Fairview Fruit Co v. Bro

• Decision Date: 17 February 1920
• Docket Number: (No. 3868.)
• Citation: 102 S.E. 231
• Parties: FAIRVIEW FRUIT CO. v. H. P. BRYDON & BRO.
• Court: West Virginia Supreme Court

102 S.E. 231

FAIRVIEW FRUIT CO.

v.H. P. BRYDON & BRO.

(No. 3868.)

Supreme Court of Appeals of West Virginia.

Feb. 17, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Mineral County.

Action by the Fairview Fruit Company against H. P. Brydon and Richard Brydon, partners, doing business as H. P. Brydon & Bro. Judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

J. Leonard Baer and Taylor Morrison, both of Keyser, for plaintiff in error.

Chas. N. Finnell, of Keyser, for defendant in error.

WILLIAMS, P. [1] This action Is brought by the Fairview Fruit Company, a corporation, against H. P. Brydon and Richard Brydon, partners, doing business as H. P. Brydon & Bro., to recover damages for the destruction of its young growing apple trees by the alleged negligence of defendants in permitting sparks to escape from their "dinkey" engine, which was used in hauling coal from their coal mine on plaintiffs land across the surface thereof to the tipple, thereby setting fire to the dry grass and other combustible materials in its orchard and killing the apple wrees, and for damages caused by wrongfully removing the surface of the land from off the top of the coal and digging up and otherwise destroying other of plaintiffs growing apple trees. Plaintiff recovered judgment for $1,796.86, and defendants have brought the case here, assigning numerous errors. The first is in permitting certain hypothetical questions, concerning the value of the growing apple trees destroyed, to be propounded to witnesses Kephart, Arnold, and Pack. The question asked of witness Arnold was as follows:

"Assuming that that section of country is well adapted to the growing of apples, that the apple trees which were destroyed by fire and which were dug up and carried away by the excavating which was done there had been cultivated, primed, sprayed, and otherwise given reasonable care, what would you say was the average valuation per tree of the trees that were so destroyed, assuming also that they were set out in the spring of the years 1912 and 1913, and that the injuries by fire took place in July and August, 1917, and in April, 1918?"

To which witness answered as follows:

"We usually, and I think it figures about right, estimate the apple trees in good variety and good soil at $1.00 per year."

The facts assumed in the question to exist are all supported by testimony of witnesses, and this is a compliance with the rule respecting the laying of a foundation for a hypothetical question asked of an expert witness. There is testimony that the section of country where plaintiffs commercial orchard was planted is well adapted to apple growing, that 631 apple trees, which had been set out in the spring of the years 1912 and 1913, were destroyed by fire, and by digging up and removing the soil; that although the trees had not reached the bearing stage they had been cultivated, sprayed, and otherwise given reasonable care, and were at the time of their destruction in good condition. The witness was shown to be qualified to testify as an expert as to their value, because he had had experience for at least 24 years in apple growing, and was at that time manager of the Knobley Orchard Company, and had been its manager for about 14 years. The assumed facts, as the basis of a hypothetical question, need not be established by undisputed testimony; it is enough if there is evidence tending to prove them. Bowen v. Huntington, 35 W. Va. 682, 14 S. E. 217; State v. Mus-grave, 43 W. Va. 672, 28 S. E. 813; State v. Cook, 69 W. Va. 717, 72 S. E. 1025; State v. Angelina, 73 W. Va. 146, 80 S. E. 141, 51 L. R. A. (N. S.) 877. Witnesses. Kephart and Parks are also practical, commercial fruit growers, each having had an experience of from 15 to 16 years, and were therefore qualified as expert witnesses, and the questions propounded to them were practically the same as that propounded to witness Arnold. This testimony was entirely proper.

