Lessman v. Anschustigui

• Court: United States State Supreme Court of Idaho
• Writing for the Court: GIVENS, Commissioner Per Curiam.
• Citation: 215 P. 460,37 Idaho 127
• Parties: JOE LESSMAN, Respondent, v. GREGORIO ANSCHUSTIGUI, Appellant
• Decision Date: 28 April 1923

215 P. 460

37 Idaho 127

JOE LESSMAN, Respondent,
v.
GREGORIO ANSCHUSTIGUI, Appellant

Supreme Court of Idaho

April 28, 1923

CHANGE OF VENUE-CROSS-EXAMINATION OF OPPOSING PARTY-AMENDMENT OF PLEADING-DAMAGES UNDER TWO-MILE LIMIT STATUTE-PLEADING OF SPECIAL DAMAGES-INSTRUCTIONS-SUFFICIENCY OF THE EVIDENCE-REDUCTION OF VERDICT.

1. Granting or refusing a change of venue is largely discretionary with the court, and in the absence of abuse, his action will not be disturbed.

[37 Idaho 128]

2. Making a prima facie case is not a condition precedent to calling the opposing party for cross-examination under C. S., sec. 8035.

3. Amendment of complaint to conform to the proof where no prejudice is shown is not error.

4. Evidence of the market price of hay, when a necessary substitute for grass destroyed by trespass under the two-mile limit statute, admissible to prove damage.

5. Special damages must be pleaded before evidence thereof is admissible.

6. If a party desires other instructions than those given by the court, the same must be requested, or no error can be predicated thereon.

7. The evidence in this case examined and held to be sufficient to sustain the verdict for $500.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Charles F. Reddoch, Judge.

Action for damages for trespass under the two-mile limit statute. From judgment for plaintiff, defendant appeals. Affirmed in part and remanded with instructions.

P.E. Canvaney, for Appellant.

It was abuse of discretion on the part of the trial court to deny appellant a change of place of trial. (Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Richardson v. Augustine, 5 Okla. 667, 49 P. 930; Omaha So. Ry. Co. v. Todd, 39 Neb. 818, 58 N.W. 289; Gandy v. Bissel's Estate, 81 Neb. 102, 115 N.W. 571; State ex rel. Wyman v. Superior Court, 40 Wash. 443, 82 P. 875; Buck v. Eureka, 97 Cal. 135, 31 P. 845; Packwood v. State, 24 Ore. 261, 33 P. 674; Dowling v. Allen, 88 Mo. 293; Cyra v. Stewart, 79 Wis. 72, 48 N.W. 50; Little v. Wyoming County, 214 Pa. 596, 63 A. 1039.)

The right to a change of venue is a right belonging to either party to the action, and the word "may" as used in the section means "must"; when the facts and circumstances which make it appear that a fair and impartial trial cannot be had are shown to the court, the judge should award the change of venue. (In re Brown, 2 Okla. 590, 39 P. 469; Kansas P. R. Co. v. Reynolds, 8 Kan. 623; Jones v. American Cent. Ins. Co., 83 Kan. 44, 109 P. 1077; Griffin v. Leslie, 20 Md. 15; Stock well v. Township Board, 22 Mich. 341.)

The appellant should not have been called for cross-examination until the respondent in the lower court had at least made out a prima facie case. (Darry v. Cox, 28 Idaho 518, 155 P. 660; Boeck v. Boeck, 29 Idaho 639, 161 P. 576.)

It was error for the court to allow the amendment to the pleadings in this action at the time the same was allowed. (Hallett v. Larcom, 5 Idaho 492, 51 P. 108; Dovers v. Goux, 5 Cal. 153.)

No showing was made to entitle plaintiff to the amendment. (Snowy Peak M. Co. v. Tamarack etc. Co., 17 Idaho 630, 107 P. 60.)

The court should have instructed the jury that the damages in this case should have been apportioned among the different bands of sheep that had passed over the place. where the trespass is alleged to have been committed. (Smith v. Highland Liverstock & Land Co., 34 Idaho 321, 200 P. 679; Dooley v. Seventeen Thousand Five Hundred Head of Sheep, 4 Cal. Unrep. 479, 35 P. 1011; Partenheimer v. Van Order, 20 Barb. (N. Y.) 479; Pacific Live Stock Co. v. Murray, 45 Ore. 103, 76 P. 1079; Powers v. Kindt, 13 Kan. 74; 2 Waterman on Trespass, sec. 871; 3 C. J. 145.)

The verdict is excessive and is not supported by the evidence. (Taylor v. Hall, 8 Idaho 757, 71 P. 116; Harker v. Seawell, 35, Idaho 457, 206 P. 812.)

Where there is a verdict without substantial evidence to support it the same will be set aside. (Studebaker Bros. v. Harbert, 35 Idaho 490, 207 P. 587; Quayle v. Ream, 15 Idaho 666, 99 P. 707; Continental Life Ins. Co. v. Yung, 113 Ind. 159, 15 N.E. 220; Quintion v. Cutlip, 1 Okla. 302, 32 P. 269; Abbott, Civ. J. Trials, 3d ed., 748.)

In an action of this character before evidence of special damages is admissible special damages should have been pleaded. (Kirk v. Madaretia, 32 Idaho 403, 185 P. 225.)

The only damages, if any, that could be recovered in an action of this kind under the pleading would be the value of the grass growing on respondent's land at the time of the trespass. (Keller v. Sproat, 35 Idaho 273, 205 P. 894; Boggs v. Seawell, 35 Idaho 132, 205 P. 262; Risse v. Collins, 12 Idaho 689, 87 P. 1006.)

Wm. Healy and Wright A. Stacy, for Respondent.

As to whether or not a change of venue shall be granted is wholly within the discretion of the trial court. Unless the trial court acts in a manifestly arbitrary manner in such a matter his discretion will not be disturbed on appeal. (Gibbert v. Washington Water Power Co., 19 Idaho 637, 115 P. 924.)

Under the decision of Boeck v. Boeck, 29 Idaho 639, 161 P. 576, it does not appear that the court erred in allowing the respondent to cross-examined the adverse party.

Had the appellant wanted further or more explicit instructions, he should have asked for them, which fact is not shown by the record. (Joyce Bros v. Stanfield, 33 Idaho 68, 189 P. 1104; C. S., secs. 6846-6849; Carbaugh v. White Line Bus Co., 51 Cal.App. 1, 195 P. 1066.)

The trial court is allowed great latitude and liberality in amendment of pleadings, and unless the allowance of an amendment denies the appellant some substantial right, it is not error. (Mantle v. Jack Waite Mining Co., 24 Idaho 613, 135 P. 854, 136 P. 1130; Snowy Peak Minning Co. v. Tamarack & Chesapeake Mining Co., 17...