White v. Stoner

• Decision Date: 06 July 1885
• Citation: 18 Mo.App. 540
• Parties: DANIEL WHITE, Respondent, v. JACOB STONER, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 540

DANIEL WHITE, Respondent, v. JACOB STONER, Appellant.

Court of Appeals of Missouri, Kansas City.

July 6, 1885

APPEAL from Barton Circuit Court, HON. CHAS. G. BURTON, J.

Reversed and remanded.

Statement of case by the court.

In September, 1881, plaintiff bought of defendant a farm in Barton county, Missouri; but, as possession was not to be delivered until March following, a written contract or lease was entered into, by which plaintiff leased the farm back to defendant until March 1, 1882. In said lease defendant agreed to keep the premises in good repair, ordinary wear and tear excepted; to not permit his stock to run in the fields except when the ground was dry or frozen, so as not to injure the same; and that he would not cut or destroy any timber or trees on the premises.

Possession was delivered to plaintiff in March, 1882, as agreed; and at the April term, 1882, of the Barton circuit court, he brought this suit for damages for injuries to the farm while in defendant's possession, alleging that defendant had cut down trees, torn down fencing, allowed cattle to run in the fields when not dry or frozen, and had otherwise injured the houses and buildings and premises, and praying judgment for one thousand dollars.

At the same term defendant answered, admitting the lease, but denying any breach thereof on his part, or any injury whatever to the place done by him while tenant; and also pleaded a counter-claim of $19.43.

At the same term, plaintiff filed general denial for replication.

At the October term, 1882, of said court, the case was tried before Hon. B. G. Thurman, as special judge, by agreement of the parties, and was submitted to a jury, who returned a verdict for plaintiff in the sum of one hundred and forty-six dollars, and judgment was accordingly rendered, from which the defendant perfected his appeal in due time.

The errors excepted to, and relied upon, by defendant are in the action of the court in allowing the testimony of plaintiff's witnesses, S. R. Crouse, Lewis McChesney, W H. Kent, and James Mitchell, to go to the jury over the objections of the defendant.

The following is the testimony of these four witnesses in full as it appears in the bill of exceptions:

Testimony of S. R. Crouse:

" I had not known the Stoner farm for about eighteen months prior to the trade in September, 1881. At Mr White's request, I went over the place in March, 1882, to notice the condition of the place. I have farmed nearly all my life, but am not farming now. I live in the town of Lamar. I saw the stable, the house, the grove of trees, and the hedges. I noticed some trees had been cut in the grove, and a space of rail fence missing from southeast corner."

Question by plaintiff's counsel.--" Supposing that you take the Stoner farm on the 10th of September, 1881, with a fence on the west side eighty rods in length, with posts about two rods apart, with three barbed wires; take the improved land to be sixty-five or seventy acres, in good condition; taking the yard and premises around the house in good condition, and grass growing; an orchard of seventy-five or more trees in good condition; a rail crib eight by ten by sixteen feet, nailed up with slats on sides, in good condition, covered with boards; a stable which you saw standing on the place, in good condition; taking a lot about twenty rods each way, in northeast corner of farm, fenced with posts and wire; the house that you saw, in good repair; the grove of shade and ornamental trees, which you saw, still standing; the hedges you saw around the place, in good condition; length of fence in southeast corner, built of rails, in good condition and repair; the wire stretched across the north side of the creek, dividing the two fields; the space of fence which you saw missing on the north side, in good condition; now, taking into consideration that such was the condition of the place on September 10, 1881, what would you consider the damage to the place in the condition in which you saw it in March, 1882?"

The above question was objected to by defendant's counsel, because it called for the opinion of the witness, and not for facts; because it was not a proper hypothetical question; because it was not a proper case for a hypothetical question; because it was not a proper case for expert testimony; because the witness was not qualified to testify as an expert.

The court overruled defendant's objection, and permitted the witness to answer; to which ruling and order of the court defendant then and there excepted at the time.

Witness answered: " I would estimate the damage at about two hundred and thirty to two hundred and forty dollars."

