Watkins v. Mountain Home Co-operative Irrigation Co.

• Decision Date: 02 April 1921
• Citation: 33 Idaho 623,197 P. 247
• Parties: HARRY WATKINS, Respondent, v. THE MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

197 P. 247

33 Idaho 623

HARRY WATKINS, Respondent, v. THE MOUNTAIN HOME CO-OPERATIVE IRRIGATION COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 2, 1921

EVIDENCE SUFFICIENT TO SUPPORT VERDICT-SUBMISSION OF PARTICULAR QUESTIONS OPTIONAL-HOW QUESTIONS SHOULD BE FRAMED-COMPETENT EVIDENCE ON VALUE OF TREES-IMPROPER REMARKS OF COUNSEL.

1. Under the provisions of C. S., sec. 7170 (R. S., sec. 4824 as amended by Laws of 1907, p. 483), the verdict of a jury will not be set aside where there is substantial evidence to support such verdict.

2. Under the provisions of C. S., sec. 6861 (R. C., sec. 4397) in an action for recovery of money only or specific real property, it is optional with the court to submit or refuse to submit "particular questions of fact" to the jury.

3. Where the court on its own motion or the motion of either party has submitted "particular questions of fact" to the jury, it is not reversible error for the court to receive a general verdict with such questions as may have been answered, and this is in effect a withdrawal of the questions that the jury has failed to answer.

4. Where requests for the submission of "particular questions of fact" are made, the questions should be so framed as to call for an answer as direct as the nature of the inquiry will admit.

5. The "particular questions" submitted in this case and not specifically answered by the jury, held to have been in effect answered by the general verdict and questions that were answered.

6. One who has lived upon a farm and grown an orchard and shade trees is competent to testify as to the value of trees that have been injured or destroyed in that vicinity.

7. Where attention of the court is called to objectionable remarks of counsel, and it instructs the jury to disregard them, such conduct of counsel will not ordinarily be grounds for a reversal of the judgment.

8. The measure of damages for the destruction of trees cannot be based solely upon the cost of their production, to the time of such loss.

APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. Jas. R. Bothwell, Judge.

Action for damages for failure to furnish water. Judgment for plaintiff. Conditionally affirmed.

Costs allowed to respondent.

Sullivan & Sullivan and W. C. Howie, for Appellant.

Where a jury disregards the evidence and renders a verdict in favor of a party not entitled thereto, the case should be reversed and where the evidence is insufficient to support findings or verdict, then the verdict or judgment must be reversed. (Commercial Bank v. Lieuallen, 5 Idaho 47, 46 P 1020; Work Bros. v. Kinney, 7 Idaho 460, 63 P. 596; Thomas v. Pocatello P. & Irr. Co., 7 Idaho 435, 63 P. 595; Zienke v. Northern P. R. Co., 8 Idaho 54, 66 P. 828; First Nat. Bank v. Carter, 8 Idaho 391, 69 P. 123; Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; Jensen v. Northern P. Ry. Co., 8 Idaho 599, 70 P. 790; Wilson v. Vogeler, 10 Idaho 599, 79 P. 508; Small v. Harrington, 10 Idaho 499, 79 P. 461; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Hibler v. Smith, 20 Idaho 590, 119 P. 41; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Furey v. Taylor, 22 Idaho 605, 127 P. 676; McDonnell v. Jones, 25 Idaho 551, 138 P. 1123; Constantine v. McDonald, 25 Idaho 342, 137 P. 531; McLean v. Hayden Creek Min. & Mill Co., 25 Idaho 416, 138 P. 331; State v. Trego, 25 Idaho 625, 138 P. 1124; Wolter v. Dixon, 29 Idaho 26, 157 P. 250; Pollock v. Pollock, 71 N.Y. 137, 154.)

It is the province of the court to determine what particular facts the jury shall find specially, and neither party has a right to dictate the terms of such questions or to assign error on the refusal of the court to comply with such dictation. (Lufkins v. Collins, 2 Idaho 256, 10 P. 300.) It was optional with the court to submit, or refuse to submit, particular questions of fact to the jury. The exercise of the power and the extent of its exercise are left to the discretion of the court. (Olmstead v. Dauphiny, 104 Cal. 635, 38 P. 505; Thompson v. Gregor, 11 Colo. 531, 19 P. 461; Carroll v. Chicago, B. N. R. Co., 99 Wis. 399, 67 Am. St. 872, 75 N.W. 176; Webb v. Denver & R. G. W. Ry. Co., 7 Utah 17, 24 P. 616.)

