Kressly v. Theberge, 9929
| Decision Date | 18 December 1961 |
| Docket Number | No. 9929,9929 |
| Citation | 112 N.W.2d 232,79 S.D. 386 |
| Parties | Lloyd T. KRESSLY, Plaintiff and Respondent, v. Dr. L. L. THEBERGE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
William M. Rensch, Rapid City, for defendant and appellant.
Whiting, Lynn, Freiberg & Shultz, and associate Curtis Ireland, Rapid City, for plaintiff and respondent.
The partis own contiguous tracts of land in Dark Canyon along Rapid Creek west of Rapid City, Pennington County. The plaintiff Lloyd T. Kressly testified he purchased, improved and holds his property as his retirement home because it is a beautiful canyon with trees, shrubbery and privacy and provides a place for his grandchildren to visit him and fish. The defendant Dr. L. L. Theberge bulldozed a road across part of the plaintiff's land and in so doing removed and injured trees and underbrush, disturbed the soil and landscape, and pushed debris into the creek.
Taking the issues as expressed without exception in the trial court's instructions, Counts v. Kary, 67 S.D. 607, 297 N.W. 442, plaintiff's first cause of action against the defendant seeks damages of $1,500 for wrongful and unlawful entry onto plaintiff's property and for defacing and lessening its value by construction of the road thereon. In his second cause of action plaintiff seeks additional damage of $500 for the destruction and injury to the trees and underbrush, and that such damages be trebled to $1,500 because the defendant's trespass was wrongful and wilful.
The defendant admitted he caused a bulldozer to construct a road on plaintiff's property but claims it was done with plaintiff's consent, and that it benefited rather than damaged his property. As to the trees and underbrush, defendant denied any injury or destruction thereto, but alleged if any such damage was done it was casual and done under the belief he had plaintiff's consent to do so. The defendant denied any liability to plaintiff.
At the conclusion of all testimony the defendant moved for a directed verdict stating, among other reasons, that the evidence failed to show any damage upon which the jury could base a verdict. His motion was denied. The jury awarded plaintiff a verdict for $2,000. The defendant appeals and assigns as error the denial of such motion, the court's verdict instruction and refusal to grant his motions for judgment n. o. v. and for a new trial. No evidence was received as to the before or after market value of respondent's land nor of any independent value of the damaged trees and underbrush. Other than testimony and photographs showing the extent of the bulldozing and the appearance of the property involved, the record is without...
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...there to be proof of a rational basis for measuring loss, without allowing a jury to speculate. Id. (quoting Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232, 233 (1961)). [¶ 32.] The trial court directly addressed the question of speculative damages in Jury Instructions No. 4 and No. 4. An......
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Weekley v. Prostrollo
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Gross v. Connecticut Mut. Life Ins. Co.
...Co. v. Ellis, 111 Tex. 15, 18, 224 S.W. 471, 471 (1920) (bracketed material supplied). We note the language in Kressly v. Theberge, 79 S.D. 386, 388-89, 112 N.W.2d 232, 233 (1961), quoting Schankin v. Buskirk, 354 Mich. 490, 497, 93 N.W.2d 293, 297 "The law does not require impossibilities;......
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PETER KIEWIT SONS'CO. v. Summit Construction Co.
...be shown by the evidence which afford a basis for measuring the loss of the plaintiff with reasonable certainty." Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232, 233 (1961). In Frank Sullivan Company v. Midwest Sheet Metal Works, 335 F.2d 33 (8th Cir. 1964) the Eighth Circuit applied Minn......