Levi v. Gonzenbach

• Decision Date: 16 December 1930
• Citation: 236 Ky. 586,33 S.W.2d 657
• Parties: LEVI v. GONZENBACH.
• Court: Kentucky Court of Appeals

33 S.W.2d 657

236 Ky. 586

LEVI v. GONZENBACH.

Court of Appeals of Kentucky

December 16, 1930

Appeal from Cirsuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Emanuel Levi against Ernest Gonzenbach. From a judgment for the defendant upon his counterclaim, plaintiff appeals.

Affirmed.

Peter Lee, Tabb, Krieger & Heyburn, of Louisville, for appellant.

J. P Edwards and W. S. Heidenberg, both of Louisville, for appellee.

WILLIS J.

Emanuel Levi sued Ernest Gonzenbach to recover damages for an injury to his property. He alleged that he made a contract with the defendant to prune and spray certain trees, and, instead of doing so, the defendant wrongfully cut and sawed down eleven of the trees, "thereby being guilty of trespass.".

Plaintiff sought to recover $2,200 for the trees, $75 for cleaning away the rubbish and removing the stumps, and $2,500 as punitive damages. By an amended petition the claim for punitive damage was doubled, and it was predicated upon the charge that the trees were destroyed by defendant in wanton disregard of plaintiff's rights.

The defendant admitted that he was employed by plaintiff to prune and spray certain tress, and, in addition thereto, alleged that he was employed to do all things necessary for the care and protection of the fruit trees, including the cutting and sawing of such trees as might be necessary for the care and protection of other trees in plaintiff's orchard. Defendant denied that he wrongfully cut or sawed down any trees, but averred that eleven trees were diseased and blighted so that they constituted a menace to the other trees and had to be cut and removed to prevent the spread of infection. The answer put in issue every claim made by the plaintiff, and justified the action of defendant by the express and implied authority of the plaintiff to deal properly with the conditions he found affecting the trees. He further set up a counterclaim for $100.22 for his services under the contract.

The jury returned a verdict for the defendant, allowing him the full amount of his counterclaim. A motion for a new trial was denied. The plaintiff, feeling aggrieved by the result, has prosecuted an appeal.

It is insisted (1) that plaintiff was entitled to a peremptory instruction in his favor; (2) that the instruction on the measure of damages was incorrect; (3) that it was error to refuse an instruction on punitive damages; (4) that the instruction submitting the counterclaim was erroneous; and (5) that the court erred in its rulings respecting the admission and exclusion of testimony.

1. The argument for a peremptory instruction for plaintiff proceeds upon the assumption that there was no evidence to prove that the contract authorized Gonzenbach, in any event, to cut down any trees. According to the testimony of Mr. Levi, the contract of employment was limited to pruning and spraying, and did not contemplate any cutting down of diseased trees. Indeed, he said he made a point with Mr. Gonzenbach that he wanted no trees cut down at any time. He testified that Mr. Gonzenbach assured him that the orchard, with proper care, proper pruning, and proper spraying, could be made a very good one.

But the testimony of Mr. Gonzenbach was that he pointed out to Mr. Levi certain trees that could be saved by treatment, some that he was doubtful about, and others that probably would have to come down, but he did not then decide finally which trees should come down. He said further that he told Mr. Levi some of the trees would have to be cut, and that later examination would show which ones and how many. He said it was made very clear to him that he had authority to take down such trees as were needed to be taken out. He had no instruction not to cut any trees. When the subject of cutting the trees was under discussion, Mr. Levi said that he did not want to lose any more trees than he had to lose.

It will be seen that a sharp dispute as to the terms of the contract was developed, and it was necessary for the jury to ascertain the truth. The argument for the appellant that the parties understood the contract differently and therefore no meeting of the minds of the contracting parties was shown overlooks the vital fact that the minds of the parties did meet, but the disagreement concerns the proposition upon which they agreed. Mr. Levi says it was agreed one way, while his opponent insists that the agreement was otherwise. Cf. Ill. C. R. Co. v. Curry, 127 Ky. 643, 106 S.W. 294, 32 Ky. Law Rep. 513, and B. & O. S.W. Ry. Co. v. Wood, 130 Ky. 839, 114 S.W. 734.

If the testimony of the defendant was true, he acted according to the authority conferred upon him, and his decision to remove the trees was within his province. On the other hand, if the jury found the contract to be as Mr. Levi contended, the defendant had no right to cut the trees, no matter how badly they may have been diseased, or how necessary that course may have appeared to a man trained in tree culture.

It is a mere truism to say that, when the solution of a problem of such character is involved, it is necessary for the jury to solve it. If the testimony for a party, and the inferences fairly arising from it, tend to support his cause of action or defense, the question must be submitted to the jury. Westchester Fire Ins. Co. v. Crume, 223 Ky. 707, 4 S.W.2d 716; Terrell v. Southern Ry. Co., 225 Ky. 645, 9 S.W.2d 993.

2. It is next insisted that the court erred in defining to the jury the measure of damages to be applied in the event the jury found for the plaintiff.

The court told the jury to award the plaintiff, if the verdict was in his favor, such sum in damages as they might believe from the evidence represented the fair and reasonable value of the trees cut down and the fair and reasonable cost of removing the stumps and rubbish. Appellant offered an instruction conforming to his theory, and cites in support of it several cases decided by this court. C. N. O. & T. P. R. Co. v. Falconer, 97 S.W. 727, 30 Ky. Law Rep. 152; L. & N. R. Co. v. Beeler, 126 Ky. 328, 103 S.W. 300, 31 Ky. Law Rep. 750, 11 L. R. A. (N. S.) 930, 128 Am. St. Rep. 291, 15 Ann. Cas. 913; L. & N. R. Co. v. Home Insurance Co., 146 Ky. 281, 142 S.W. 398.

Appellant, however, recognizes an insuperable obstacle to a reversal of the judgment for the reason suggested, when he states that, since the jury found for the defendant, it might be held that plaintiff was not prejudiced by the instruction on the measure of damages, even if erroneous.

It is an invariable rule of appellate practice that a verdict for the defendant in a damage case forecloses any right of the plaintiff to complain of an error in the instructions upon the method of measuring the damages. Obviously, when it is found that the plaintiff is not entitled to recover, it is useless to consider any question respecting the extent of his right of recovery, if the verdict had been for him. Goodwin v. Miller, 210 Ky. 407, 276 S.W. 117; Jones v. Whitaker, 141 Ky. 484, 133 S.W. 223; Paducah Grain & El. Co. v. Marshall, 196 Ky. 673, 246 S.W. 30; Tassone v. Goodin-Barney Coal Co., 209 Ky. 84, 272 S.W. 12; Weitlauf v. Paducah & Ill. R. Co., 190 Ky. 143, 226 S.W. 388; Conn v. Lexington Utilities Co., 233 Ky. 230, 25 S.W.2d 370.

3. Equally...