MAYFIELD, J.
— Appellant sued appellee on two promissory notes, which, with interest, aggregated $1,-637, as to which there was no dispute or contest. Appellee interposéd two special pleas of set-off, claiming damages to his growing crops, fruit trees, etc., on account of sulphurous fumes escaping from plaintiff’s fertilizer factory, which was operated near defendant’s farm. The damages thus claimed were unliquidated, but no question is raised as to the pleadings; the real dispute was as to the amount of damages suffered in consequence of the alleged wrongs complained of, in allowing the fumes to escape and to injure and destroy the defendant’s crops, trees, etc.
A great many objections were interposed by the plaintiff to questions propounded to defendant’s witnesses, which sought to elecit answers going to show the damages and the amount thereof, as to both the crops and the trees, and these objections were followed up by mo[251]*251tions to exclude the answers, and exceptions were reserved as to the adverse rulings. The questions .raised on this appeal, as to these rulings on the evidence, may be classified as follows: The court allowed Avitnesses who had qualified as expert witnesses on farming and agriculture, as to the particular land in question, to testify as to what amount of crops the defendant would have produced on the land but for the alleged fumes; the amount actually produced on the land in question with the fumes present, the value of the respective crops produced during the season in question, and the amount produced on land similar to that in question, during the same season, under like mode of cultivation, and Avith the same kind of fertilizers. We do not think there was any reversible error as to any of these rulings on the evidence. The Avitnesses were shown to be experts in that line of business, and familiar with the land in question, the mode of cultivation, and the amount and kind of fertilizers used; the season had passed Avhen they testified ; they knew what the land actually produced, with the fumes, and what similar lands, under like conditions, had produced without the deleterious effect of the fumes; and they knew what the prices of the various products were in the market. In fact, the mode followed by the trial court would be the only mode which would be practicable to ascertain or to* prove the amount of the damages (if any there, were) in consequence of the fumes complained of. There was not an entire destruction of the crops at one time, as by overflow or by depredation of stock; hut the injury was almost continuous, or Avas at least recurring whenever the factory was in operation and the fumes. were being emitted, and the chief damages claimed were in the diminished yield on account- of the fumes. For this reason the rule is different from that governing in cases [252]*252where there is a complete destruction of the crops by live stock or by floods. The cultivation and care had to continue through the entire season, as if there had been no fumes or consequent’ damages.
The measure of damages was, of course, the difference in the yield and the price of the crops with, and without, the presence of the fumes complained of; and the evidence complained of was admissible for the-purpose of showing these necessary elements which entered into the amount of damages suffered, if any there were. The evidence as to the amount produced and as to the price was not offered as showing the measure of damages, but as furnishing a basis from which to. ascertain their amount.
Questions similar to these were raised in the case of Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52, where the damage flowed from the decreased production of land consequent upon the failure of the plaintiff to furnish fertilizers as agreed. The plaintiff in that case, as in this case, sued for the price of the fertilizer furnished, and the defendant pleaded set-off for diminished production of crops, on account of the plaintiff’s failure to furnish the full amount of the fertilizer agreed to be furnished ; and the trial court declinéd to allow proof to be made, such as was made and is complained of in this case. This court reversed the trial court on account of such rulings. The court, through Somerville, J., said: “We would not be willing to say that the damages here complained of by the defendant, Bell, by way of iost profits, would have been recoverable if their ascertainment had been left to mere conjecture. The amount of cotton, or other crops which land produces, is dependent upon so many varying contingencies as to render it ’very indeterminate. It will vary with the seasons, the adaptation of soil and climate, and its comparative ex[253]*253emption from the ravages of worm or other destructive insects. Speculative opinions of witnesses as to the probable influences of these operative causes would be a poor criterion for the measure of values. — Wilkinson v. Ketler, 59 Ala. 306. In this case, however, these difficulties are entirely removed. The character of the season is absolutely known. So is the precise effect of the fertilizer used during this particular season. No speculation is needed as to how much rain and how much sunshine were requisite to produce a given amount of crops to the acre, nor as to the probable effect of the fertilizer upon different kinds of soil, or even the proportion of it best suited to the land, and therefore what would necessarily have been produced on the remainder, which is shown to have been in' precisely the same state of cultivation and similar in quality of soil. The rulings of the court were opposed to this view, and were erroneous.”
In the cases of Bigbee Fertilizer Co. v. Scott, 3 Ala. App. 385, 58 South. 86, questions similar to these were raised, and the same trial court ruled as ruled in this case. His rulings were affirmed by the Court of Appeals, and we think properly so.