Cross-examination. --" I am not on good terms with defendant Stoner. If things were moved from one part of farm to another, that would reduce my estimate of damages."

Testimony of Lewis McChesney:

" I have resided on the Stoner, or White, place since March, 1882. I farmed the place for White. I saw the place for the first time in March, 1882. Have been farming nearly all my life. I heard the testimony of Daniel White, the plaintiff, regarding the condition of the place at the time he bought, in September, 1881. As a farmer, I have knowledge of the value of improvements on a farm."

Question by plaintiff's attorney.--" Taking Mr. White's testimony to be true as to the condition of the premises at that time, September, 1881, and the condition of them in March, 1882, when you first saw them, you may state to the jury what, in your opinion, would be the reasonable amount of damages to the place by reason of the difference of the condition, if any?"

Question objected to by defendant's counsel, for the reason that it called for the opinion of the witness, and not for facts; because it was not a proper case for expert testimony; because it was not a proper hypothetical question; because the witness was not qualified to testify as an expert.

Objection overruled by the court, and witness permitted to answer; to which ruling and order of the court defendant then and there excepted at the time.

Witness answered:--" It is my opinion the damages would be two hundred and twenty-five to two hundred and thirty dollars. I plowed the land the next year." Witness described condition of land to the jury, and the effect upon the crops.

Cross-examination. --" My experience as a farmer, and as to the effects of tramping land, has been in Illinois and Minnesota. It was tolerably dry when we commenced plowing in the spring, on the Stoner place. Do not know whether farmers in that neighborhood generally let their stock run in the stalk fields or not."

Testimony of W. H. Kent:

" I reside one and a fourth miles from the Stoner place. I was raised on a farm, and am a farmer. Saw cattle on the place in winter of 1881-82. Ground was generally wet and muddy. I know what effect it has on land to allow stock to run on improved land when same is soft and muddy."

Question by plaintiff's attorney.--" What general effect does it have?"

Objected to by defendant's counsel, because it called for the opinion of the witness, and not for facts; because it was not a proper question in this case; because it was not a proper case for expert testimony; because witness was not qualified to testify as an expert.

Objection overruled by the court, and witness permitted to answer; to which ruling and order of the court defendant then and there at the time excepted.

Witness answered:--" It affects it, when tramped in winter when muddy, so as to cause it to turn up cloddy and hard. It makes it harder to cultivate, and decreases the yield from one-third to one-half the following season. I heard the testimony of the plaintiff, Mr. White, about the condition of the grove. I saw the grove about six months before the sale to White."

Question by plaintiff's counsel.--" Taking White's testimony to be true regarding the number and kind of trees cut from the grove, what would you consider the damage to the grove to be?"

Objected to by defendant's counsel, for the reason that it called for the opinion of the witness, and not for facts; because it was an improper case for expert testimony; because witness was not qualified to testify as an expert.

Objection overruled by the court, and witness permitted to answer; to which ruling and order of the court defendant then and there excepted at the time.

Answer.--" I would consider the damage to be about forty dollars."

Testimony of James Mitchell:

" I live two and a half miles from Stoner place. is a creek farm. The grove on the place is valuable for poles, wood, shade, and ornament. I know what effect it has on ground to tramp it."

Question by plaintiff's attorney.--" What effect does it have?"

Objected to by defendant, for the reason that it called for the opinion of the witness, and not for facts; because it is not a proper case for expert testimony; because the witness was not qualified to testify as an expert.

Objection overruled by the court, and witness permitted to answer; to which ruling and order of the court defendant then and there excepted at the time.

Answer.--" It affects the crop the coming season, and has a bad effect."

Besides the testimony of the four witnesses above named, there was testimony tending to prove damages.

On behalf of defendant, there was testimony tending to prove no damages.

There were no exceptions to the instructions given by the court.

BULER & TIMMONDS, for the appellant.

I. The general rule of evidence is that a witness must depose to such facts only as are within his own knowledge. 1 Greenl. Evid., sect. 440; Eyerman v. Sheehan, 52 Mo. 221.

II. The opinion of a witness may be given in evidence in two cases: (1) When the subject matter...