White v. Stoner , 1885 Mo. App. LEXIS 376 ( 1885 )

Opinion by

Ellison, J.

The objections should have been sustained to the question asked of the witnesses Crouse and McChesney, and the last question asked Kent.

There are matters embraced in the question put to the witness Crouse, about which he could properly give his opinion as to the value, and matters about which his opinion as to value would be improper; but there is nothing in the questions propounded to either of the witnesses authorizing a statement as to what the damages would be.

There are also matters propounded, in which different elements of damages enter, and different rules for the ascertainment of that damage exist.

It was decided by this court, at present term, in the case of Belch, Executor, v. The Missouri Pacific Railway Company, that it was not competent for a witness to state the amount of damages a party has suffered; The witness should be confined to the facts. As is well said in the case of Fish v. Dodge (4 Denio 311), “it was. the business of the witness to state facts, and the jury to assess the damages.” “The opinions of witnesses as. to damage or loss are not competent evidence, even in cases where the damages claimed are a proper subject of recovery. The facts, and all the facts, going to show what the damages would be, should be given in evidence; and the jury must then draw their conclusion from the testimony of the witnesses as to the amount of the' damage.” Giles v. O’Toole, 4 Barbour 261. So in the case of Moorehouse v. Mathews (2 Comstock 514), the following question was held improper: “ How much, in your opinion, was the damage sustained by the plaintiff in consequence of feeding the cattle upon the poor hay, instead of that agreed upon ? ”

The court says “the general rule upon the subject is that witnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from the facts, whether known to themselves or derived from the testimony of others. It is the special duty of the jury to draw conclusions, and not of the witness.” 1 Phil. Ev. 290. The exceptions to the general rule are confined to questions of science, trade, and a few others of the same nature, but can not be extended to a case like the one under discussion.

It is allowable for a witness who deals in, or is acquainted with, the value of cattle or horses, to testify as to the value of such animals, because he then speaks of facts, as derived from the market price of such property. In such case, his testimony would not be opinion, it would be knowledge.

The court says, in the case of Norman v. Wells (17 Wendell 136-163), that “ no case was cited by the counsel for the plaintiff where evidence of opinion as to the amount of damages sustained has ever been sanctioned as legal. The amount of indemnity, where it is not capable of being reached by computation, is always a -question for the jury. If - there be any rule without exception, it is this ; and I have been unable to find any instance where- the opinion of witnesses has been received.” Though it is the rule that an opinion of a witness shall not be received, as to damage or otherwise, there are familiar exceptions — the opinion of experts in science or trade ; opinions as to handwriting, are notable exceptions, though not all. Opinions as to value of merchandise or property, such as of the value of horses or cattle, are not by some courts deemed an exception, for the reason that it is not believed such evidence falls within the rule. For, as is said in the case of Moorehouse v. Mathews, supra, the witness is speaking of facts, as derived from the market price. Among the exceptions would be that class of cases, “when the subject of the inquiry is so indefinite and general in its nature as not to be susceptible' of direct proof, the opinions of witnesses are admissible. If the witness has not the means of personal observation, and the facts and circumstances upon which he bases this conclusion are incapable of being detailed so intelligibly as to enable any one but the observer himself to form an intelligent conclusion from them, he may add his opinion.” Eyerman v. Sheehan et al., 52 Mo. 221.

Opinions as to value of any species of property, if such may be called opinions, are admissible from witnesses acquainted with values of such property. But it will be observed that in this case it is not value which is asked for, but damage.

Damage is a word of quite broad signification in the minds of many who are not familiar with the rules of law, confining its compensatory character to its proximate cause. A witness stating what the damage is in a given case, is in too broad a field of individual conjecture for the safety of justice under the forms of law.

We will not be understood as saying there are no instances in which a witness may not give his opinion as to the damage done. An expert might be competent to testify, in the absence of any other satisfactory mode of proof, as to the amount of damage; but there is nothing in the case before ns to bring it under such necessity.

All that portion of the evidence relating to the fencing, condition of the house, crib, etc., were matters about which witnesses should state facts, and let the jury, under direction of the court, estimate the damage. The value of the fencing, the cost of material, the amount needed, the price of labor, etc., might well be stated by witnesses acquainted with the subject matter. If the fence was totally destroyed, the cost of a new one of similar character, allowing for the difference between the new and the old, would be the measure of damages. If the fence was injured, the expense of repairing it so as to place it in as good condition as before the injury, would cover the damages. So the measure of damage done to the house would be the cost of repairing the injury done. If a “window-pane is broken out,” the cost of another of the same size and quality, and the cost of putting it in, would be the measure of damages. These are propositions so plain, equitable, and just as to be self-evident. There could be injuries to a building where, perhaps, the opinion of a witness, competent in that behalf, could be properly asked as to the amount of damage; where, from the nature of the injury, it would be irreparable, and no complete or substantial restoration to its former condition could be had. In such case, a skilled builder or architect could properly give his opinion as to the amount of damage; but, even then, he should state the facts, and all the facts, upon which he bases his opinion.