' As shown by notes to cases in 140 Am. St. Rep. 309; 27 L. R. A. (N. S.) 168-173; 12 L. R. A. (N. S.) 267, the decisions are not without conflict as to the proper measure of damages and the mode of proving the same. In the note, 140 Am. St. Rep., it is said: “The questions of the measure of damages for injuries to growing-crops and of the manner of estimating damages in such cases are not altogether devoid of difficulty. The courts are not agreed upon the subject, and the cases are in more or less confusion. This confusion arises partly from a difference in the rules applicable to the measure of damages for injuries to growing crops, and in the [254]*254various holdings of the courts as to what evidence is admissible in such cases, and partly from the way in which various propositions of law as well as of fact are stated. These differences, added to the inherent difficulty of estimating the value of a growing crop, create some misgiving in the formation of general rules respecting the subject. There is no1 doubt, however, that compensation for the real injury is the purpose.of all remedies. Such does justice to both parties. The inquiry should therefore be, in each case how much was the plaintiff injured by the loss or destruction of his crop? This proposition is' undisputed, but the courts, in arriving at the value of a growing crop, resort to several methods of computation, and either or all combined may afford a fair basis.”
In the case reported in Sayres v. Missouri Pac. Ry. Co., 82 Kan. 127, 107 Pac. 642, 27 L. R. A. (N.
Free access — add to your briefcase to read the full text and ask questions with AI
MAYFIELD, J.
— Appellant sued appellee on two promissory notes, which, with interest, aggregated $1,-637, as to which there was no dispute or contest. Appellee interposéd two special pleas of set-off, claiming damages to his growing crops, fruit trees, etc., on account of sulphurous fumes escaping from plaintiff’s fertilizer factory, which was operated near defendant’s farm. The damages thus claimed were unliquidated, but no question is raised as to the pleadings; the real dispute was as to the amount of damages suffered in consequence of the alleged wrongs complained of, in allowing the fumes to escape and to injure and destroy the defendant’s crops, trees, etc.
A great many objections were interposed by the plaintiff to questions propounded to defendant’s witnesses, which sought to elecit answers going to show the damages and the amount thereof, as to both the crops and the trees, and these objections were followed up by mo[251]*251tions to exclude the answers, and exceptions were reserved as to the adverse rulings. The questions .raised on this appeal, as to these rulings on the evidence, may be classified as follows: The court allowed Avitnesses who had qualified as expert witnesses on farming and agriculture, as to the particular land in question, to testify as to what amount of crops the defendant would have produced on the land but for the alleged fumes; the amount actually produced on the land in question with the fumes present, the value of the respective crops produced during the season in question, and the amount produced on land similar to that in question, during the same season, under like mode of cultivation, and Avith the same kind of fertilizers. We do not think there was any reversible error as to any of these rulings on the evidence. The Avitnesses were shown to be experts in that line of business, and familiar with the land in question, the mode of cultivation, and the amount and kind of fertilizers used; the season had passed Avhen they testified ; they knew what the land actually produced, with the fumes, and what similar lands, under like conditions, had produced without the deleterious effect of the fumes; and they knew what the prices of the various products were in the market. In fact, the mode followed by the trial court would be the only mode which would be practicable to ascertain or to* prove the amount of the damages (if any there, were) in consequence of the fumes complained of. There was not an entire destruction of the crops at one time, as by overflow or by depredation of stock; hut the injury was almost continuous, or Avas at least recurring whenever the factory was in operation and the fumes. were being emitted, and the chief damages claimed were in the diminished yield on account- of the fumes. For this reason the rule is different from that governing in cases [252]*252where there is a complete destruction of the crops by live stock or by floods. The cultivation and care had to continue through the entire season, as if there had been no fumes or consequent’ damages.
The measure of damages was, of course, the difference in the yield and the price of the crops with, and without, the presence of the fumes complained of; and the evidence complained of was admissible for the-purpose of showing these necessary elements which entered into the amount of damages suffered, if any there were. The evidence as to the amount produced and as to the price was not offered as showing the measure of damages, but as furnishing a basis from which to. ascertain their amount.
