Joyce Brothers v. Stanfield

• Citation: 33 Idaho 68,189 P. 1104
• Parties: JOYCE BROTHERS, a Copartnership, Respondent, v. ROBERT N. STANFIELD, Appellant
• Decision Date: 04 May 1920
• Court: Idaho Supreme Court

189 P. 1104

33 Idaho 68

JOYCE BROTHERS, a Copartnership, Respondent, v. ROBERT N. STANFIELD, Appellant

Supreme Court of Idaho

May 4, 1920

DAMAGES-PLEADING AND PRACTICE-EVIDENCE OF VALUE-EXPERT TESTIMONY-HARMLESS ERROR-INSTRUCTIONS.

1. In an action to recover damage for the destruction of vegetation growing on plaintiff's land, where it is alleged in the complaint and denied in the answer that the premises were of great value for pasturage purposes, it is competent to show that plaintiff had theretofore used, and intended thereafter to use, the land as a pasture.

2. In an action to recover damage for destruction of pasturage which did not have a market value, testimony of witnesses skilled and experienced in raising and feeding livestock in the community where it was destroyed, as to its value, is competent.

3. It is the duty of the judge, and not of the jury, to determine the qualifications of a witness to give expert testimony.

4. An error by the trial judge, which could not have resulted in the disadvantage of appellant, cannot be made the basis of the reversal of a judgment.

5. Error cannot be predicated on failure to instruct the jury as to the measure of damages, in the absence of a request for such instruction.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Carl A. Davis, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Ed. R Coulter, for Appellant, cites no authorities on points decided.

Elliott & Healy, for Respondent.

In proving values in the ordinary case, it is not necessary to qualify the witness as an expert. (McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629; Rankin v. Caldwell, 15 Idaho 625, 99 P. 108.)

It is proper to permit a witness to give his estimate as to values after having stated his grounds for the estimate. (Jones on Evidence, 2d ed., par. 363; Roseborough v. Whittington, 15 Idaho 100, 96 P. 437.)

A party desiring specific instructions must request that they be given. (Barter v. Stewart Mining Co., 24 Idaho 540, 135 P. 68; Nichol v. Laumeister, 102 Cal. 658, 36 P. 925.)

MORGAN, C. J. Rice and Budge, JJ., concur.

OPINION

MORGAN, C. J.

This is an appeal from a judgment based on a verdict awarding damages because of trespass by appellant's sheep on inclosed land of respondent and the destruction by them of wild vegetation growing thereon which was valuable for pasturage purposes.

Appellant assigns as error the action of the court overruling his objection to a question propounded to a witness for respondent as to the use to which the latter had put or intended to put the land. The objection questioned the materiality of the fact sought to be shown because no foundation had been laid in the pleadings for the recovery of special damages.

The question was competent and the fact thereby sought to be brought out was material to establish the following allegation in the complaint which was denied in the answer:

"That said premises are inclosed by a fence, and the lands comprising the same are of great value to plaintiffs for pasturage purposes, nutritious grasses, vegetation and undergrowth of great value growing thereon naturally and without cultivation."

The court overruled appellant's objection to questions by which it was sought to show the value of the vegetation destroyed. It appears the witnesses did not know of like property having been sold in that vicinity, and the questions called for answers based on their knowledge of values acquired as farmers and stock-raisers of long experience in that part of the...