Williams v. Windham
| Decision Date | 01 December 1925 |
| Docket Number | 2360 |
| Citation | 3 La.App. 127 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | JOHN S. WILLIAMS v. ANSE WINDHAM |
Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
This is a suit for damages. Plaintiff owns land in the Parish of Ouachita and in the year 1924, he planted one-half acre of watermelons, two acres in cantaloupes, and one acre in corn. He alleges that during the month of July, that year, the cattle belonging to defendant were unlawfully permitted to roam at large and depredated upon his land and crops, totally destroying his watermelons, cantaloupes and corn, all worth $ 400.00. He brings this suit to recover that amount.
In answer, defendant denied each and every allegation of plaintiff's petition.
There was judgment in the district court in favor of plaintiff for $ 190.00 from which judgment defendant has appealed.
Case remanded to the district court for the purpose of permitting plaintiff to prove, if he can, that defendant's cattle were unlawfully permitted to roam at large.
Case remanded.
L. F Grisby, of Monroe, attorney for plaintiff, appellee.
McHenry Montgomery, Lampkin and Lampkin, of Monroe, attorneys for defendant, appellant.
The testimony makes it perfectly clear that defendant's cattle destroyed plaintiff's watermelons, cantaloupes and corn.
Defendant contends that other cattle than his depredated on plaintiff's crops and that there is no way to determine that his cattle did all the damage. He points out that on two different occasions other cattle were found an plaintiff's premises.
On July 4, 1924, plaintiff, or someone for him, penned some cattle and sent defendant word to come and get them; and the testimony shows that it developed on this occasion only one of defendant's cows was in that bunch. And on another occasion it seems that plaintiff penned cattle of other people along with defendant's. But it is not shown just what damage was done to the crops on July 4th nor on the other dates when plaintiff penned cattle other than those of defendant. Nor is it shown that the cattle of others actually depredated on plaintiff's crops. But the testimony is overwhelming that defendant's cattle did eat, trample upon and otherwise destroy plaintiff's crops. All of the witnesses who testified said that it was defendant's cattle which destroyed the crops. It is not denied that defendant's cattle were running at large at least at times. He kept them up a portion of the time but they were seen by various persons not only on plaintiff's premises but at other points in the neighborhood.
But counsel for defendant seriously contend that if the court should find that defendant's cattle destroyed plaintiff's crops no judgment can be rendered for plaintiff for the reason that no proof was offered as to the actual value of the crops at the time they were destroyed, it being conceded that the measure of damages for the destruction of growing crops is the value thereof at the time they were destroyed.
We do not agree with counsel that plaintiff made no proof of the value of his crops at the time they were destroyed. On the contrary, we think plaintiff did establish the value of his crops at least to the extent found by the district judge.
The leading case cited by counsel for defendant, is that of Boudreaux vs. Thibodeaux, 149 La. 400, 89 So. 250. But in that case plaintiff sued for the profits on a crop which he did not grow. He was prevented from making a crop on the land on account of having been enjoined and prohibited from going on the land. Plaintiff intended to make a crop but did not do so. The injunction was dissolved, but said the court:
"It had deprived plaintiff of the opportunity to make his intended crop of cotton and corn and plaintiff seeks now to recover by way of damages the profits he would have realized if he had not been prevented by the injunction from making the crop."
And the court held that the profits in question were altogether too uncertain to serve as a basis for judgment.
The other case cited by defendant on this point, is that of Chicago, Rock Island & Pacific R. R. Co. vs. H. C. Johnson decided by the Supreme Court of Oklahoma, and reported in 25 Okla. 760, 107 P. 662 (27 L. R. A., N. S. 879), where the court said with reference to the method of arriving at the value of growing crops:
In the body of the opinion the court, in the last cited case, cites and quotes from the decisions of many courts showing that the method of arriving at the value of a growing crop pursued in the case at bar is the correct method. In the case at bar the crops were not matured but they had advanced to a point where but little if any more cultivation was needed in order to mature them. The corn was in silk and tassel, the melons were formed and were of considerable size, some of the witnesses having counted them. No more expense was needed in order to mature them. Testimony was adduced showing that other crops of melons in the same community grown under similar circumstances produced certain quantities of melons and sold for certain amounts. One witness who had a less quantity of land than did plaintiff and where melons were cultivated and handled practically as were those of plaintiff sold his melons for $ 219.00. It was shown also that the corn had advanced to a stage where it would make good hay at the time it was destroyed and one witness estimated that the one acre would have produced two or three tons of hay worth probably $ 30.00 per ton. The testimony abundantly shows that the crops had a substantial value at the time they were destroyed. Just what it would have cost to market the crops if they had matured is not shown, but we have no doubt that the district judge took into consideration that it would cost something to market them and considered that fact in arriving at his conclusion that plaintiff was entitled to recover $ 190.00.
We think the court's judgment in fixing the amount of damages at that figure is eminently correct, and we would have no hesitancy in affirming the judgment on the point. But the most serious point raised by defendant is that plaintiff did not prove that defendant unlawfully allowed his cattle to roam at large.
Plaintiff alleged that defendant permitted his cattle to roam at large and depredate upon his land and crops and alleges that in the early part of the year 1924 the Police Jury of Ouachita parish adopted an ordinance making it unlawful for owners of cattle to permit them to be at large, but he did not make any proof of the ordinance nor did he offer it in evidence.
Defendant urges the point that court cannot take judicial cognizance of ordinances of Police Juries. We are of the opinion that the point is well taken. It is...
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