Missouri, Kansas & Texas Railway Co. v. Lycan , 57 Kan. 635 ( 1897 )

Allen, J.

1. Petition averring destruction of growing trees injury to freehold. There are 17 specifications of error in the brief. Most of them, however, merely present in different forms the same 'proposition, the substance of which is, that the defendant failed to allege and show that the property destroyed was a part of the freehold and added to the value of the farm, and that the destruction thereof diminished its value. It is urged that the petition is insufficient for the purpose of a recovery as for an injury to the land, and that the case was erroneously tried on that theory. The petition alleges that the plaintiff was the owner of the land, and that the trees, etc., were growing and standing upon it; that the defendant negligently permitted fire to escape from . . xts engine, and that such fire spread and burned them. We fail to perceive any essential fact omitted from the petition. A fruit tree, bush, or vine kept standing or growing for its fruit, or a shade or ornamental tree or bush, is a part of the realty, and presumably adds to the value of it. There is nothing whatever in the petition or evidence indicating that the orchard that was destroyed bore any different relation to that realty than orchards usually do to the land on which they stand ; and it hardly seems a question open to discussion whether orchards and ornamental trees and shrubs are to be treated as a part of the realty. There is no question here concerning nursery stock or severed timber. The question as presented by objections to the testimony offered, varies but little, in substance, from that raised on the demurrer to the petition. It is that proof was made of the amount of damages to the farm without any corresponding averment in the petition, which stated the value of the different trees and shrubs destroyed and injured. The facts stated in the petition showed an injury to the freehold, and it concluded with the statement that that injury was to plaintiff’s damage in the sum for which she asked judgment. It is never necessary, nor even proper, to plead conclusions of law, nor deductions from the facts on which a cause of action arises. It is always desirable that the pleader state concisely the facts constituting his cause of action, and thereupon demand the relief he is entitled to. The trial court rightly held that testimony concerning the value of the trees should be confined to their value to the farm and as a part of it.

3. Independent value of trees, etc., may be proved. The defendant also objected to witnesses being allowed to state the value of the trees and other things destroyed as a part of the freehold, on the ground that this was allowing them to assume the province of the jury and fix the plaintiff’s damages. It is contended that the question should have been confined to the value of the farm as a whole before and after the injury, leaving the jury to compute the damages by deducting one from the other. While this is undoubtedly the regular and proper method of arriving at such damages as cannot be itemized and definitely measured in detail, it does not preclude the use of the best evidence which the nature of the case affords. Where a thing, whether it be a building, a tree ox-shrub, is destroyed by a wrong-doer, the most natural and best measure of the damage is the value of the thing destroyed as an appurtenant to, or part of, the realty; and ordinarily the value of the thing destroyed would be the measure of the injury to the freehold. If for any reason the injury to the realty should be in fact less than the value of the thing destroyed, the plaintiff’s recovery would be limited to the actual diminution in value of the realty. While this might be shown, either on cross-examination of the plaintiff’s witnesses, or as a matter of defense, it does not prevent proof by the plaintiff of the value of the thing destroyed as a part of the realty, as was done in this case.

There are a number of other assignments of error on the admission of testimony. One is that the Court erred in admitting the records, from the office of the Register of Deeds, of various deeds in the chain of the plaintiff’s title to her farm. She produced three original deeds, one of which was from her mother to her, and the record was the only proof of the other conveyances in her chain of title. The objection is, that it was not shown that the originals were not in her possession. Though the evidence adduced was not very satisfactory, the testimony of her brother tended to show that he had charge of all her papers relating to the land, and that the deeds produced were all she had. In some cases, a trial court might with propriety have insisted on more strict preliminary proof, but in this case it appeared, without contradiction, that the plaintiff was in possession of the land, claiming to hold it under the deed from her mother. This .was clearly sufficient as a prima facie showing of title, and there being no evidence against it, an error in admitting the records, if error there was, would be immaterial. Complaint is also made of the admission of the testimony of the section-foreman, Jury, that two fires were reported as set out by that train, and also of the admission of the testimony of Henry Gintzell to statements made to him by the claim adjuster of the Company with reference to the' fires that were started, and especially the one that burned the plaintiff’s property. If, as claimed by the defendant in error, the witness, Jury, meant merely to state what fires he reported to the Company as having occurred on his section, perhaps the evidence was admissible ; but the testimony of Gintzell as to what the adjuster told him appears objectionable. The error in its admission is unimportant, however, for the testimony of the witnesses for the defendant, as well as of those for the plaintiff, all tended to show that this particular fire was started by the engine of the defendant, and that at least one other fire was also started by it near by on the same trip. The fire that burned the plaintiff’s property is not accounted for in any other manner than by having escaped from the defendant’s engine ; and there really was no conflict in the evidence on that point. No witness on either side attempted to account for it in any other manner ; while the witnesses for the plaintiff testified that they saw the fire start on the right of way just after the train passed, and the plaintiff testified that she saw a fire start down the road, south and west from the one that passed over her place, and that she watched and saw this fire start just as the train passed. The defendant had the engine examined after it arrived at Sedalia, because it was reported that fires had been started. Although no witness testified to having seen a spark pass from the. engine to the dry grass and start a flame, the connection of the fire that burned the plaintiff’s property with that of the defendant’s engine is traced by the proof in the case about as well as a prairie fire can often be traced to a locomotive engine, and by evidence which is quite harmonious so far as it goes.

