McMahon v. City of Dubuque

• Decision Date: 17 December 1898
• Parties: MICHAEL MCMAHON v. CITY OF DUBUQUE, Appellant
• Court: Iowa Supreme Court

77 N.W. 517

107 Iowa 62

MICHAEL MCMAHON v. CITY OF DUBUQUE, Appellant

Supreme Court of Iowa, Des Moines

December 17, 1898

Appeal from Dubuque District Court.--HON. FRED O'DONNELL, Judge.

ACTION for damages occasioned by a fire set out from sparks escaping from the smokestack of a steam road roller, owned and being operated by the city of Dubuque in rolling newly-laid macadam on one of its streets on which the lots of plaintiff abutted. The house thereon, with its contents, was destroyed. The jury returned a verdict for the plaintiff, on which judgment was rendered, and the defendant appeals.

Affirmed.

Duffy & Maguire for appellant.

Longueville McCarthy & Kenline for appellee.

OPINION

LADD, J.

The household goods and wearing apparel of the plaintiff and his family were destroyed. These had been used, were worn, and somewhat out of style. Such property has no recognized market value, and recovery must be based on its actual value. Gere v. Insurance Co., 67 Iowa 272, 23 N.W. 137; Clements v. Railway Co., 74 Iowa 442. To ascertain the actual value, it was proper to take into consideration the original cost of the articles, the extent of their use whether worn or out of date, their condition at the time, and from all these determine what they were fairly worth. The cost alone would not be the correct criterion for the present value, but it would be difficult to estimate the value of such goods except by reference to the former price, in connection with wear, depreciation, change in style, and present condition. Luse v. Jones, 39 N.J.L. 707; Railway Co. v. Nicholson, 61 Tex. 550; Lumber Co. v. Wilmore, 15 Colo. 136 (25 P. 556); Printz v. People, 42 Mich. 144 (3 N.W. 306); State v. Hathaway, 100 Iowa 225, 69 N.W. 449; Latham v. Shipley, 86 Iowa 543, 53 N.W. 342. The cross-examination of Lizzie McMahon indicated that she spoke only of the actual value, and not of the market price.

II. A witness was not permitted to testify whether the house destroyed was in good repair, because merely an opinion. The value of the house was in controversy. The condition of a dwelling house as a whole is not observable, except upon examination, and for this reason does not come within the rule of Kelleher v. City of Keokuk, 60 Iowa 473, 15 N.W. 280, that testimony of matters within the observation of all are to be treated of as facts rather than opinion. There might well be wide differences of opinion as to what would constitute good repair, and the court rightly held that the house might be described in detail, and from such evidence the jury determine its condition.

III. Evidence was received, over the defendant's objection showing the actual value of the house at the time of the fire, and, it is said, this does not furnish the true basis of recovery. The fundamental principle in all actions for damages is that just compensation be made to him who has suffered injury from another in his person or property, and, in order to give satisfaction, measured in money, such rules are formulated as are though best adopted to accomplish this purpose. A distinction has, for this reason, been made between growing crops, shrubs, and trees, whose chief value is because of their connection with the soil and their incidental enhancement of the value of the land, and those improvements which may be replaced at will, and whose value may readily be determined, apart from the ground on which they rest. It is thus put by Mr. Sutherland in his work on Damages (vol. 3, p. 368): "If the thing destroyed, although it is a part of the realty, has a value which can be accurately measured and ascertained without reference to the soil on which it stands, or out of which it grows, the recovery may be the value of the thing thus destroyed, and not for the difference in value of the land before and after such destruction." In Drake v. Railway Co., 63 Iowa 302, crops were destroyed by overflow caused by an embankment, and the measure was held to be the difference between the market value of the land immediately before and after the injury. This rule was approved in Sullens v. Railway Co., 74 Iowa 659, and applied, where growing trees were burned, in Greenfield v. Railway Co., 83 Iowa 270, and Brooks v. Railway Co., 73 Iowa 179. See Smith v. Railroad Co., 38 Iowa 518; Striegel v. Moore, 55 Iowa 88, 7 N.W. 413. In Rowe v. Railway Co., 102 Iowa 286, the court said: "Appellant's contention results in fixing the value of each tree destroyed or damaged by the fire, and the aggregate of such values would be the measure of plaintiff's recovery. Such a rule may well be held applicable to the destruction by fire of buildings, fences, and other improvements, which may at once be replaced, where the exact cost of restoring the property destroyed is capable of definite ascertainment, and where there is no damage of the realty itself." It is apparent that growing crops, small trees, and orchards are of little or no use separated from the soil, and that their value must necessarily be determined in connection with the land on which they stand. This is not true of improvements which may be replaced at will. In Graessle v. Carpenter, 70 Iowa 166, 30 N.W. 392, the defendant, by digging trenches and laying water pipes, injured the plaintiff's fences, walks, house, and shrubs. It was not shown the acts were of such a nature as to permanently injure the real estate, or that it could not be restored to its condition before the fire. The court, through Beck, J., announced the rule to be that which will "give the plaintiff just and full compensation. * * * In the case before us the familiar and simple rule applicable to such cases would perfectly attain that end. That rule is this: The plaintiff may recover as damage the sum which, expended for the purpose, would put the property in as good condition as it was in before the injury, with the additional sums which would compensate the plaintiff for the use and enjoyment of the property, should he be deprived thereof by the injury, and the value of such property, as trees, buildings, and the like, which have been wholly destroyed, and cannot be restored to the condition they were in before the injury." We take it, the trees and shrubs were of a character which might be replaced by others of the same actual value;...