Sunnyside Coal & Coke Co. v. Reitz

• Citation: 43 N.E. 46,14 Ind.App. 478
• Court: Court of Appeals of Indiana
• Decision Date: 04 March 1896
• Parties: SUNNYSIDE COAL & COKE CO. v. REITZ et al.

14 Ind.App. 478

43 N.E. 46

SUNNYSIDE COAL & COKE CO.

v.REITZ et al.

Appellate Court of Indiana.

March 4, 1896.

Reinhard, J., dissenting.

On petition for rehearing. Overruled.

For original opinion, see 39 N. E. 541.

LOTZ, J.

And afterwards, to wit, on the 4th day of March, 1896, the court being advised, overruled the petition for rehearing heretofore filed herein by appellant.

The appellant has petitioned the court for a rehearing in this case, and makes an earnest and forcible argument in support thereof. It concedes that, in the court below, and on the former presentation in this court, the greater stress was put upon the right of the plaintiff to maintain the action while he had an equitable title only to the lands, and as to the measure of damages. It is assumed that, owing to such stress, this court overlooked the importance of other questions, and was led into consequent error. As to this intimation we desire to say that we gave each question a careful consideration, and reached the conclusion that substantial justice had been done by the judgment rendered, and that no error intervened that would cause a reversal. In view of the earnestness of appellant's argument, we proceed to give the points made in the petition a further consideration. It is conceded that no coal was taken from block 16 since the appellee became the owner. Block 11 alone is in question. Upon the trial of the case, the appellant produced two witnesses and propounded this question, “What is the market value of the fee simple of plaintiff's real estate in block 11, Lamasco, without considering any improvements upon it, and upon the supposition that the coal vein is untouched, and that the coal is still there?” The plaintiff's objection to the question was sustained. “The defendant company offered to * * * show that the total value of the plaintiff's real estate in block 11, Lamasco, without the improvements upon it, and upon the supposition that the coal vein under it is untouched, and that all the coal is still there, is not more than $3,000, and that the market value of said real estate, with the coal mined out and taken away, is as much as $2,900, and that the difference between the market value of the real estate, without any coal having been taken from it by the defendant, and with the coal having been taken from it by the defendant, is not more than $75. The objection of the plaintiff to this question and to this evidence was sustained by the court, the defendant company at the time excepting to the ruling of the court.” In its motion for a new trial, the appellant, as one of the causes, made this assignment: “The court erred in sustaining the objections of the plaintiff to the following questions to the witnesses Hiram E. Reed and Elder Cooper, and in sustaining the plaintiff's objection to said question to each of said witnesses, viz. [setting out the question as above].”

