Hunt v. St. Louis, I. M. & S. R. Co.

• Decision Date: 28 May 1907
• Citation: 126 Mo. App. 261,103 S.W. 133
• Court: Missouri Court of Appeals
• Parties: HUNT et al. v. ST. LOUIS, I. M. & S. R. CO.

103 S.W. 133

126 Mo. A. 261

HUNT et al. v. ST. LOUIS, I. M. & S. R. CO.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

Rehearing Denied June 11, 1907.

1. DAMAGES — DESTRUCTION OF GROWING CROP.

The measure of damages for destruction of a growing crop, too late to plant again for the season, is the value of the crop standing in the field at the time it was destroyed.

2. SAME — EVIDENCE.

To show the damage from destruction of part of a field of growing corn, evidence of the amount raised on the rest of the field, the field being all of the same quality and subject to the same conditions, the market value of the corn in the fall and the cost of harvesting and marketing it is admissible.

3. TRIAL — INSTRUCTIONS — CONFLICTING INSTRUCTIONS.

An instruction, in an action for the destruction by hogs of a growing crop, which, after stating certain facts to be found to authorize a verdict for plaintiffs, tells the jury that any finding for plaintiffs shall be whatever sum they were damaged by the hogs, not exceeding the sum asked in the petition, is not in conflict with, but is to be read with, one stating the measure of damages as the value of the crop where and when it was destroyed.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by Thomas Hunt and others against the St. Louis, Iron Mountain & Southern Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

M. L. Clardy and J. F. Green, for appellant. R. C. Tucker and W. L. Hensley, for respondents.

GOODE, J.

The purpose of this action is to recover for the loss of more than half of 20 acres of growing corn, alleged to have been caused by the incursions of hogs into plaintiffs' field through a defective fence along the right of way of defendant's railroad. There is a conflict in the evidence as to whether the hogs entered the field because of a defective fence maintained by the defendant, or because plaintiffs' own fence was in bad repair. This matter was left to the jury on substantial evidence to support the averments of the petition, and was determined in plaintiffs' favor. The undamaged part of the field yielded about 300 bushels of corn, but the replanted part, on which the first crop was destroyed, yielded nothing, on account of the replanting being too late. Testimony was received from one of the plaintiffs as to how much corn could have been raised on the land but for the destruction wrought by the hogs, taking into consideration what was actually produced and the character of the season. In answer the witness said he gathered between 45 and 50-bushels of corn to the acre on the part not rooted over by hogs, and thought, but for the devastation, 800 bushels would have been raised on the entire tract. This evidence showed a loss of 500 bushels of corn in consequence of the damage wrought by hogs. The witness was also permitted to testify what the market price of corn was that fall, and what would have been the cost of gathering the crop. He said the market price was 55 cents a bushel, and that it would have cost 7½ cents a bushel to gather the crop and take it to market. When the hogs did the damage the corn was from 1½ to 2 inches high; just coming up well. No damage was done after June 10th; the fence having been repaired. The foregoing testimony was received for the purpose of assisting the jury to form an opinion as to what the value of the corn was in the field at the time it was destroyed, which was ruled to be the measure of plaintiffs' damages, and so declared in an instruction given at the instance of defendant. This instruction advised the jury that, if they found the issues for plaintiffs, they would allow them damages in such amount as they found was the value of the crop destroyed, standing in the field at the time it was destroyed. This was the only instruction given on the measure of damages, and, we think, stated the true measure. The question is what was the value of the destroyed corn at the time and place when the trespass happened? This being ascertained, the damages were to be assessed accordingly.

A few decisions prescribe other measures of the damages suffered from the destruction of a growing crop, but the great weight of authority is in favor of the rule stated. 8 Am. & Eng. Ency. Law (3d Ed.) 330; 13 Cyc. 208; 4 Sutherland, Damages, 1023; 3 Sedgwick, Damages (8th Ed.) § 937; 3 Joyce, Damages, 2126; Hosli v. Yokel, 57 Mo. App. 622; Chicago, etc., R. R. v. Emmert, 53 Neb. 237 243, 73 N. W. 540, 68 Am. St. Rep. 602; Irwin v. Nolde, 176 Pa. 594, 600, 35 Atl. 217, 35 L. R. A. 415; Houston, etc., R. R. v. Adams, 63 Tex. 200. Besides the authorities just cited, those cited infra, on the two sides of the question of whether the testimony complained of was competent, agree that the measure of damages is the actual value of the growing crop in its condition when and where the loss occurred. A disagreement exists among the decisions as to what facts are available to enlighten the jury as to the actual value, for an immature crop usually has no market value to be used as a criterion of damages. Hesitation has been shown by some courts to admit testimony of the probable yield and market value of the crop had it matured, from a belief that such facts are conjectural, and apt to misguide, instead of guide, the jury. In the present case, as part of the corn was not destroyed, but grew to maturity, and as there does not appear to have been any difference in the quality of the land over the entire 20 acres, and as all of it was subject to the same kind of weather and crop conditions generally, we have nearly certain proof of what the destroyed crop would have yielded. By these facts the inquiry is ranged in the practical, instead of the speculative, sphere. Testimony about the market price of corn that autumn, and what it would have cost to gather and market plaintiffs' crop, was let in as tending to show the value of the growing crop when uprooted, and we must determine whether this...