Atlanta & Birmingham A. L. Ry. v. Brown

47 So. 73, 158 Ala. 607, 1908 Ala. LEXIS 597

• Court: Supreme Court of Alabama
• Decided: December 17, 1908
• Status: Published

Opinion

SIMPSON, J.

This action was brought by the appellee against the appellant to recover damages for injuries to lands, crops, etc., by reason of the defective condition of the stock gaps on said land. Appellant insists that the demurrer to the complaint should have been sustained, because it combines two different causes in one count, to wit, the failure to put in the cattle guards and the failure, after they were placed in, to keep them in repair. This ground óf demurrer was not well taken, for the reason that said causes are alleged in the conjunctive, the only effect of which is that both must be proved.

It is next insisted that the complaint should have alleged that the notice was given to some agent who was authorized to place the cattle guards in. The statute does not so require, but simply requires that the demand shall be made on the “defendant or their agents.” The citizen is not supposed to know what the duties of the several agents of the railroad company are, and the statute very properly fails to require him to ascertain the particular one whose duty it is to place the cattle guards in.

It is next insisted that said complaint is subject to the demurrer because it does not allege that demand was made on the defendant or its agent to repair the cattle guards. The statute requires the railroad company to “put cattle guards upon such railroad and keep the same in repair -whenever the owner * * * shall make demand upon them or their agents and show that such guards are necessary to prevent the.depredations of stock upon the land.” — Code 1896, § 3480. We do not construe this statute to require a new demand whenever the cattle guards become out of .repair; but, when the demand is made to place them, it then becomes the duty of the company to place them in and keep them in repair. The charge of failure to keep the cattle guards in repair is sufficient, without specifying which particular ones are out of repair. The description of the land is sufficient for identification. It is not necessary to allege that, when the demand was made, the plaintiff showed to the railroad company that the cattle guards were necessary. This is a matter of evidence, and, when it is shown to .the court, that is a sufficient compliance with-the statute. The complaint alleges, as a matter of fact, that they were necessary.

The proof that the railroad that ran through plaintiff’s lands was known as the “Atlanta & Birmingham Air Line Railway,” Aims assessed in that name, etc., Avas sufficient to make out a prima facie case; and, if the defendant did not introduce any evidence to the contrary, the court Avas justified in basing- its charge on the idea that that is the railroad company whose road runs through plaintiff’s land.

The appellant, in arguing assignments 2, 3, 4, and 5, insists that the proper measure of damages in this case is the difference in the value of the land before and after the depredation by the stock, and that it Aims improper to admit testimony as to the “hoorah grass” and “Johnson grass” destroyed by the stock. It is true that the general rule is recognized in this state that, in an action for trespass to the land itself, the difference between the value of the land before and after the trespass is the measure of the damage. — Brinkmeyer et al v. Bethea, 139 Ala. 376, 35 South. 996. This is not an action of trespass, but an action for negligence resulting-in injury. The true rule is said to be that “if the thing destroyed, although it is part of the realty, has a value which can be accurately measured and ascertained, without reference to the soil in which it stands, or out of which it grows,-the recovery must be for the value of the thing thus destroyed, not the difference in the Amine of the land before and after such destruction.” — Whitbeck v. N. Y. Cent. R. R. Co., 36 Barb. (N. Y.) 644-647. This rule is applied to crops, grass, fruit trees, etc. — Byrne v. Minneapolis, etc., Railway, 38 Minn. 212, 36 N. W. 339, 8 Am. St. Rep. 668; Railway v. Horne, 69 Tex. 644, 649, 9 S. W. 440; Galveston, H. & S. A. Ry. v. Rheiner et al., (Tex. Civ. App.) 25 S. W. 972; Berard et al v. Atchison, etc., R., (Neb.) 113 N. W. 537; Gresham v. Taylor, 51 Ala. 505. Our own court has said: “If the trespass consisted of a severance of a part of the freehold from the rest, for instance, growing timber or minerals, the value of the thing severed, while it constituted a part of the freehold at the time of severance, and not as a chattel after severance, may be regarded as a proper measure of recovery” (Warrior, etc., Co. v. Mabel Mining co., 112 Ala. 626, 20 South. 918) ; and again, in a case where damages were claimed for a. continuing trespass, that “the difference in the value” before and after the trespass “is an improper measurement of damages,” although it might be competent evidence, to be considered by the jury in connection with the other evidence (Abercrombie v. Williams & Windham, 127 Ala. 180, 182, 28 South. 387). Where there is damage to the land, and also destruction of property attached to the land capable of ascertainment as to its value, recovery may be had for both.- Receivers, etc., v. Pfluger (Tex. Civ. App.) 25 S. W. 792; Ft. Worth, etc., R. v. Wallace, 74 Tex. 581, 12 S, W. 227. These principles have been distinctly applied to cases where the suit is for damages for failure to keep the cattle guards in repair.- Smith v. Chicago, etc., R., 38 Iowa 518, 522; St. Louis & S. F. Ry. v. Ritz, 33 Kan. 404, 6 Pac. 533; K. C. M. & O. Ry. v. Mayfield (Tex. Civ. App.) 107 S. W. 940. It results that there was no error in the matters set forth in said assignments.