As the measure of its damages plaintiff proved the actual number of trees destroyed by Are, and the number destroyed by diggingup the soil, and the value of each apple tree so destroyed, also the value per acre and the acreage of soil removed from off the coal, and defendants insist that this is not the correct measure of damages; that the correct measure is the difference between the value of the real estate immediately before and its value immediately after the injury. While such is generally a correct rule, nevertheless the method employed by plaintiff is also permissible, and, in view of the circumstances of this ease, if any difference, is the more accurate measure. While it is true that shrubbery, shade trees, and fruit trees, growing on the land, generally have no commercial value apart from the land, it Is nevertheless true that their value in situ is capable of ascertainment with reasonable accuracy. Fruit trees have to be planted and cultivated and allowed to grow for a number of years before they begin to bear any fruit, and it is proper to consider, not only the cost of replacing them, but also the length and loss of time in doing so. It would require 5 or 6 years to produce other trees growing in the same condition and as near the bearing stage as those that were destroyed. They had an actual value In place, apart from any value they may have added to the land, and in that case plaintiff had the right to recover their value, without regard to the diminished value of the land. 3 Sedgwick on Damages (9th Ed.) § 933, and numerous cases cited in note; 4 Sutherland on Damages (4th Ed.) § 1066; Atchison, Topeka & Santa Fe Ry. Co. v. Geiser, 68 Kan. 281, 75 Pac. 68, 1 Ann. Gas. 812. This case holds that in the case of damage for destruction of fruit trees the measurement of damages may be ascertained by either one of two methods: First, their value as a distinct part of the land, if susceptible of such measurement; and, second, the value of the land immediately before and after their destruction, and that where both methods are employed in the same case the jury must ascertain the damage from all the evidence. The following cases are also in point: Mitchell v. Billlngsley, 17 Ala. 391; Montgomery v. Locke, 72 Cal. 75, 13 Pac. 401; Hart v. C. & N. W. Ry., 83 Neb. 652, 120 N. W. 176; Louisville & N. R. R. v. Beeler, 126 Ky. 328, 103 S. W. 300, 11 L. R. A. (N. S.) 930, 128 Am. St. Rep. 291, 15 Ann. Cas. 913; Burdick v. C, M. & St. P. Ry., 87 Iowa, 384, 54 N. W. 439; Missouri, K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526.

The next assignment is the rejection of the testimony of Richard Brydon, one of the defendants, to the effect that Burke Randalls, president and the general manager of plaintiff company, had agreed with him as to the amount of recovery plaintiff should be entitled to recover, in the event defendants injured plaintiffs soil and fruit trees by stripping the surface from off the vein of coal. It appears from the testimony of this witness, taken out of the presence of the jury and incorporated in the record, that Mr Randalls agreed with him on the price of 40 cents per tree for all apple trees destroyed in that manner, and on $30 per acre for the soil. He says he had several conversations with Mr. Randalls in regard to the matter, and that he assured him he had a controlling interest in the plaintiff company, and that what he did in that respect would be agreeable to the other stockholders; that this contract was oral, but the understanding was that Mr. F. C. Reynolds, now deceased, but who was then attorney for both parties, would prepare the papers to be signed, but this was not done, the reason therefor not appearing. It is admitted that Mr. Randalls is the president and general manager of plaintiff. Counsel insists that this testimony was properly rejected: First because it tended to prove an incompleted agreement; second, because it showed that the agreement, if made, related to the corpus of the realty, and plaintiff's general manager had no power to make such an agreement, unless authorized by the board of directors to do so, and no such authority was shown; and, third, because witness admitted some of the conversations were had in the presence of one Thomas Devine and H. P. Brydon, neither of whom was offered as a witness in reference thereto. Mr. Randalls had acquired title to the surface of the land, and made a conveyance thereof to the plaintiff company. A copy of the deed to plaintiff was exhibited In evidence, from which the following clause is here copied:

"Reserving and excepting from this conveyance all coal, lead, iron and other minerals that may be underlying the said land, together with the right at any time to mine and remove from beneath said land in any manner as will be considered least injurious to the surface thereof, all such minerals and the right of ingress and egress for tracks and tramways and other rights of way necessary and requisite to properly...