Questions similar to these were raised in the case of Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52, where the damage flowed from the decreased production of land consequent upon the failure of the plaintiff to furnish fertilizers as agreed. The plaintiff in that case, as in this case, sued for the price of the fertilizer furnished, and the defendant pleaded set-off for diminished production of crops, on account of the plaintiff’s failure to furnish the full amount of the fertilizer agreed to be furnished ; and the trial court declinéd to allow proof to be made, such as was made and is complained of in this case. This court reversed the trial court on account of such rulings. The court, through Somerville, J., said: “We would not be willing to say that the damages here complained of by the defendant, Bell, by way of iost profits, would have been recoverable if their ascertainment had been left to mere conjecture. The amount of cotton, or other crops which land produces, is dependent upon so many varying contingencies as to render it ’very indeterminate. It will vary with the seasons, the adaptation of soil and climate, and its comparative ex[253]*253emption from the ravages of worm or other destructive insects. Speculative opinions of witnesses as to the probable influences of these operative causes would be a poor criterion for the measure of values. — Wilkinson v. Ketler, 59 Ala. 306. In this case, however, these difficulties are entirely removed. The character of the season is absolutely known. So is the precise effect of the fertilizer used during this particular season. No speculation is needed as to how much rain and how much sunshine were requisite to produce a given amount of crops to the acre, nor as to the probable effect of the fertilizer upon different kinds of soil, or even the proportion of it best suited to the land, and therefore what would necessarily have been produced on the remainder, which is shown to have been in' precisely the same state of cultivation and similar in quality of soil. The rulings of the court were opposed to this view, and were erroneous.”
In the cases of Bigbee Fertilizer Co. v. Scott, 3 Ala. App. 385, 58 South. 86, questions similar to these were raised, and the same trial court ruled as ruled in this case. His rulings were affirmed by the Court of Appeals, and we think properly so.
' As shown by notes to cases in 140 Am. St. Rep. 309; 27 L. R. A. (N. S.) 168-173; 12 L. R. A. (N. S.) 267, the decisions are not without conflict as to the proper measure of damages and the mode of proving the same. In the note, 140 Am. St. Rep., it is said: “The questions of the measure of damages for injuries to growing-crops and of the manner of estimating damages in such cases are not altogether devoid of difficulty. The courts are not agreed upon the subject, and the cases are in more or less confusion. This confusion arises partly from a difference in the rules applicable to the measure of damages for injuries to growing crops, and in the [254]*254various holdings of the courts as to what evidence is admissible in such cases, and partly from the way in which various propositions of law as well as of fact are stated. These differences, added to the inherent difficulty of estimating the value of a growing crop, create some misgiving in the formation of general rules respecting the subject. There is no1 doubt, however, that compensation for the real injury is the purpose.of all remedies. Such does justice to both parties. The inquiry should therefore be, in each case how much was the plaintiff injured by the loss or destruction of his crop? This proposition is' undisputed, but the courts, in arriving at the value of a growing crop, resort to several methods of computation, and either or all combined may afford a fair basis.”
In the case reported in Sayres v. Missouri Pac. Ry. Co., 82 Kan. 127, 107 Pac. 642, 27 L. R. A. (N. S.) at page 175, it is said by the Kansas court: “Such a crop has an actual and also potential existence, and a fair valuation can be made by witnesses of experience who are acquired with the character of the land on which it is growing, and the product derived from such land when properly cultivated, the ordinary course of agriculture and the climatic conditions of the region, the market price of ripened grain or product in the vicinity when mature, and also how far the crop had progressed toward maturity when injured or destroyed. Consideration may be taken of these and perhaps other conditions in estimating the value of the crop, but these are not measures of value, but only evidence to enable a jury to determine the value of the crop at the time and place of the injury and destruction. The owner is entitled. to recover the actual loss which he sustained, and it was an immature crop, subject to many contingencies and open to attack by numerous enemiés, and not a ma[255]*255ture crop, which, he lost. While the authorities are generally agreed that the damages must be measured as of the time of the injury and loss, there is some variety of expression as to the methods of reaching that result. Some are to the effect that it is the actual value at the time of the loss, and others that it is the market value of the crop at that time. Some say it is the value of the crop when destroyed, considered in connection with the value of the right which the owner had to mature and gather it; others, that a proper criterion is the value when matured after deducting for future contingencies and the expenses for cultivation and care. Some arrive at the result by tailing the difference in the value of the land before and after the injury or loss to the crop, while others have gone to the extent of holding that the rental value of the land for the season is the basis for computing the loss. These authorities are gathered in an elaborate note to Teller v. Bay & River Dredging Co., 12 L. R. A. (N. S.) 267.”