' The court erred iu allowing the witness (plaintiff) to testify as to what the amount of the damage done to the fruit trees was. A witness cannot give his opinion as to the amount of damage. The province of the jury is to ascertain the amount of damage, and the witness must testify to facts, upon which the jury must base its findings. — Donnell v. Jones, 13 Ala. 490, 510, 48 Am Dec. 59, et. seq.; Montgomery & W. P. R. v. Varner, 19 Ala. 185; Ala. & Fla. R. v. Burkett, 42 Ala. 83, 87, 88; Chandler v. Bush, 84 Ala. 102, 4 South. 207; Dushane v. Benedict, 110 U. S. 631, 647, 7 Sup. Ct. 696, 30 L. Ed. 810; Hames v. Brownlee, 63 Ala. 277; Young & Co. v. Cureton, 87 Ala. 727, 6 South. 352, 4 Enc. Ev. pp. 12, 13. For the same reason the question to said witness, “In your judgment, what was the injury or damage done to the land?” and the question, in the same words, to the witness Green, plainly, on their face, called for illegal testimony; and the questions and answers should have been excluded. There was no error in allowing the witness (plaintiff) to testify in regard to expense which he incurred in trying to keep the stock out of his land. This is a proper item of damage, provided the plaintiff could not recover, in all, more than the amount of damage which he would have been entitled to, had not the expense been incurred. — St. L. & S. F. R. v. Ritz. 33 Kan. 404, 6 Pac. 533, 536; 13 Cyc. 154, note 85.

The court erred in admitting the estimates of damages, made in writing by several parties, and the error was apparent, because, first said papers were admitted as evidence, and not merely to be referred to by the witness as a memorandum to refresh his own memory, and such ex parte papers are not admissible; second, the questions and answers, in connection with the admission of said papers, called for the opinion of the witness as to the amount of damage, which, we have seen, was improper; third, even as memoranda they were not shown to have been made at the time of the examination of the crops; and fourth, the witness did not make the necessary statement to render the papers themselves admissible, nor did he state that he had an independent knowledge of the matters therein contained to make them admissible as memoranda. — Battles v. Tollman, 96 Ala. 403, 11 South. 247. That part of the oral charge of the court, referred to by the appellee, did not cure this error, but merely stated that the memoranda were not conslusive evidence.

The court erred in overuling the objection to the question to the plaintiff, as a witness, “What would have been a fair rental value in money of the 40 acres you were prevented from cultivating?” The witness had testified that he had this land prepared for cultivation, and was prevented from cultivating it by the depredations of the stock. The measure of his damage was what he lost, not the rental of the land.

At the conclusion of the testimony the defendant “moved the court to exclude all the testimony in reference to the destruction or injury to the crops” of the tenants, and “all testimony as to the damage suffered by” them, which motion was overruled. There Avas no error in this. The testimony shoves that the terms of renting to said tenants Avere that the landlord was to be paid one-third of the corn and one-fourth of the cotton made by said tenants respectively, so that to the extent of one-third the plaintiff was damaged by the destruction of the crops. While it is true that the title to the said one-third was not in the plaintiff, yet the direct result of the depredation Avas to defeat plaintiff’s recovery of rent to that extent.