The injury to the orchard and the shade and ornamental trees calls for a measure of damages altogether different from that of the cutting or destruction of ordinary timber. In speaking of the subject of destruction of fruit trees, Johnson, J., in the case of Whitbeck v. Railway Company (36 Barbour 644), says : “The true rule I conceive to be this, that if the thing destroyed, although it is a part of the realty, has a value which can be accurately measured and ascertained without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing thus destroyed, and not for the difference in value of the land before and after such destruction. There is no intrinsic difficulty, as I conceive, in estimating the value of a fruit tree growing upon land, although it has strictly no market or commercial value, as a tree, independent of the land which sustains it. * * * But it does differ from trees which are usually converted into timber or firewood, and which are frequently sold as they stand, for that purpose, or nursery trees which are grown for market. The difference is this : in the one case the value consists chiefly in the thing itself, as a convertible and marketable commodity, while in the other the value consists chiefly in the quality and quantity of its average annual products, and is capable of being leased, as much as a field or a dwelling.” And in this respect it was competent for the witness to give his opinion as to the value of the trees, as was held in the case, further on in the opinion. This we deem a fair and just way of fixing the damage in this case.

The cutting of shade or ornamental trees may be an injury of far more consequence than the mere marketable value of the timber. Trees in special situations or locations are not only a great ornament, but are sources of health and comfort to the owner. The market value of the lumber would be poor recompense indeed for the loss of a majestic elm that had shaded and sheltered the homestead for generations. The measure of damages in such a case is “not necessarily and exclusively the value of the wood and timber removed, but the solid and permanent injury to the inheritance.” Harder v. Harder, 26 Barbour 409. In speaking of the same subject, the court, in the case of Van Deusen v. Young (29 Barbour 9), says: “It only remains to consider the objections to testimony. They are all substantially similar, to-wit, that evidence of the comparative value of the premises, with or without the wood and timber, was improper; first, as furnishing uo appropriate criterion of damage; and, second, as founded on merely speculative opinions of the witnesses. But I think it was the proper test of an injury to the inheritance. * * * Surely the damages would not be in all cases accurately measured by the market value of the wood or tipiber when cut. The trees might be a highly valuable appendage to the farm, for the purposes of shade or ornament; there might be a very scanty supply for a farm of that size; or for other reasons they might have a special value, as connected with the farm, altogether independent of, and superior to, their intrinsic value for purposes of building or fuel. As well might you remove the columns which supported the roof or some part of the superstructure of a splendid mansion, and limit the owner in damages to the value of these columns as timber or cord wood, as to adopt the parallel rule in this case.”

The same rule is stated in Foote v. Merrill, 54 N. H. 490 ; Chipman v. Hibbard, 6 Cal. 162; Ensley v. Nashville, 2 Baxter 144; Wallace v. Goodall, 18 N. H. 439-56.

Our conclusion, then, is that in none of the particulars of this case was it competent or proper for a witness to give his opinion as to the damage done. That witnesses acquainted with the subject matter concerning which they are being interrogated may state the difference in value of the farm with the shade and ornamental trees and hedge fence as they were when the farm was leased to the defendant, and when he turned it back to plaintiff. That the witness Kent, having stated he was acquainted with the effect of tramping land by stock in wet, soft weather, and that he was an experienced farmer, was competent to answer the question put to him, and that his answer was proper, and so of the witness Mitchell.

We believe this testimony comes within the exception to the rule, and may properly be said to be expert testimony. Grreenleaf on Evidence, Yol. I, sect. 440. It is evident that those who have had opportunities of studying the effect of such uses, and experiencing its results, could give more definite and intelligible evidence in regard thereto than those who had not snoh opportunities •or experience. If tramping, under given conditions, has .a known effect upon the producing quality of the land, the difference in the rental value would follow, and would be easily ascertained.

That a witness competent- in that respect, that is, with sufficient experience, information, and knowledge, •could properly be asked the value of the fruit trees destroyed, or the extent of the injury to those injured, giving the facts upon which he bases his statement.

The judgment is reversed, and the óause remanded.

All concur.