Kingsbury v. Bacon

• Court: United States State Supreme Court of Idaho
• Writing for the Court: WM. E. LEE, J.
• Citation: 224 P. 438,38 Idaho 701
• Decision Date: 10 March 1924
• Parties: DANIEL KINGSBURY, Respondent, v. T. C. BACON, Appellant

224 P. 438

38 Idaho 701

DANIEL KINGSBURY, Respondent,
v.
T. C. BACON, Appellant

Supreme Court of Idaho

March 10, 1924

DAMAGES-GROWING CROPS-DESTRUCTION OF-TRESPASS-MEASURE OF DAMAGES-VALUE OF CROP AT TIME OF DESTRUCTION-HOW DETERMINED-EVIDENCE.

1. The measure of damages for the destruction of a growing crop is the value of the crop at the time it was destroyed.

2. The value of a growing crop of wheat at the time of its destruction must be determined from evidence of the probable yield and the market value of the crop at maturity, less the probable cost of placing the growing crop in a marketable condition.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action for damages for destruction of growing crops. Judgment for plaintiff. Reversed.

Judgment reversed. Costs to appellant.

J. G. Hedrick and Frank T. Wyman, for Appellant.

Ownership of sheep, as in this case, cannot be proved by what a herder says, and the admission of such testimony was clearly erroneous. (Cox v. Crane Creek Sheep Co., 34 Idaho 327, 200 P. 678.)

The measure of damages would be the value of the crop at the time it was destroyed, and there was no competent evidence introduced by the plaintiff to show its value at that time, and no evidence upon which a jury could arrive at a just verdict. (Risse v. Collins, 12 Idaho 689, 87 P. 1006; Kirk v. Madereita, 32 Idaho 406, 184 P. 225; Hall v. Brown, 102 Ore. 389, 202 P. 719; also notations to the cases reported in 27 L. R. A., N. S., 168; 37 L. R. A., N. S., 976.)

Leo M. Bresnahan, for Respondent.

There is sufficient competent evidence to prove the value of the crops destroyed and the amount of damages was entirely a question of fact to be determined by the jury. (Kendall v. McIntire Inc. Co., 59 Utah 228, 203 P. 653; Naylor v. Floor, 51 Utah 382, 170 P. 971; Kirk v. Madereita, 32 Idaho 406, 184 P. 225; Sutherland on Damages, 4th ed., sec. 445.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

[38 Idaho 702] WM. E. LEE, J.

--This is an appeal from a judgment of the district court of Blaine county. Respondent's action was based upon the alleged destruction of 11 acres of growing wheat and 129 acres of grass, in the summer of 1917, by sheep alleged to belong to appellant. The cause was tried, and the jury returned a verdict of $ 300 for respondent. From the judgment entered thereon, this appeal is prosecuted.

Appellant's specifications of error may be considered under two heads: first, that there is no competent evidence to prove that he was the owner of the trespassing sheep; and, second, that there is no competent evidence to establish the value of the wheat alleged to have been destroyed.

As to the sufficiency of the evidence establishing the ownership of the sheep, we are of the opinion that it is sufficient. It is true that the court committed error in permitting respondent and his son to testify to conversations they had with a herder in charge of the sheep. (Hanson v. Seawell, 35 Idaho 92, 204 P. 660; Cox v....