Ft. Worth & N. O. R. Co. v. Wallace

• Decision Date: 22 October 1889
• Parties: FT. WORTH & N. O. R. CO. <I>v.</I> WALLACE.
• Court: Texas Supreme Court

12 S.W. 227

FT. WORTH & N. O. R. CO.

v. WALLACE.

Supreme Court of Texas.

October 22, 1889.

Appeal from district court, Tarrant county; R. J. BOYKIN, Special Judge.

Templeton & Carter, for appellant. Harris & Harris, for appellee.

STAYTON, C. J.

Plaintiff brought this action to recover damages, which she alleged she had become entitled to by reason of the fact that fire had been communicated to her land through negligence in the management of appellant's cars and right of way, which ran through her land. She claimed that the fire destroyed grass of the value of $650; fence of the value of $200; and that the injury to the land by burning the turf and grass-roots amounted to $375. The averments in reference to the grass, in so far as now necessary to state, were "that said 130 acres so burned off was, at the time, covered with a fine coat of grass, of luxuriant growth, which she had reserved for the wintering of her stock, and which she had begun to use for that purpose only a short time prior to the said burning; that said grass was very valuable, to-wit, of the value of five dollars per acre; and that by reason of the loss and destruction of the same by fire she was deprived of her only winter feed for her stock; that she sustained damage by reason of the loss of said grass in the sum of $650." The court instructed the jury that in estimating the damages to which plaintiff might be entitled they would look to the market value of the grass destroyed at the time and place where it was, and that they might consider the market value for pasturage or hay purposes; there being much evidence as to the value for either purpose. It is urged that it was error so to charge, and the ground of the objection, we understand to have been, that there was no averment as to the particular manner in which the plaintiff desired to use the grass. Such an averment was not necessary. The grass belonged to the plaintiff, and if entitled to recover at all, she was entitled to the market value of the grass as it stood, to be ascertained by its value for any legitimate use. Many witnesses had testified to its value if it be used for pasturage, as had many if it was to be used to make hay; but they all had reference to the value of the grass as it stood at the time it was destroyed.

It is urged that the court erred in the following paragraph of the charge: "If you should think that the defendant is liable to the plaintiff for the burning of her grass under the foregoing instructions, and should also believe that the turf or sod of said grass was injured by the burning of said grass, you should find for the plaintiff; also, the amount of damages or injury done by the injury of said sod or turf; and, in estimating this damage, you should be governed by the difference of the value in the plaintiff's land immediately before and immediately after the injury, if any, done to such turf or sod." The proposition under the assignment which raises this objection is that, "there being no allegation in the petition to admit proof of injury to the land, and no proof, were there such an allegation in the petition, that it was depreciated in value, the charge should not have been given." The substance of the allegation was that there was a good turf, well and thickly set; that the fire parched the turf, roots, and sod of the grass on the land so as to greatly injure and damage the same; that on...