Doty v. Quincy, Omaha & Kansas City Railroad , 136 Mo. App. 254 ( 1909 )

JOHNSON, J.

Plaintiff sued under section 1111, Eevised Statutes 1899, to recover damages for an injury to apple trees and the fruit thereon alleged to have been caused by a fire from one of defendant’s locomotives. The answer is a general denial. Verdict and judgment were for plaintiff in the sum of $450, and the cause is here on the appeal of defendant.

The injury occurred September 26, 1906. It appears quite conclusively that sparks from a passing engine on defendant’s railroad set fire to grass and stubble and that the fire spread to the adjoining premises of plaintiff and injured trees in his apple orchard. The evidence of plaintiff shows that twenty-six bearing apple trees were badly and permanently injured and that the apples on the trees and on the ground under them were damaged. The principal errors assigned by defendant relate to the measure of damages. It is insisted that evidence of damages not pleaded in the petition was erroneously admitted and that the instruction given at the request of plaintiff does not express the proper rule of damages. The petition alleges: “That on or about the 26th day of September, 1906, at said Bowman Township in said Sullivan County, Missouri, fire was communicated from a locomotive engine then in use by defendant, its agents, servants and employees upon its said railroad, to certain grass, stubble and combustible matter and to certain apple trees and apples thereon belonging to and being .upon the premises and lands of the plaintiff and- situated and being on the farm aforesaid, destroying then and there and injuring and burning tiventy-six (26) of said apple trees of the reasonable value of twenty-five ($25) dollars each and the apples thereon of the reasonable value of five ($5) dollars on each of said trees, to plaintiff’s damage in the sum of seven hundred and eighty ($780) dollars.”

The evidence of which defendant complains pertains to the apples which had fallen from the trees and were destroyed by the fire. It is pointed out that no other apples than those on the trees are mentioned in the petition, and the well-known rule is invoked that the scope of the proof and of the cause submitted to the jury must not exceed the limits of the cause pleaded in the petition. We think the objection is hypercritical. The petition does not speak of “windfalls” in special terms, but the evident purport of its allegations was to include the ungarnered fruit of the trees in the" property charged to have been injured. Such fruit necessarily would consist of the apples on the ground under the trees as well as those on the trees. The evidence was admissible.

The instruction criticized is as follows: “The court instructs the jury that if they believe from the evidence that the defendant, the Quincy, Omaha & Kansas City Railroad Company, on or about the 26th day of September, 1906, while running a locomotive steam engine, cars and coaches on -its line of railroad in Sullivan county, Missouri, through its servants, agents and employees, permitted fire to escape and be communicated from such locomotive engine, then and there, to certain grass, stubble and combustible matter then and there being upon plaintiff’s premises, and burning, injuring and destroying certain apple trees and apples thereon, then you will find for the plaintiff and assess his damages at the difference, if any, in the reasonable market value of said property and premises just prior to such fire and just after the same, not exceeding the sum of $780, the amount claimed in the petition.”

Since the evidence discloses that the fruit of the trees had matured, such fruit should no longer be treated as a part of the realty but as personal property, and plaintiff was entitled, as a part of his 'damages, to recover the difference between the market value of the damaged apples just before the fire and .their market value just after. A different rule applies to the measure of damages caused by the injury to the trees themselves. Being attached to and sustained by the soil, they were a part of the land — were real and not personal property. As bearing fruit trees, their chief value depended on their attachment to the land. Recoverable damages for the injury to them consists alone of the effect such injury had on the market value of the land, and the jury should have been instructed to find the amount of such damages by the ascertainment of the difference between the market value of the land immediately before and its market value immediately after the injury. [White v. Stoner, 18 Mo. App. 540; Gates v. Railway, 44 Mo. App. 488; Shannon v. Railroad, 54 Mo. App. 228; Matthews v. Railway, 142 Mo. 645.]

The instruction under review does not declare the rule expressed. It is somewhat vague and indefinite, but properly construed; it not only authorized the recovery of damages to the market value of the land and to the market value of the crop, but also allowed the jury to assess damages for the trees considered apart from the land. This was palpable error, especially in view of the testimony of a number of witnesses that each tree was of the value of $20 or $25. Thus the jury might have been misled into awarding double damages on account of the injury to the trees. ■ The error is not to be regarded as a mere non-direction, but as a positive misdirection, and, therefore, it cannot be deemed cured by the instructions given at the instance of defendant.

We find no other error in the record. The judgment is reversed and the cause remanded.

All concur.