Uhrhan v. Morie

• Decision Date: 07 April 1927
• Docket Number: No. 4069.,4069.
• Parties: UHRHAN et al. v. MORIE.
• Court: Missouri Court of Appeals

293 S.W. 483

UHRHAN et al. v. MORIE.

No. 4069.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by William Uhrhan and another against Philip Morie. Judgment for plaintiffs, and defendant appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

Stephen Barton, of Benton, for respondents.

BAILEY, J.

This is an action to recover the value of a growing wheat crop destroyed by defendant. Judgment was for plaintiff in the sum of $431.60, from which defendant has appealed.

Plaintiffs offered evidence tending to prove that, by a verbal agreement, T. F. Scherer, one of the plaintiffs, rented 100 acres of land in Scott county from defendant in the fall of 1923, for the purpose of planting a wheat crop thereon; that by the terms of the contract defendant was to furnish the seed for planting, Scherer was to plow the land, plant and harvest the wheat and haul it to market; that defendant was to get half and Scherer half and each was to pay his part of the threshing bill; that plaintiff Scherer, under said verbal agreement, planted about 70 acres to wheat, upon his undivided one-half, of which he gave a chattel mortgage to plaintiff Uhrhan; that in the spring of 1924, before the crop was matured, defendant, without any authority from plaintiffs, plowed up and destroyed said wheat crop and converted the land to his own use. Defendant denied that Scherer had any lease and justified the plowing up of the wheat upon the theory that there was a poor stand of growing wheat and the crop was worthless.

On the question of value of the crop the evidence most favorable to plaintiffs tended to prove that there were 70 acres planted in wheat; that the average yield on similar land in that neighborhood was 17 bushels to the acre, which brought a maximum of $1.29 per bushel on the market in the fall of 1924; that the expense of preparing and sowing the 70 acres of wheat was worth $4 per acre and the cutting and harvesting $2 per acre, hauling to market 5 cents per bushel, and threshing 7 cents per bushel. There was no direct evidence as to the value of the wheat at the time it was destroyed.

Appellant assigns as error the giving of plaintiffs' instruction No. 2, that the verdict is excessive, and the refusal of defendant's instruction No. 6. Plaintiffs' instruction complained of reads as follows:

"No. 2. If you find the issues for the plaintiffs as set forth in instruction No. 1, and find that plaintiffs were damaged, you are further instructed that the measure of damages will be the value of the crops destroyed, standing in the field, but, in arriving at the value of said crop of growing wheat, you may take into consideration such evidence introduced, if such was introduced,, of the yield of a similar crop on similar land under similar conditions and the market value of the crop in the autumn of 1924 in connection with all evidence, if any in the case, of the cost of planting, cultivating, gathering, and marketing the same." (Italics ours.)

It is urged by appellants that the portion of the instruction in italics constitutes a comment on the evidence and is misleading. The general rule as to the measure of damages for the destruction of growing crops is the value of the crop destroyed standing in the field at the time it was destroyed. Hunt v. Railroad, 126 Mo. App. 261, 103 S. W. 133; Pa a v. Railroad, 174 Mo. App. 227, 156 S. W. 746; Carter v. Railroad, 128 Mo. App. 57, 106 S. W. 611; Anderson v. Railroad, 129 Mo. App. 384, 108 S. W. 605; Deal v. Railroad, 144: Mo. App. 684, 129 S. W. 50; Teller v. Bay & River Dredging Co., 151 Cal. 209, 90 P. 942, 12 Ann. Cas. 779, 12 L. R. A. (N. S.) ...