Lessman v. Anschustigui

Decision Date28 April 1923
Citation215 P. 460,37 Idaho 127
PartiesJOE LESSMAN, Respondent, v. GREGORIO ANSCHUSTIGUI, Appellant
CourtIdaho Supreme Court

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.

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 Idaho 630, 107 P. 60.)

The measure of damages in two-mile limit cases is the actual damages sustained by the plaintiff. (Chandler v. Little, 30 Idaho 119, 163 P. 299; Smith v. Benson, 32 Idaho 99, 178 P. 480; Roseborough v. Whittington, 15 Idaho 100, 96 P. 437.)

GIVENS, Commissioner. Budge, C. J., and McCarthy, Dunn and William A. Lee, JJ., concur.

OPINION

GIVENS, Commissioner.

-- Plaintiff, respondent herein, sued defendant, appellant, under the two-mile limit statute. Defendant introduced no evidence, and the jury returned a verdict in favour of respondent for $ 750.

Appellant makes several assignments of error, which may be properly considered in the following groups: First, over-ruling appellant's motion for a change in the place of trial; second, that the trial court erred in allowing the defendant to be called for cross-examination under C. S., sec. 8035, without a proper showing made, and before the plaintiff had made a prima facie case; third, that the court erred in allowing respondent to amend his complaint as to the dates of the trespass and to introduce certain evidence with regard to the purchase and price of hay, as bearing on the measure of damages; fourth, the admission of evidence which appellant claims shows special damages, the same not having been pleaded; fifth, failure of the court to instruct the jury as to the apportionment of the damages between the appellant and others who herded sheep upon the land in question; and last, the insufficiency of the evidence to support the verdict and the refusal of the court to grant a motion for non suit and for a new trial.

The granting of a change of venue is within the discretion of the trial court, and in the absence of an abuse of such discretion, will not be disturbed. (Gibbert v. Washington Water Power Co., 19 Idaho 637, 115 P. 924.) The showing in the case at bar clearly falls within the above rule.

Under C. S., sec. 8035, the opposing party may be called for cross-examination under the statute as to those matters not readily provable in any other way, and it is not a condition precedent thereto that the party so calling the opposite party for examination shall have made out a prima facie case. The time when the opposing party may be called and the extent of the examination, within the limits stated in Boeck v. Boeck, 29 Idaho 639, 161 P. 576, and the foundation necessary to show that the matters inquired of may not be otherwise readily established are matters within the discretion of the trial court, which in the absence of abuse thereof, will not be disturbed.

No new cause of action was introduced by plaintiff's amendment of his complaint, and no prejudice to defendant is shown to have been caused thereby, the complaint being only amended to conform to the proof.

Respondent introduced evidence as to extra hay secured to take the place of the grass destroyed by appellant's sheep, the general market price of hay and his necessities in regard thereto. Boggs v. Seawell, 35 Idaho 132, 205 P. 262, was a case of actual trespass not brought under the two-miles limit law, and the measure of damages therein set forth is not applicable to a case under the two-mile limit statute.

"The cause of damage for which a plaintiff may recover in these cases is widely different where the trespass is upon the plaintiff's lands from that where the trespass has been committed not upon his lands, but upon public unappropriated lands within two miles of his dwelling-house. Since there was not evidence in this case either establishing or tending to establish a trespass upon public unappropriated lands within the two-miles limit, it is unnecessary for us to consider or pass upon the elements of damage or measure thereof in such case or the modes of proof to be adopted." (Risse v. Collins, 12 Idaho 689, at 696, 87 P. 1006, 1008.)

The price of hay and the amount necessarily purchased were considered proper elements in assessing damages in an action of this...

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