples on the ground under them, as well as on the trees, and hence authorizes evidence as to the destruction of apples which had fallen on the ground.

2. CROPS (§ 1) — NATURE AS REAL OR PERSONAL — FRUIT TREES AND FRUIT.

Matured apples should not be treated as a part of the realty, but as personalty; but the trees, being attached and sustained by the soil, are real, and not personal, property.

3. DAMAGES (§ 112) — INJURIES TO FRUIT TREES AND FRUIT — MEASURE OF DAMAGE.

For injuring and destroying by fire apple trees and apples thereon, the measure of damage is the difference between the market value of the apples just before and after the fire, added to the difference between the market value

of the land immediately before and after the injury, treating the apples as personalty.

4. DAMAGES (§ 217) — INSTRUCTIONS — INJURY TO FRUIT TREES.

In an action for injuries to premises caused by fire which injured apple trees and apples, the jury were instructed that the damage was the difference, if any, in the reasonable value of the property and premises just prior to the fire and just after it, not exceeding the amount claimed. Held: That this did not declare the true rule, which was to treat the apples as personalty and award as a part of the damages the difference between their market value just before and after the fire, and treat the trees themselves as realty, and find the amount of damages thereto by ascertaining the difference between the market value of the land immediately before and after the injury; that the instruction not only authorized damages to the market value of the land and the crop, but also allowed damages for the trees considered apart from the land; and that this was palpable error, especially in view of testimony that each tree was of a certain value, thus misleading the jury to award double damages for injury to the trees.

5. TRIAL (§ 296) — ERROR IN INSTRUCTIONS AS TO DAMAGES — CURE BY OTHER INSTRUCTIONS.

An error in an instruction for plaintiff as to the measure of damages cannot be regarded as a mere nondirection, but as a positive misdirection, which cannot be cured by instructions given at defendant's instance.

Appeal from Circuit Court, Grundy County; G. W. Wannamaker, Judge.

Action by Levi Doty against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. G. Trimble and Hall & Hall, for appellant. A. G. Knight, for respondent.

JOHNSON, J.

Plaintiff sued under section 1111, Rev. St. 1899 (Ann. St. 1906, p. 963), to recover damages for an injury to apple trees and the fruit thereon, alleged to have been caused by a fire from one of defendant's locomotives. The answer is a general denial. Verdict and judgment were for plaintiff in the sum of $450, and the cause is here on the appeal of defendant.

The injury occurred September 26, 1906. It appears quite conclusively that sparks from a passing engine on defendant's railroad set fire to grass and stubble, and that the fire spread...