Hunt v. St. Louis, Iron Mountain & Southern Railroad Company
| Decision Date | 28 May 1907 |
| Citation | 103 S.W. 133,126 Mo.App. 261 |
| Parties | HUNT et al., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Chas. A. Killian Judge.
AFFIRMED.
Judgment affirmed.
Martin L. Clardy and James F. Green for appellant.
(1) Plaintiffs' action was one for the destruction of immature crops; the court erred in admitting testimony as to the value of a matured crop. The measure of damages is the value of the crops at the time they were destroyed. Hosli v. Yokel, 57 Mo.App. 622; 3 Joyce on Damages, sec. 2126; 1 Sutherland on Damages, 103; Gresham v. Taylor, 51 Ala. 505; Irvin v. Holde, 176 Pa. St. 594; Land Co. v. Hartman, 5 Col. App. 150; Lampley v Railroad, 63 S. Car. 462; Yarborough v Railroad, 56 Ark. 612; Lomland v. Railroad, 35 Minn. 412; Emmett v. Railroad, 53 Neb. 237; Young v. Railroad, 13 Am. & Eng. R. R. Cases, 548; Smith v. Railroad, 11 S.W. 123. (2) Plaintiffs' instruction on the measure of damages, is in direct conflict with defendant's first instruction. It is error to give conflicting instructions which furnish no guide to the jury. Roe v. Bank, 167 Mo. 427; Thumel v. Duke, 82 Mo.App. 55; Frank v. Railroad, 57 Mo.App. 186; Deweese v. Mining Co., 54 Mo.App. 488; Baker v. Railroad, 122 Mo. 596; State v. Cable, 117 Mo. 386; Stevenson v. Handcock, 72 Mo. 612; Redpath v. Railroad, 42 Mo.App. 112; Stone v. Hunt, 94 Mo. 475; Frederick v. Allgaier, 88 Mo. 603.
R. C. Tucker and W. L. Hensley for respondents.
(1) The instructions given as a whole properly and fairly declare the law applicable to the case. Where a series of instructions, when taken together, contain a complete exposition of the law the cause will not be reversed even though the instructions when taken separately may be incomplete and open to criticism. Hughes v. Railroad, 127 Mo. 447, 453; Owens v. Railroad, 95 Mo. 169, 181; Swafford v. Stratt, 93 Mo.App. 631, 637. (2) If the instruction given at the instance of plaintiff was too general in its terms and if appellant was dissatisfied therewith it was his duty to ask for more explicit instructions and if he did not he cannot complain. Bank v. Ragsdale, 171 Mo. 168; Sherwood v. Railway, 132 Mo. 339; Lane v. Railway, 132 Mo. 4; Ruth v. Railway, 70 Mo.App. 190. (3) The objection of the appellant that the testimony offered by respondent as to the value of the corn destroyed was incompetent is untenable. Land & Town Co. v. Neale, 3 L. R. A. 83.
The purpose of this action is to recover for the loss of more than half of twenty 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 three hundred 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 forty-five and fifty bushels of corn to the acre on the part not rooted over by hogs and thought, but for the devastation, eight hundred bushels would have been raised on the entire tract. This evidence showed a loss of five hundred 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 fifty-five cents a bushel and that it would have cost seven and one-half cents a bushel to gather the crop and take it to market. When the hogs did the damage the corn was from one and one-half to two inches high; just coming up well. No damage was done after June 10, 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. 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 twenty 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 testimony was reasonably appropriate for the purpose. Such testimony has been rejected occasionally because of its supposed tendency to induce an award of speculative damages. In our opinion knowledge of the market value of a crop when mature and what the owner could have sold it for, has much to do with its value at any stage of growth. Such facts are to be taken in connection with evidence of the cost of cultivating, gathering and marketing the crop and other items of expense an owner would incur in order to raise and sell his grain. A growing crop of corn is certainly worth more to the owner in the spring of a year when the mature crop brings a high price than in the spring of a year when it brings a low one, and such price ought to be taken into consideration in determining the value of the growing crop, if the action is not instituted too soon. The expression of text-writers on the law of damages on this point are vague, as will be seen by reading the passages cited from them supra. Sutherland says a considerable latitude of inquiry is properly open in ascertaining the value of a crop; citing the case of Lommeland v. Railroad, 35 Minn. 412, in support of the proposition that the capacity of the land to produce, the average yield of similar crops in the neighborhood, the market value of the crop injured within reasonable limits of...
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