The court in its oral charge instructed the jury “that they could take any portion of the year to determine the value of the crops at the time they were destroyed.” This was error. While various ways have been suggested by different courts, such as ascertaining what the probable cost would be of carrying the crop on to maturity and subtracting said amount from the probable value of the crop when matured, etc., yet these are but methods of ascertaining what is recognized as the better rule, to wit, that the measure of damages is the value of the crop at the time it is destroyed. — 4 Southerland on Damages (3d Ed.) § 1023; 13 Cyc. 153; Gresham v. Taylor, 51 Ala. 505; Gulf, etc., Ry. v. Nicholson (Tex. Civ. App.) 25 S. W. 54. Prom what has been said in regard to the rental value of the 40-acre tract which the plaintiff had prepared for cultivation, it results that the court erred in instructing the jury that the plaintiff could recover the reasonable rental value of said 40 acres.

The court erred in instructing the jury that the plaintiff could recover for that portion of said lands having-crops of grass thereon what the same would have .brought for hay and pasturage. There was no evidence tending to.show what said land would have brought for hay and pasturage. On the contrary, the plaintiff had elected to prove what the grass destroyed was worth.

The court erred, in its oral chargé, in instructing- the jury that they were to consider the injury and damage to the entire crops, and not only to one-third thereof. The plaintiff could not recover more than the amount of his damage, which covered only one-third of the crops. It cannot be said that the jury really assessed the damages at only the value of one-third of the crop, because their verdict Avas much less than the majority of the witnesses testified to as the damages. The witnesses were not in harmony on this matter, and the jury may have thought that the witness Avho placed the damages at much less than the others was entitled to more credit.

The court, at the request of the plaintiff, charged the jury that, if they believed the evidence, they should.find the issue in favor of the plaintiff, for damages found, “together with interest from the time of such depredation.” The appellant insists that it Aims erroneous to give this charge, because interest is not recoverable in this action. This is a matter that has received a great deal of consideration at the hands of the courts in various jurisdictions, Avith different results as to the right to recover interest in actions of tort. Several jurisdictions, treating the matter logically, hold that, as interest, at common law, Avas not recoverable at all unless there was a contract providing for it, the statute is the only authority for it, and Avhere the statute provides for interest only in actions on contracts, expressed or implied it cannot be recoAwred in an action of tort until the damages haAre been ascertained and reduced to judgment. — City of Chicago v. Allcock, 36 Ill. 348; Greeley S. L. & P. Ry. v. Yount, 1 Colo. App. 189, 42 Pac. 1023; Pittsburgh, Ft. W. & C. Ry. v. Swinney, 97 Ind. 586, 596, 597; New York, etc., R. v. Estill, 147 U. S. 591, 619, 622, 13 Sup. Ct. 444, 37 L. Ed. 292. Others hold that while, in such cases, interest is not recoverable as a matter of right, yet the jury may, in their discretion, take the delay into consideration and adopt the rate of interest as a measure of damages for such delay, though the judge cannot direct them to add interest. — Richards v. Citizens’ N. Gas. Co., 130 Pa. 37, 40, 41, 18 Atl. 600; Pittsburgh, Ft. W. & C. Ry. v. Swinney, Ex’r, 97 Ind. 586, 596, 597; Lawrence R. R. Co. v. Cobb, 35 Ohio St. 94, 98, 99; Walrath v. Redfield, 18 N. Y. 457, 462; Mairs et al. v. Manhattan R. E. Ass’n, 89 N. Y. 498, 507; Duryea v. Mayor, etc., of N. Y., 96 N. Y. 478, 409; Parrott v. Knickerbocker, etc., Co., 46 N. Y. 361-369. Still others alloAV it as a matter of right. — Taylor et al. v. Bay City St. Ry., 101 Mich. 140, 59 N. W. 447, and cases cited; Gates v. Comstock, 113 Mich. 127, 71 N. W. 515, 516; Everett v. Gores, 92 Wis. 527, 66 N. W. 616; Parrott v. Housatonic R. R., 47 Conn. 575. see, also, generally, 2 Sutherland on Damages, pp. 969, 974, § 355; 4 Sutherland on Damagges, § 1026; 22 Cyc. pp. 1475, 1500, et seq.; 16 Am. & Eng. Ency. Law, pp. 1027, 1031; 2 Red-field on Negligence (5th Ed.) § 747.

