Kellar v. Sproat
| Decision Date | 24 March 1922 |
| Citation | 35 Idaho 273,205 P. 894 |
| Parties | JOHN B. KELLAR, Respondent, v. HUGH SPROAT and THE MCMILLAN SHEEP COMPANY, LTD., Appellants |
| Court | Idaho Supreme Court |
PLEADING AND PRACTICE-DAMAGES-EVIDENCE.
1. A defective allegation of a good cause of action is sufficient to support a judgment in the absence of a demurrer directed to the defective portion thereof.
2. In an action for damages sustained by reason of the destruction of herbage, grass and pasturage upon plaintiff's lands the measure of damages is the value of the crops at the time of their destruction. Evidence of facts or circumstances which disclose the uses for which the crops would have been most profitable, and tending to show their value, is properly admissible.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.
Action for damages caused by trespass of sheep. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs to respondent.
Elliott & Healy, for Appellants.
The true measure of damages for the destruction of growing crops is the value of the crop at the time of its injury or destruction. (Risse v. Collins, 12 Idaho 689, 87 P 1006.)
The evidence offered in proof of the second cause of action was such as to afford a jury no more than an opportunity to guess as to the amount of damage for which the defendants were responsible, if any. (Smith v. Highland Livestock & Land Co., 34 Idaho 321, 200 P. 679.)
Harry L. Fisher, for Respondent.
"A jury selected from the county or community where the loss was suffered, after hearing the evidence as to the nature and condition of the crops and the extent of the injury, will seldom go far wrong in their estimate of the real injury done." (Risse v. Collins, 12 Idaho 689, 87 P. 1006.)
Under the above rule the plaintiff offered to show the cost of near-by pasture. Appellants objected to all this class of competent evidence and succeeded in having it excluded.
This action was brought by respondent to recover damages from appellants upon two causes of action. The verdict of the jury on the first cause of action was in favor of appellants, and it is not involved in this appeal. The second cause of action is based upon the claim that vegetation, pasturage and grasses on lands belonging to or in possession of respondent were injured and destroyed by the trespass of sheep of appellants during the season of 1918. Upon the second cause of action, the jury returned a verdict for respondent in the amount of $ 115. The appeal is from the judgment in favor of respondent for this amount.
It is first contended by appellants that the court erred in admitting evidence of trespass upon or damage to land not alleged in the complaint to have been owned by respondent or in his possession at the time of the alleged trespass. This objection of appellants relates to the E. 1/2 NE. 1/4 of Sec. 26, Tp. 2 N., R. 3 E., B. M., Ada county. The complaint alleges that respondent was the owner and in possession of certain described lands, not including the above mentioned tract. In a paragraph following the description thus given respondent alleges that appellants " It appears that the evidence of the trespass of the sheep, so far as the eighty acres in question are concerned, was confined to the portion thereof last above described.
The foregoing is a defective allegation of ownership and possession, but it is sufficient to support the judgment. (Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602.) The demurrer to the complaint did not allege that it was unintelligible or uncertain as to the ownership or right to possession of the portion of the eighty acres above referred to.
It is next contended that the court erred in the admission of evidence offered for the purpose of proving damage alleged to have been done by appellants' sheep. This specification is too general to call for consideration. From the brief, however, it would appear that the evidence objected to consisted of testimony to the effect that respondent was permitted to show the number of head of stock he owned at the time, and that he was compelled to herd his cattle during the season on account of the destruction of the grass. It is claimed also that respondent was permitted to give his opinion as to the value of the pasturage to him during the season of 1918. It was not error to permit respondent to show the number of head of stock he owned, or that he was compelled to herd his cattle during the season on account of the destruction of his grass. (Boggs v. Seawell, ante, p. 132, 205 P. 262; Hanson v. Seawell, ante, p. 92, 204 P. 660.)
As to the evidence of value objected to, the record is as follows:
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Klam v. Koppel
... ... ( Garrett vs ... Neitzel, 48 Idaho 727, at 731, 285 P. 472; Rankin ... vs. Caldwell, 15 Idaho 625, 99 P. 108; Kellar vs ... Sproat, 35 Idaho 273, 205 P. 894.) ... Exemplary ... or punitive damages may be allowed where the injury ... complained of is ... ...
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Thibadeau v. Clarinda Copper Mining Co.
...urged, there was no error in permitting respondent to testify. Evidence as to value is generally required to be given by experts (Kellar v. Sproat, supra), and not acquainted with land or its value is not competent to testify as to value. (Idaho Farm Dev. Co. v. Brackett, 44 Idaho 272, 257 ......
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...for Appellant. A nonexpert is not competent to testify as to values. (Joyce Bros. v. Stanfield, 33 Idaho 68, 189 P. 1104; Kellar v. Sproat, 35 Idaho 273, 205 P. 894; Thibadeau v. Clarinda Copper Min. Co., 47 Idaho 272 P. 254.) Before a witness is qualified to give competent evidence as to t......
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...testimony of the owner of property as to its value is competent evidence. See, Rankin v. Caldwell, 15 Idaho 625, 99 P. 108; Kellar v. Sproat, 35 Idaho 273, 205 P. 894; Thibadeau v. Clarinda Copper Mining Co., 47 Idaho 119, 272 P. 254; Beech v. American Surety Co., 56 Idaho 159, 51 P.2d 213.......