Landsman v. Thompson

• Decision Date: 24 January 1890
• Citation: 22 P. 1148,9 Mont. 182
• Parties: LANDSMAN et al. v. THOMPSON.
• Court: Montana Supreme Court

22 P. 1148

9 Mont. 182

LANDSMAN et al. v. THOMPSON.

Supreme Court of Montana

January 24, 1890

Appeal from district court, Lewis and Clarke county; N.W. McCONNELL Judge.

McConnell Carter & Clayberg, for appellant.

Wade Toole & Wallace and Turner & Burleigh, for respondents.

DE WITT, J.

The complaint alleges that the plaintiffs were in possession of a building of defendant, which they were occupying as a store in which they had a stock of goods of the value of $30,000. They were tenants of defendant under a written lease. That, during said occupation, under the lease, defendant undertook some extensive repairs upon the building, involving a change in the front and the roof. It was, however, with plaintiffs' consent that the repairs were made. That in the prosecution of the repairs a portion of the roof and front were removed. That this was done so carelessly that, by reason of a severe storm of rain then occurring, the stock of goods were damaged to the amount of $15,000. The answer denies the negligence, and alleges due care in the prosecution of the repairs, and that there was no more damage to plaintiffs than was incident to the difficulties of the work; that the damage from the storm mentioned was not as much as $100. The case was tried by a jury, and a verdict rendered for the plaintiffs for $100. The plaintiffs gave notice of motion for a new trial, specifying several grounds therefor. On the hearing of the motion, however, it appears that the parties agreed that the instructions of the court were correct, and that there was no error of law in any particular. It was further agreed that the only question that should arise was the sufficiency of the damages, and that all other grounds for the motion should be, and were, specifically abandoned. Under these conditions, the assignment of error on which the motion was heard is as follows: "The verdict is unsustained by the evidence in this, to-wit: That the jury have found that the plaintiffs were entitled to recover by reason of the negligence of the defendant, and the evidence being clear and unquestioned that the damages of the plaintiffs greatly exceeded the sum found, to-wit, one hundred dollars, and that there was no evidence to justify the finding of one hundred dollars damages only by the jury; because, if the plaintiffs were entitled to any damages at all, the strong preponderance of the evidence clearly shows that they were entitled to damages greatly in excess of the sum found by the jury." The motion for new trial was heard and granted by a judge other than the one before whom the case was tried. The defendant appeals from the order granting the motion.

It becomes necessary to examine the evidence adduced on the trial on the subject of damages. It appears that the value of the stock of goods was from $25,000 to $30,000 before the damage occurred. The majority of the witnesses, in estimating the damages, figure by a percentage of the value. The plaintiffs, Landsman & Cohen, describe the catastrophe in detail. They each testify as to a long experience in the handling and dealing in such stocks. They were on the premises early in the morning of the day of the storm, the rain having come into the store in the night. They place the damage at from 50 to 75 per cent. of the value. Then follows the testimony of 11 witnesses on the part of the plaintiffs whom it is unnecessary to name. They were all persons engaged in, or having been engaged in, the business of handling stocks of goods similar to the stock of plaintiffs, for periods of time ranging from 3 to 34 years, with an average of about 9 years. They respectively figure the damage to the goods from a minimum of 50 per cent. to a maximum of 75 per cent. of the value, with an average of at least 60 per cent. These witnesses were on the premises in the morning after the night of the disaster. None of them went through the whole stock, but they remained there from 15 minutes to 3 hours, and took a general survey of the situation. On the question of damages the testimony of the defendant was as follows: The defendant in person testified: "Mr. Landsman asked me to go over to the store. Told me he had a big flood of rain over there, or something of that kind. I went over there; in fact, I did not expect anything else from the severity of the storm; and he referred to the fact of the damage to his goods, and the rain that had come down all through there, and I looked through the store, of course; and he said to me, 'I want you to get appraisers.' 'Well,' I said, 'I am sorry, Mr. Landsman, that this occurred, but it is one of those unaccountable things that I cannot help.' Then I told him I would not make any charge for this month's rent, in consideration of the damage that he had sustained. I...