We have made these quotations from the record in order to present the precise rulings involved. In the original opinion it is stated that the appellee's evidence of damage was confined strictly to the value of the coal taken, and that no effort was made to recover for any injuries done to the realty. Appellant's counsel characterizes this statement as a palpable mistake. Let us see who is mistaken. The gravamen of each paragraph of the complaint is trespass to the real estate, and the severance and conversion of the coal. Here are two clear and distinct elements of damage,-a permanent injury to the realty, and the conversion of the coal severed. It is immaterial whether the one be designated as trespass and the other trover, or whether the two be combined in an action for trespass. Trespass and trover are sometimes concurrent remedies. When two tortious acts are separate and distinct as to time and place, the general rule is that the pleader must sever, or state them in separate counts or paragraphs; but, if several injuries flow from one single act, or from one continuous series of acts, they may all be united in one count or paragraph. This is the common-law rule. Steph. Pl. 39 (note by Heard); Sturgis v. Warren, 11 Vt. 433. And this rule is especially applicable under our code practice, in which distinct forms of action are abolished. It is true that, under the averments of the complaint, the plaintiff was entitled to recover damages done to the realty, as well as for the coal severed and converted. There are two distinct grounds of recovery stated. But the plaintiff offered no evidence whatever of the amount of damages he sustained on account of any permanent injury to his real estate. He confined his evidence of damages to the amount and value of the coal taken, and no witness testified to, nor was there a scintilla of evidence that the plaintiff suffered, other damage, even to the extent of one cent. It is true that the plaintiff might have recovered other damages under the allegations; but, if he chose to waive or abandon one ground, by failing to offer any evidence thereon, the appellant should esteem it a matter of congratulation rather than of complaint. If expressions be found in the plaintiff's evidence which might have been used as tending to show that his real estate suffered injury, it is clear that, in the absence of any proof of the amount of such damages, such evidence was merely incidental, and that its sole purpose was to show the amount of the coal which had been mined, and its value. By no possibility could such evidence be considered as fixing the amount of the damages to the realty other than nominal. The jury could not possibly find damages that were not proved, or attempted to be proved, or concerning which there was not a syllable of evidence. At the most, under such evidence, the jury could assess nominal damages only for injuries to the realty; and the authorities are all agreed that it is harmless error to assess or fail to assess nominal damages. Brauns v. Glesige, 130 Ind. 167, 29 N. E. 1061. The coal, as it lay in place in the vein, was a part of the realty. When it was severed, it became a chattel. The severance did not change its ownership. The owner of the land was still the owner of the coal. When it was carried away and converted, the owner was entitled to recover its value as a chattel. For this injury the defendant must respond, independently of any question as to the injury or damages done to the land. If the plaintiff abandoned his claim for damages as to the injury done his lands, and gave no evidence whatever as to the amount of such damages, it is difficult to see upon what hypothesis the defendant was entitled to make proof of the value of the land, either before or after the entry. If the plaintiff had brought suit against the defendant for a personal injury, claiming damages for the pain inflicted, the loss of time, and that he was prevented from fulfilling a contract by which he could have made a large profit, and if, upon the trial, he offered no evidence whatever as to such contract, would the defendant be permitted to prove that the plaintiff never had any such contract, and that he suffered no damages on account thereof? Or, suppose the plaintiff had sued for goods sold and delivered, in one item claiming for coal, and in another for lumber, and if, upon the trial, he offered evidence as to the coal, but gave none whatever as to the lumber; would it be contended that the defendant should be permitted to prove that it never purchased any lumber of the plaintiff? A bare statement of such a proposition is its own refutation. But this is precisely the attitude of the appellant in its contention on this point. We repeat, again, that the evidence of the plaintiff as to the amount of damages was confined strictly to the coal taken, and that not a syllable of evidence as to the amount of the damages to the real estate was given,-not even to the extent of one cent.

But there are other reasons why there was no error in the rulings of the court on these points. Conceding, for the sake of the argument, that the question was a proper one, was the offer a proper one? The sustaining of an objection to a proper question is not, of itself, reversible error. It must be followed up by an offer to prove. The answer to a question should be responsive to it, neither more or less. If the offer to prove be impertinent, or exceed the proper response, such additional matter is not available. In Gray v. Elzroth, 10 Ind. App. 587, 592, 37 N. E. 551, this court, by Gavin, J., said: “The offer to prove included much more, but the additional matter is not available, because not responsive to the question.” This case furnishes a forcible illustration of the rule. It is the settled law of this state that, in proving the damages to real estate with and without given changes as to its condition, a witness may give his opinion as to its value with, and as to its value without, such changes; but the witness has no right to give his opinion as to the damages, for that is a question for the jury. Yost v. Conroy, 92 Ind. 464;City of Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1. The only proper response to the question propounded would be the opinion of the witness as to the market value of the land, upon the supposition that the coal remained untouched in the land. If this had been answered, it could have availed the appellant nothing; for, without proving the value of the land after its removal, the jury would have no basis upon which to estimate the damages. No proper attempt was made to prove the value after the removal. No question was asked that called for such proof. The offer is also obnoxious because it contains the witness' estimate of the damages. This is contrary to all the later adjudications of this state. The offer, as made, was an entirety. The court ruled upon it as an entirety, for there was but one ruling. If some parts of the offer were responsive to the question, and other parts not responsive, it was...