G. S. Mosteller testified at length concerning the number and kinds of trees and shrubs killed and injured, and their value ; he was examined and cross-examined minutely with reference to all the particulars. Thereafter, A. J. Baker was called, and testified to having been through the orchard in June, before the fire, trimming the trees ; that he was in it a few days after the fire; that he appraised the damages to the orchard with Mosteller and Linton. He was then asked:

“I wish you would go on and state to the jury to what"extent,— state the number of trees.

“Court: Did you hear Mr. Mosteller’s list given here? A. Yes, sir.

“Court: Is that correct? A. Yes, sir. His expression is mine exactly.

“Did you three appraisers agree upon the number of trees, and value of each tree? Yes, sir.”

This question was objected to by the defendant as incompetent and irrelevant, and the objection was overruled by the Court, for the purpose of saving time.. Similar questions were asked the witness Linton, and a similar ruling was made. This is certainly a very objectionable method of examining witnesses. One witness ought not to be called on to either indorse or criticise the statements of another with reference to the assessment of damages in such a case as this. His statements of fact, should be only of what he himself knows, and the estimates of value should be his individual judgment, unbiased by the opinions or expressions of others. This error requires a reversal of the judgment, unless we can say with a fair degree of certainty that the jury were not influenced in their assessment of damages by the objectionable testimony. The estimate made by the witness, Mosteller, aggregates over $3,500. The defendant called several witnesses who testified on the same subject.' C. E. Stoner gave a detailed statement of the number and grades of trees killed and damaged, and a very exact estimate of the values of those killed, and the damages to those injured. His estimate fixed the total amount of damage to apple trees at $1,820.90. I. B. Garrison was not very definite in his statements, but fixed the number of trees killed and damaged at 384, and the damages at $4 and some cents each. He made no estimate on the other items. J. D. Watson, also a witness for the defendant, who appears to have made an examination of the orchard with Mr. Garrison, testified that they estimated 384 apple trees damaged and killed, and, estimated the average damage at $4.50 per tree ; and that the total amount of all the damage, as estimated by them, was something over $2,000. He had lost his memorandum and could not tell the exact sum. One witness for the defendant estimated 120 rods of hedge as damaged to the amount of 38 cents a rod. No witness for the defendant appears to have given an estimate of the damage to the budded-peach, walnut, plum and cherry trees. In answer to the ninth special question submitted, the jury gave the items of damage allowed by them, from which it appears that $1,755 only was allowed for apple trees killed and injured. This was $65.97 less than the estimate of the defendant’s witness, Stoner, and $27 more than that stated by Watson. From this it will appear that the allowance was below the average of the estimates of the defendant’s, own witnesses. The total amount allowed was $2,140. Stoner, who gave the only detailed estimate made by any witness for the defendant, testified to items aggregating $1,961.57, but omitted several items named by other witnesses. It is evident that the jury in fixing .the amount of the plaintiff’s recovery accepted the testimony of the witnesses for the defendant, in the main, and that the verdict was not materially influenced by the objectionable testimony. The whole amount allowed is but $140 over $2,000, and the defendant’s witnesses allowed something, though we do not know how much, over $2,000. The difference between the verdict and the estimate of Mosteller is so very large that it is evident they did not, to any material extent, accept his estimate, or that of the other witnesses for the plaintiff who merely indorsed his statements. It is clear, therefore, that the objectionable testimony did not work such substantial injury to the defendant as would warrant a reversal of the judgment.

The second instruction asked by the defendant does not correctly state the law, and was rightly refused. The instructions as to the measure of damages, which the Court gave, were correct, and the question discussed with reference to them has already been sufficiently considered while speaking of the sufficiency of the petition.

The action of the Court in striking out a large number of the special questions asked was entirely proper. Most of those which the Court refused to submit were more in the nature of a cross-examination of the jury than of properly framed questions calling for special findings. Seventy-four questions were asked, and, of these, 31 were submitted and answered.

It follows from what has already been said that the Court did not err in rendering judgment on the verdict, and that that judgment must be affirmed.

We are asked by the defendant in error to impose a penalty of five per cent, on the amount of the judgment, under sections 576 and 578 of the Code of Civil Procedure. Whether or not this Court has the power to impose such penalty in any case', we do not deem it necessary to decide now. No practice of the kind indicated in section 578 has ever been followed in this Court, but whether it is authorized or not we think there were reasonable grounds for the proceeding in error in this case.

All the Justices concurring.