Good v. West Mining Co.

• Decision Date: 03 April 1911
• Citation: 154 Mo. App. 591,136 S.W. 241
• Parties: GOOD v. WEST MINING CO.
• Court: Missouri Court of Appeals

136 S.W. 241

154 Mo. App. 591

GOOD v. WEST MINING CO.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. TRIAL (§ 91)—RECEPTION OF EVIDENCE— OBLIGATIONS.

It is not error to refuse to strike out evidence which has been admitted without objection.

2. APPEAL AND ERROR (§ 1052)—CURE OF ERROR —ADMISSION OF EVIDENCE.

Any error in the admission of evidence of a measure of damages which was too great is cured where the court required a remission from the verdict of more than any possible increase by the error.

3. TRIAL (§ 260)—REQUESTED INSTRUCTIONS —INSTRUCTIONS ELSEWHERE GIVEN.

Requested charges covered by instructions elsewhere given are properly refused.

4. MINES AND MINERALS (§ 125)—INJURIES BY WORKING—TAILINGS AND DÉBRIS—INSTRUCTIONS.

In an action for the destruction of crops and injury to land by the filling up of a ditch by sediment discharged into it from defendant's mill, causing it to overflow and deposit the sediment on plaintiff's lands, defendant introduced evidence that mills of others also discharged refuse into the ditch, and requested a charge that only nominal damages could be recovered if the amount of injury by defendant could not be separated from the injury caused by others contributing to the general result. Held, that the instruction was properly refused, as the burden was on defendant to establish that it was within the rule that one of several merely concurrent, not joint, tort-feasors cannot be held for more than nominal damages unless the injury caused by him is proved, and the evidence offered did not show that the damage caused by each could not be separated from the others.

5. MINES AND MINERALS (§ 124)—INJURIES FROM WORKING—TAILINGS AND DEBRIS— GROUNDS OF ACTION.

Where defendant by discharging refuse from its mill into a ditch caused the ditch to fill up and overflow, so as to deposit the refuse on plaintiff's lands, defendant is liable for the injury so caused, irrespective of the question of negligence.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Martha Good against the West Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. M. Sheppard and Spencer, Grayston & Spencer, for appellant. R. A. Mooneyham, I. N. Threlkeld, and Byron H. Coon, for respondent.

COX, J.

Action for damages alleged to have been caused by defendant while conducting mining operations on higher land, discharging water and sediment called "sludge" from its mine in such a manner that it washed down upon the land owned and leased by plaintiff, and overflowed a ditch running through plaintiff's land, causing permanent injury to part of the land and destruction to crops growing thereon, and on other portions of the land. Verdict for plaintiff for $500. The court required a remittitur of $200. Judgment was entered for $300, and defendant has appealed.

The errors assigned relate to the refusal of the court to strike out certain testimony and the giving and refusing instructions.

The plaintiff was a gardener, and, with other crops, had potatoes, carrots, and tomatoes growing upon the land, which were destroyed by overflow and deposit of "sludge" upon the land. Plaintiff's son in testifying was asked about these crops, and about how many bushels of each were destroyed and the market value. He gave the value of each at $1 per bushel. On cross-examination it was developed that the market value which he had mentioned was the value delivered at Joplin, three miles distant. Counsel for defendant then moved the court to strike out all of this witness' testimony in relation to the market value of these crops, which the court refused to do.

It is now insisted by defendant that the measure of damages was the value of the potatoes, tomatoes, and carrots as they were at the time they were destroyed, and not their value gathered and delivered at Joplin, and contends that the failure of the court to strike out this testimony was reversible error. The court adopted defendant's theory of the law upon this question, and gave the following instruction: "In assessing plaintiff's damages to growing crops, if any, you should consider and determine from the evidence what was the reasonable value of such crops, if any, as you find were destroyed at the time they were destroyed, and allow plaintiff such sum therefor as you find the reasonable value thereof at that time."

If the defendant was unwilling to have the testimony admitted in the form in which it was, he should have objected at the time when the witness was asked to give the market value and required the testimony to have been restricted to the value of the crops standing on the land, but, having admitted the testimony without objection, the court did not commit error in refusing afterward to strike it out.

Furthermore, the plaintiff secured a verdict in this case for $500, and the court required a remittitur of $200, and an examination of the testimony in this case discloses that the value at Joplin of the entire amount of potatoes, tomatoes, and carrots destroyed did not exceed the sum of $55. It is therefore apparent that the remittitur covered more than the amount testified to by the witness. In cases of this character, where testimony may be admitted erroneously, yet if the testimony relates to the question of the amount of damage, and is of such a character that the damages covered by the...