In the case reported in 151 Cal. 209, 90 Pac. 942, 12 L. R. A. (N. S.) 267, 12 Ann. Cas. 779, it is said, in conclusion, by the California court, quoting from other courts: “ ‘In cases of destruction of growing crops, it is proper and important to introduce and admit evidence showing the kind of crops the land is capable of producing, the kind of crops destroyed, the average yield per acre of each kind on the land in dispute, and on other similar lands in the immediate neighborhood, cultivated in like manner, the stage of growth of the crops, at the time of injury or destruction, the expenses of cultivating, harvesting, and marketing the crops, and the market value at the time of maturity, or within a reasonable time after the injury or destruction of the crops And, proceeds that (Utah) court, ‘while all such evidence may be considered by the jury in deter[256]*256mining the amount of damages, if any, still the true measure of compensation is the value of the crops in the condition they were in at the time of their injury or destruction.’ In Shoemaker v. Acker, 116 Cal. 239, 48 Pac. 62, the introduction of such evidence as the means of arriving at value is distinctly approved, and the same proposition is recognized as containing the true element for determining damage in Ellis v. Tone, 58 Cal. 289. And that such is the generally accepted rule is abundantly established. — 8 Am. & Eng. Enc. Law, p. 330; Jones, Ev. § 384; Sutherland, Damages, §§ 120, 1023; Sedgw. Damages, § 191.”
We do not think that there was any error in the rulings of the trial court as to the evidence. The plaintiff was not entitled to the affirmative charge requested, as to any one of the elements of damages. There was evidence sufficient to warrant the jury in finding-some damages as to each of the items requested.
We are of the opinion, however, that the trial court erred to the prejudice of appellant in not granting a new trial. We are averse to reversing trial courts for the granting or the refusing of new trials, and do so only under the rules announced in Cobb v. Malone, 92 Ala. 630, 9 South. 738.
In this case, however, we think it was made to appear beyond doubt that the verdict was a quotient verdict, that it was agreed on in advance, and that the agreement was carried out to the letter and to a cent. This, we think, is made clearly to appear by the affidavit of the attorney Williams, and it is not rebutted by the affidavit of the juror Powell — which affidavits the reporter will set out in his report of the case. This being true, it was an improper verdict, and the trial court, on appellant’s motion, should have set it aside and awarded a new trial.- It was shown by the evidence [257]*257in support .of this motion that the jurors each wrote down the amount of damages which he thought the defendant was entitled to, that these several amounts were added together and the sum divided by the number of jurors, and that the quotient was accepted and adopted as the amount of the damages, even to a cent. This was shown by scraps of paper found in the jury room in which the deliberations were had, and soon after the jury had retired and before another jury had entered, and by the fact that the writing and the figures were in the handwriting of the jurors or of the foreman.
This evidence Avas attempted to be avoided by the affidavit of one of the jurors, but his evidence was ineffectual for this purpose. In fact, if his evidence is to be considered, it proves beyond doubt that the verdict Avas a quotient verdict, and that it was unanimously agreed on in advance. The testimony of the juror (if it can be called such) Avas that he did not feel bound to adopt the average so ascertained, that if it had not been just and fair he would not have ■ adopted it, and that he did not consider the others bound by it, but that they had a right to object to it, and, in his opinion, would have done so if they had not considered it a fair and just verdict. He, of course, could not testify as to the cognovit of the other jurors, nor as to his own intentions further than as shown by his acts. These acts were that he and the other jurors agreed in advance to a quotient verdict, and that they carried out the agreement to a letter, so far as practicable, even to a cent, and that they returned the verdict so agreed upon in advance.
Of course the jurors thought it was fair and just to do as they did; no one suspects that they intended evil or harm; but it was unlawful and not authorized, and, as has been repeatedly decided by this and other courts, such a verdict entitles either party to a new trial, if [258]*258knowledge of its character be brought home to the trial judge in support of a timely motion for a new trial.
The case in hand is a stronger one, for a new trial, than was the Williams Case, 113 Ala. 620, 625, 21 South. 328, 329, wherein it was said: “A true verdict is the voluntary conclusion of the jury after deliberate consideration, and it is none the less a true verdict because the respective jurors may have been liberal in concessions' to each other, if conscientiously and freely made. A verdict is not a true verdict, the result of any arbitrary rule, or order, whether imposed by themselves or by the court, or officer in charge. If a jury should agree in advance that their verdict should be the result or quotient of a division by 12 of the sum total of all the jurors’ separate assessment, a verdict brought about by such an agreement, ought to be set aside. The principle is fully discussed in 28 Am. & Eng. Encyc. of Law, pp. 267-272, and notes. Some of the amounts are placed as low as $25. Others range to $1,500. If jurors should bind themselves to return a verdict, the result of such a method, it is apparent that one or two jurors, by resorting to extremes, could force an unfair verdict. The question for determination by the court is whether, under the rules Ave have declared, a reasonable and sat-' isfactory presumption arises from the facts stated that the verdict in the case was the result of such an agreement. It is insisted that there is no evidence that the memorandum was made by the jury, and it is further insisted that the memorandum may have been made after the verdict was agreed upon. These are possible conclusions, but they are not probable or reasonable. The memorandum Avas not made when the paper Avas delivered to the jury. No one had any right to the papers but themselves. - It was made before the jury parted with the possession, and Avas in the hands of the fore[259]*259man, and returned by Mm with the verdict into court. A conclusion that the memorandum was made by any person other than a juror, or made after the jury had agreed upon their verdict, or that the verdict was not the result of an agreement, requires too great a draft upon human credulity. We are of the opinion that the verdict was not a true verdict, and should have been set aside. An order will be here made to that effect, and the cause remanded.”
