Anderson v. St. Louis, Iron Mountain & Southern Railway Co. ( 1908 )

BLAND, P. J.

(after stating the facts) — 1. By pleading over to the amended petition and going to trial, defendant waived its objection to the court’s ruling on its motion to strike out. [Fuggle, Admr., v. Hobbs, 42 Mo. l. c. 541; Scovill v. Glasner, 79 Mo. 449; Walser v. Wear, 141 Mo. l. c. 426, 42 S. W. 928; Springfield Engine & Thresher Co. v. Donovan, 147 Mo. l. c. 628, 49 S. W. 500; Bungenstock v. Nishnabotna Drainage District, 163 Mo. l. c. 219, 64 S. W. 149; Cohn v. Souders, 175 Mo. l. c. 467, 75 S. W. 413; Castleman v. Castleman, 184 Mo. l. c. 440, 83 S. W. 757; Dakan v. Chase & Son Mercantile Co., 197 Mo. l. c. 270, 94 S. W. 944; White v. Railroad, 202 Mo. l. c. 562, 101 S. W. 14; Hansard v. Menderson Clothing Co., 73 Mo. App. l. c. 587; Shuler v. Railway, 87 Mo. App. l. c. 622; Powell v. Brick & Tile Co., 104 Mo. App. l. c. 718, 78 S. W. 646; Grymes v. Mill & Lumber Co., 111 Mo. App. l. c. 361-2, 85 S. W. 946; Farmers’ Ex change Bank v. Crump, 116 Mo. App. 371, 92 S. W. 724.]

2. Anderson testified that he had laid by his corn before the hogs got into the field and that it required no further cultivation and would have put him to no further expense until gathering time. He was asked the following question: “Now, then, Mr. Witness, you are familiar with the land, having raised crops on it, and are a practical farmer, tell the jury, with the stand of corn you had and seasonableness of the year 1906, what, in your opinion as a farmer, that farm would have produced last year per acre?” Anderson’s answer was, “Well, I had pretty good corn, what I call good corn, and I suppose it would have made something in the neighborhood of thirty-five bushels, maybe more and maybe a little less, I could not say exactly. I think thirty-five bushels to the acreand he was permitted to testify to the market value of the corn standing in the field at gathering time. Substantially the same questions were asked other witnesses and the same answers given, to all of which testimony defendant objected and excepted at the time. Defendant’s contention is that the measure of damages was not what the land would have produced but the value of the corn standing in the field at the time it was destroyed. The evidence shows that the hogs were first discovered in the field about July tenth and from that, date on through the summer and into the early fall months they continued to get into the field, destroying all the corn but about seventy-five bushels, and Anderson testified that the value of the corn standing in the field at the time it was destroyed was three hundred and twenty dollars; that it was worth as much at that time as it would have been at gathering time, that is, from thirty-five to forty cents per bushel. The general rule is that the measure of damages for property negligently or tortiously destroyed by one not its owner is its value at the time and place of its destruction; but when the thing destroyed is a growing and immature crop (as of corn) the plaintiff, to prove his damages, may show that the probable amount of corn the crop appeared it would likely yield when destroyed, and the value of the same at the market season, deducting therefrom the necessary costs of cultivation and harvesting and of marketing. [Scanland v. Musgrove, 91 Ill. App. 184; Carter v. Railroad, 106 S. W. 611; Hunt v. Railroad, 103 S. W. 133.] It appears from the evidence that the crop of corn was practically made at the time the hogs first got into the field, and. the evidence to prove damages should have been confined to its then value. This proof was made by Anderson, who testified that at the time the corn was destroyed it was worth thirty-five cents per bushel in the field; that there was from twenty to twenty-two acres of the corn and the yield would have been from thirty-five to forty bushels per acre. Anderson’s testimony and that of the other witnesses, as to the value of the corn at gathering time, placed its value at from thirty-five to forty cents per bushel and none of these witnesses estimated the yield at more than from thirty to thirty-five bushels per acre, so if it be conceded that the court erred in admitting evidence of the value of the corn at gathering time, defendant was not prejudiced thereby. Anderson and other witnesses testified that the fence around the field other than the railroad fence was not in good condition. On this evidence defendant asked the following instruction:

“3. The court instructs the jury that if you find that plaintiffs’ own fences inclosing the field in controversy were defective, then plaintiffs cannot recover for any damages which may have been caused by hogs coming into the field through plaintiffs’ fence, if you find that any hogs did go into the field through said fence.”

The refusal of the court to give this instruction is assigned as error. There is not a ray of evidence to show that hogs at any time got into the field through plaintiffs’ fence; on the contrary the evidence is all one way that they got into the field and went out of it through defendant’s fence, therefore, there was no sufficient evidence to warrant the court to give the instruction. No reversible error appearing the judgment is affirmed.

All concur.