In this state out court has stated that, “whenever one; party has a legal right to recover of another a debt or damages as due at a particular time, he is entitled to interest as an incident from the maturity of the demand until the trial, unless some rule of law declare otherwise.” — Stoudenmeler v. Williamson, 29 Ala. 558, 569. That case, however, and those therein cited, were actions on contract. Our court has recognized the right to recover interest in actions of trover, stating that the object is “to give to the plaintiff a full indemnity for the injury sustained by the wrongful conversion, * * * and to prevent the defendant from deriving any benefit from his own wrongful act,” and also stating that there are exceptions to the rule.' — Williams, Adm'r v. Crum, 27 Ala. 468, 470. The rule of interest in cases of trover is recognized in other cases. — Ewing v. Blount, 20 Ala. 694; Curry v. Wilson, 48 Ala. 638; Linam v. Reeves, 68 Ala. 89, 91; Burks v. Hubbard, 69 Ala. 380, 384; Sharpe & Son v. Barney, 114 Ala. 361, 362, 363, 21 South. 490; Birmingham Min. R. v. Tenn. C. I. & R. R. Co., 127 Ala. 138, 147, 28 South. 679; Brooks v. Rogers, 101 Ala. 112, 126, 13 South, 386. This court has also stated that, in a case claiming damages for stock killed by a railroad, the jury should allow interest from the date of the killing.— Ga. Pac. R. R. Co. v. Fullerton, 79 Ala. 299, 303; A. G. S. R. R. Co. v. McAlpine, 75 Ala. 114, 121. The case of Bradley et al. v. Harden, Adm’r, 73 Ala. 70, was an action against the sureties on the bond, although the liability was claimed to have arisen from the conversion hy the principal. In Fail’s Achn’r v. Presley’s Adm’r, 50 Ala. 342, the action was trespass, and the court says that the general rule is “that where trespass is brought for the destruction of personal property, and no circumstances of aggravation are shoAvn, the action is to he regarded as one of trover, and the value of the property, with' interest on such value, furnishes the rule for the measure - of damages, because, if the owner * * * gets the value of the property * * * and interest, that is, in effect, a sale.” — Page 346. In a case wherein the only matter for decision was whether a claim against a ferry keeper and the sureties on his bond for damages resulting from negligence in operating the ferry was provable in bankruptcy, Judge Stone, in delivering the opinion ot this court, said that the measure of recovery Avas “the amount of the injury sustained, to AAhich interest may be added.”- — Borden v. Bradshaw, 68 Ala. 362. The case of Jean v. Standiford, 39 Ala. 317, in which interest Avas not alloAved, is placed distinctly on the ground that the -suit was for a statutory penalty; and the case of Glidden v. Street, 68 Ala. 600, rests entirely on that- case.

While there is much force in the arguments brought forward hy other courts AAhich have held otherAvise, yet Ave feel bound hy the decisions of our own courts, especially those in the cases of Railroad v. McAlpine, 75 Ala. 113, and Railroad v. Fullerton, 79 Ala. 298, to hold that where the damages claimed are for property which has been destroyed or injured, Avhich has an ascertainable money value, it is proper to instruct the jury to add, to the damage ascertained, interest from the date when the injury Avas done. It is true that some of the cases which alloAv interest provides that it shall commence only from the date when the suit is commenced; hut, if the plaintiff is entitled to interest at all, Ave are unable to sec upon Avliat principle it should be postponed from the time when the right of action accrued to the commencement of the suit.

There Avas no error in the refusal to give the general charge in favor of the defendant, nor in refusing to give the other charges requested by the defendant.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Anderson and Denson, JJ., concur.