Naylor v. Floor

• Decision Date: 29 January 1918
• Docket Number: 3096
• Citation: 170 P. 971,51 Utah 382
• Court: Utah Supreme Court
• Parties: NAYLOR et al. v. FLOOR

170 P. 971

51 Utah 382

NAYLOR et al. v. FLOOR

No. 3096

Supreme Court of Utah

January 29, 1918

Appeal from District Court of Salt Lake County, Third District; Hon W. H. Bramel, Judge.

Action by W. S. Naylor and another against Nicholas Floor.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

E. O Leatherwood for appellant.

Booth Lee, Badger & Rich for respondents.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

The questions presented by this appeal relate to the sufficiency of the evidence and measure of damages. Plaintiffs are the owners of land in Tooele county, and in the fall of 1915 had a crop of grain growing thereon. In October following the defendant, who is the owner of a band of sheep, permitted them to trespass on plaintiff's said crop and partially destroy it. Plaintiffs brought suit for the recovery of $ 675 as damages. The case was tried to a jury, and a verdict rendered for plaintiffs in the sum of $ 170.62. Judgment was entered accordingly. Defendant appeals, and assigns as error: (1) The refusal of the court to instruct the jury that the evidence was insufficient to sustain a verdict for more than nominal damages; and (2) the court erred in its instruction relating to the measure of damages. These alleged errors will be considered in the order above named.

There is substantial evidence tending to show that plaintiffs, in September, 1915, seeded to wheat sixty-five acres of the land in question; that during October next following the defendant at divers times permitted his sheep to trespass thereon; that ten acres of said land so planted went to grass; that thirteen acres of the wheat was totally destroyed; that twenty-seven acres only produced one-fifth of a normal crop and the remaining fifteen acres produced fourteen or fifteen bushels to the acre, which was about a normal crop; that it cost $ 2.50 per acre to harvest and sack the wheat, and ten cents per bushel to transport same to the nearest market. This was the only expense necessary to be incurred after the wheat was planted, for the reason that it was a dry-farm crop. The plaintiffs harvested 283 bushels from fifty-five acres, and the market value thereof was $ 2.20 per hundredweight or $ 1.32 per bushel at the nearest market.

The foregoing statement, which, as before stated, is supported by substantial testimony, discloses every element and every factor necessary to determine the damage plaintiffs sustained, under the rule declared by the court for determining the damage, which will be considered later on in this opinion. It thus appears we have the number of acres planted (65), the number of acres that went to grass (10), the number of acres totally destroyed (13), the number of acres partially injured, which produced one-fifth of a crop (27), and the number of acres uninjured (15). As appears from the testimony, if the 65 acres planted, less the 10 acres which went to grass, had not been injured by the sheep, the land would probably have produced 14 bushels to the acre, or a total of 770 bushels, but, as plaintiffs could only harvest 283 bushels, there was a loss of the difference between these two amounts, or 487 bushels, lost on account of the injury. This quantity at $ 1.32 per bushel, the market price at the nearest market, amounts to $ 642.84. This sum, less the cost of harvesting and sacking at $ 2.50 per acre, or $ 137.50 for the fifty-five acres, and ten cents a bushel for transporting to market the 487 bushels, or $ 48.70, leaves as net damage to plaintiffs the sum of $ 456.64. The jury rendered a verdict for only $ 170.62. The evidence is ample to sustain the verdict, unless the court erred in its instructions relating to the measure of damages. That question will now be considered.

The instruction assigned as error reads as follows:

"The measure of damage is the difference between the market value of the crop before the alleged damage was done and the market value of the crop after the alleged damage was done. This may be calculated by finding the market value the entire crop would have at maturity if no injury thereto had been done, and deducting therefrom the entire market value of the crop at maturity in its alleged injured state. The difference, if any, will enable you to calculate the amount of damage. From this amount so found, if you so find, you must deduct its proportion of the cost of harvesting, marketing, and bringing the crop to maturity."

Appellant challenges the validity of this instruction, except the first sentence thereof. This sentence, he insists, states the correct rule for measuring the damages in cases of this kind. The remainder of the instruction it is contended, is vicious and in conflict with the well settled law of this state as declared by the decisions of this court. In support of this contention appellant cites a case decided by this court, Lester v. Highland Boy Gold Mining Co., 27 Utah 470, 76 P. 341, 101 Am. St. Rep. 988, 1 Ann. Cas. 761, and quotes the first paragraph of the syllabi, as stating the rule for the measure of damages in this jurisdiction. The language quoted does not, to the fullest extent, reflect the opinion of the court in that case. The paragraph quoted reads as follows:

"The true measure of compensation for injury to or the destruction of growing crops is the value of the crops in the condition they were in at the time of their injury or destruction, and not the market value at the time of maturity or during the market season."

Upon an examination of the opinion, it will be found that the court was dealing with an instruction of the trial court which had been assigned as error, and the opinion must be read with that instruction in view. The trial court in that case gave the following instruction, which was excepted to by appellant:

"The plaintiffs in this case are entitled to recover only such damages to their crops of lucerne, potatoes, oats, corn, beets, wheat, and such things as are sued for as they were worth at the time when destroyed or injured, and at the place where injured or destroyed. In other words if they were injured at or before the time of harvest in the different years respectively, then in arriving at the damages you must take the market value of such products and crops not later than the prices prevailing at the time of such harvest or during the market season."

The instruction, without further explanation or modification, was manifestly erroneous. It left out of consideration entirely the expense incident to maturing, harvesting, and marketing the crop subsequent to the injury complained of. That this court considered these matters material and pertinent to a determination of the damages is manifest upon reading the language of the court in commenting upon the erroneous instructions. In 27 Utah at page 472, 76 P. at page 342 (101 Am. St. Rep. 988, 1 Ann. Cas. 761), the court says:

"This instruction, considered as a whole, is clearly erroneous. The rule stated in the first sentence has the support of authority, but, in attempting to explain it in the last sentence, the court virtually set the rule aside, and misdirected the jury by stating that, in arriving at the damages, they must take the 'market value of such products and crops not later than the prices prevailing at the time of such harvest, or during the market season.' While in cases of destruction of growing crops it is proper and important to introduce and admit evidence showing the kind of crops the land is capable of producing, the kind of crops destroyed, the average yield per acre of each kind on the land in dispute, and on other similar lands in the immediate neighborhood cultivated in like manner, the stage of growth of the crops at the time of injury or destruction, the expenses of cultivating, harvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or destruction of the crops, and while all such evidence may be considered by the jury in determining the amount of damages, if any, still the true measure of compensation is the value of the crops in the condition they were in at the time of their injury or destruction, and not the market value at the time of maturity or during the market season."

It is true the court says, "The true measure of compensation is the value of the crops in the condition they were in at the time of their injury, * * * and not the market value at the time of maturity or during the market season," but this must be taken in connection with the other parts of the opinion to which we have referred. In order to determine the value of the crop at the time and place of the injury, it is quite clear that this may be done as suggested by the court in that case, by taking into account the market value when harvested and of the expense incident to placing the crop in a marketable condition after the injury complained of. To contend that the court...