St. Louis, Iron Mountain & Southern Railway Co. v. Hall

• Decision Date: 21 March 1903
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HALL
• Court: Arkansas Supreme Court

74 S.W. 293

71 Ark. 302

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HALL

Supreme Court of Arkansas

March 21, 1903

Appeal from Pope Circuit Court, WILLIAM L. MOOSE, Judge.

Reversed.

STATEMENT BY THE COURT.

The appellee sued the appellant for $ 200, the alleged value of grass upon thirty-three acres of land standing thereon alleged in his complaint to have been destroyed by fire started by a spark from a defective engine drawing an excursion train, going in an easterly direction over the track of the railway of appellant, on the 22d day of August 1899, in the county of Pope in the state of Arkansas.

The appellant answered the complaint, and specifically denied each allegation in the complaint.

The appellee, W. C. Hall, testified in his own behalf that he did not see the fire start; that he had the permission of his wife, who owned the land on which the grass was, and which was about thirty-five acres, to fence the land and use it for a meadow; that it was covered with ordinary wild grass and wild clover, which he intended to mow; that there were weeds upon the knolls, and he thought that he could have got twenty-five or thirty tons of hay off the field. He thought he was damaged at least $ 200 by the fire burning the grass. He says that he had no contract with his wife about the meadow: "I told her," he testified, "that I wanted to make a meadow out of the land, and she said 'All right; take it and fence it, and have it for your own as long as you want it.'" He was asked "How much were you damaged by that fire?" Answer "I was damaged at least $ 200." Question: How many cattle could you have got to pasture on that place, had it not been burned off?" Answer: "Fifty head."

J. B. Evans was allowed to testify as follows: Question: "What would it have been worth for pasturage?" Answer: "Sixty-five or seventy-five dollars; not less than that."

All this was over the objection of the defendant, to which it excepted.

Judgment reversed and cause remanded for new trial.

Lovick P. Miles and Dodge & Johnson, for appellant.

The grass being a part of the realty, no transfer of it would be valid unless made in compliance with the statutes of frauds. See Sand. & H. Dig. § 3469. At most, a leasehold interest for one year could be granted by parol. Id. § 3478. It was error to allow witnesses to estimate the damages. 47 Ark. 501; Lawson, Exp. & Opinion Ev. 448; 67 Ark. 375; 24 Ark. 251; 62 Ark. 510; 59 Ark. 110; 51 Ark. 328; 21 S.W. 81; Id. 607; 31 S.W. 412; 67 Tex. 241; 85 Tex. 593; 56 N.W. 200; 14 Neb. 463; s. c. 16 N.W. 747; 17 Wend. 161; 1 Suth. Dam. 94; 1 C. C. A. 448.

HUGHES, J. BATTLE, J., did not participate.

OPINION

HUGHES, J., (after stating the facts).

Generally, "a witness is never permitted to estimate the amount of the damage for the doing or not doing of a particular act which a party has sustained thereby." This is the province of the jury, and a witness can not be allowed to usurp it. Little Rock, M. R. & T. Ry. v. Haynes, 47 Ark. 497, 1 S.W. 774. The rule generally is that a witness should state facts, and the jury should find from the facts in evidence what the damages are, if any. S. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159; Sedgwick, Damages, § 1293; Railway Company v. Jones, 59 Ark. 105; Lawson, Expert and Opinion Evidence, p. 448.

The appellant contends that the plaintiff's claim is within the statute of frauds. But the statute was not pleaded, and, had it been, could not have availed the defendant. "A third party can not, in a case where his own obligations growing out of the existence of the contract in question are concerned, deny the obligation of the contract upon the party who was to be charged thereby, or take any benefit of the protection upon it against himself." Browne, Statute of Frauds, § 135.

What right had the plaintiff to sue? He was a tenant at will. Thouogh four months over one year had elapsed from the time he took possession of the land under the verbal permission of his wife, she, who owned the land, still permitted him to remain in possession; at least, she had not interfered with him, or demanded possession of him. Had he planted a crop, he might have been tenant for the second year or tenant from year to year. But he had planted no crop. He had fenced the land, and was in possession under the original verbal permission of his wife, which had...