The evil effects of a quotient verdict cannot be cured by agreeing thereafter to a slightly different verdict, if it appears that the agreement made in advance entered into or induced the result; nor can a quotient verdict be cured by the jury subsequently adopting it, or its equivalent, as their verdict, if the agreement entered into or controlled the subsequent adoption of the verdict returned. In a Texas Case (Texas Midland R. Co. v. Atherton [Tex. Civ. App.] 123 S. W. 704), the motion for a new trial was submitted on an agreed statement of facts. The court in that case said: “It will be seen from the agreement that the jury determined to ascertain beforehand the amount to assess by lot, and that the result should be their verdict. After the lot was cast, there arose a slight difference between them as to the exact amount of the quotient. The difference as to the amount of the quotient being slight, it was moved that the amount be fixed at $6,000. This, to' oiir minds, was clearly an agreement to fix the amount of the quotient that had been arrived at by lot as their verdict, as had been agreed upon between them beforehand, and was not arriving at a verdict by legitimate methods. In Railway Co. v. Hawkins [50 Tex. Civ. App. 128] 109 S. W. 221, we said: ‘The test in such cases is: Did the jury agree to be bound beforehand by the result of such proceedings? If so, the verdict will be set aside. [260]*260But if the result was reached, aud no agreement had beforehand to abide by it, and it was afterwards agreed upon as their verdict, it will be sustained.’ The verdict in this case, tested by the foregoing rule, is illegal and cannot stand.”
In Whisenant v. Shawe (Tex. Civ. App.) 141 S. W. 146, the quotient was $1,758, and the jury, abating $8 of that amount, returned $1,750 as their verdict. The court held the verdict to be illegal, saying: “The quotient obtained by the division as agreed upon seems to have been $1,758, but some of the jurors said, ‘Cut that off (the $8), and just make it even $1,750,’ to which all agreed, and the verdict, as returned and approved by the court, was, ‘Account, $751.18, damage $1,750.’ Another juror, testifying upon the hearing of the motion, said, ‘It was agreed that each man should put down some amount, add them together, and divide by 12, and that would be the verdict on damages.’ Yet another juror, testifying on the point said, ‘The votes were to be added, the amount divided by 12, and the result was to be the verdict, the damages allowed. The result was $1,758 and something; and some one — I do not know who — suggested that we just make it even money, $1,-750, and it was put down $1,750. * * *’ Without quoting further from the testimony, we think it is not to be doubted that it was 'substantially agreed upon before the division made that the jury could be bound by the result. * * *• We attach no weight, as to indicating otherwise, than the fact that the $8 was rejected and the verdict returned in the even amount shown.”
In Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252, 88 Am. St. Rep. 232, the court said: “It appears from this affidavit that it was agreed by the jury that each juror should give the sum to which he thought the plaintiff below was entitled, and that the sum of these amounts [261]*261should, he divided hy the number of jurors; the quotient would be the amount of plaintiff’s verdict. This was done; the amount so found was nearly $.300, but for the purpose of making the amount an even sum it was increased to $300. This verdict cannot be sustained (citing authorities). After the amount was found by marking, aggregating, and dividing there was no reconsideration. The addition to that amount was not made after a further consideration and the decision of the cause upon its merits, but was for the one purpose of making an even amount. The law demands of each juror an honest consideration of the rights of the parties litigant and the exercise of his best judgment, guided by the law and the evidence of the case. A verdict reached in any other way should be set aside.”
We do not think the cases of B. R. L. & P. Co. v. Moore, 148 Ala. 115, 42 South. 1024; B. R. L. & P. Co. v. Clemons, 142 Ala. 160, 37 South. 925; Eufaula v. Speight, 121 Ala. 613, 25 South. 1009, support the ruling of the trial court. The effect of those decisions was not to uphold quotient verdicts. The verdicts in those cases ivere allowed to stand, because of failure of proof to show that they were quotient verdicts, or verdicts agreed on in advance.
For the error indicated the judgment of the lower court is set aside, and the cause remanded for a new trial.
Beversed and remanded.
Dowdell, C. J., and Anderson and de Graffenried, JJ., concur.