If the court instructs the jury that if they render a general verdict then they are to find on certain issues of fact by answering "each of the interrogatories separately," submitted by the court, they have no discretion whatever to answer part of the questions and refuse to answer others. Having exercised their discretion and rendered a general verdict, then it is for the court to say whether they shall answer certain interrogatories, and if he thinks that the case justifies interrogatories, he can exercise his discretion and submit them to the jury and the jury must answer each and all of them. (Clementson on Special Verdicts, pp. 7, 52, 110; Kansas P. Ry. Co. v. Peavey, 34 Kan. 472, 8 P. 780; Redford v. Spokane St. Ry. Co., 9 Wash. 55, 36 P. 1085; Eischen v. Chicago, M. St. P. Ry. Co., 81 Minn. 59, 83 N.W. 490; Rathbun v. Parker, 113 Mich. 594, 72 N.W. 31; Atchison, T. & S. F. Ry. Co. v. Shaw, 56 Kan. 519, 43 P. 1129; Stephens v. Gardner Creamery Co., 9 Kan. App. 883, 57 P. 1058; Burke v. McDonald, 2 Idaho 679, 686, 33 P. 49; Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835.)

The cost of planting and keeping up trees until they were three or four years old is not the proper measure of damages. (Hanes v. Idaho Irr. Co., 21 Idaho 512, 535, 122 P. 859.)

Counsel for plaintiff wilfully attempted to and did prejudice the jury against the defendant by referring to it as a "gigantic corporation," an "artificial being," that was attempting to drive plaintiff and wife off their land. (Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Cleveland P. & E. Ry. Co. v. Pritschau, 69 Ohio St. 438, 100 Am. St. 682, 69 N.E. 663.)

E. M. Wolfe and Daniel McLaughlin, for Respondent.

The jury made its findings and the same is final. (Ross v. Kerr, 30 Idaho 492, 167 P. 654.)

This was an action for the recovery of money only. Neither the court by instructions nor counsel by stipulation could enforce the finding of a special verdict by the jury. (Shaw Lumber Co. v. Manville, 4 Idaho 369, 39 P. 559; Meyers v. Hart, 3 Colo. App. 392, 33 P. 647.)

"Insufficient answers to special interrogatories are not ground for reversal, where the interrogatories were such that no answers which could have been made would have controlled the general verdict." (38 Cyc. 1924.)

The record in this case will affirmatively show that the judgment was right and would have been the same in the absence of the alleged unauthorized remarks of counsel. (Goldstone v. Rustemeyer, 21 Idaho 703, 708, 123 P. 635.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ. , concur.

OPINION

LEE, J.

This is an action to recover damages alleged to have been caused by the failure of appellant to deliver water during the irrigation season of 1914, in accordance with the terms of its water deed, which it executed to respondent. The complaint alleges that appellant is a corporation, doing an irrigation business in Elmore county, Idaho; that in January, 1913, respondent purchased from it a perpetual water right for fifty acres of land; that by the terms of the conveyance appellant was required to deliver two acre-feet of water for each acre of land, during the irrigation season of each year thereafter, this water to be measured within a quarter mile of respondent's premises; that he relied upon the warranty requiring the delivery of the water, and had growing on said premises crops of grain, fruit and shade trees; that appellant had failed and neglected to deliver to him sufficient water for such crops and trees, and by reason thereof he was damaged in the sum of $ 4,870.

The answer admits its corporate existence and the execution of the water deed, but denies most of the other material allegations of the complaint, and sets up certain affirmative matter by way of defense. It alleges that one of its storage reservoirs was connected with its distributing system by conduit, several thousand feet long, a part of which was a tunnel through a mountainside; that it exercised every precaution to keep said conduit in repair, but that on the 4th of July, 1914, a severe cloudburst occurred over a portion of the same, and the great amount of water caused the earth and rock over a portion of the tunnel to clog the same, so that it was impossible to get water through until the 14th of August; that said cloudburst and the great quantity of water therefrom was unprecedented, and the breaking of said tunnel was an unusual accident, over which the appellant had no control or means of protecting itself; and that by the terms of its deed of conveyance it was exempt from liability for damages caused through accident, drouth, scarcity of water, or from any cause beyond its control.

The case was tried to the court sitting with a jury, and upon appellant's motion the court submitted with a general form of verdict twenty interrogatories pertaining to the issue raised by the pleadings. The jury returned a general verdict for respondent in the sum of $ 1,807.25, and answered eleven of the special interrogatories, failing to answer the remaining ones.

Appellant relies upon six assignments of error; the first, that the evidence is not sufficient to support certain special findings or the verdict or judgment entered thereon particularly specifying wherein the evidence is insufficient; the second is predicated upon the refusal of the court to require the jury to answer all of the special interrogatories; the third, fourth and fifth are based upon alleged errors in the admission or refusal of the court to strike certain evidence, and in...