Berg v. Humptulips Boom & River Improvement Co. , 38 Wash. 342 ( 1905 )

Per Curiam.

This action was brought to recover damages to real and personal property, caused by flooding. The allegation of the complaint in relation to the damages sustained is as follows: That during the month of December, 1902, and the month of January, 1903, the defendant’s boom obstructed the Humptulips river, and caused the waters thereof to back up and overflow the plaintiff’s lands and premises,

“whereby plaintiff’s said land Was and is damaged, his hay destroyed, his live stock, to* wit, neat cattle*, injured, his dwelling house flooded and furniture therein damaged, his lumber and other property floated off and destroyed; in all to plaintiff’s damage in the sum of $2,000.”

The* defendant moved to* make this complaint more definite and certain, by stating the nature of the* damage to the real property, and the amount thereof, the quantity of hay destroyed, and the value thereof, and generally, by stating the different classes of personal property injured, and the particular injury thereto*, and a description of the properly destroyed, and the value thereof. The court denied the motion, and the ruling is assigned as error. The defendant then answered, denying the material allegations of the complaint, and alleging affirmatively that the real property described in the complaint was the community property of the plaintiff and his wife, and that the wife was a necessary party to the action. The affirmative matter in the answer was denied in the reply. When the case was called for trial, the plaintiff withdrew all claims for damages to the realty, but did not amend, or offer to amend, his complaint. The defendant thereupon objected to the introduction of any testimony under the complaint, for the reason that it did not state sufficient facts. • This objection was overruled. The plaintiff offered evidence as to the loss of a floating dock and house thereon, used for at boat landing, to which the defendant objected as it was a part of the realty, and the objection was overruled. Under the allegation of the complaint as to injury to cattle, the following testimony was received, over the objection of the defendant:

“Q. You say you had no hay to feed them ? A. Yes, sir; I have not any hay and I have to sell them. Q. How much do you estimate you were damaged on your cattle? A. I think about four hundred dollars. Q. You think if the flood had not come you would have made that out of them? A. Yes, sir; I would have made more than that out of them if the flood had not have come. Q. You claim you were damaged four hundred dollars because of this water to your stock? A. Yes, I don’t would have it for four hundred dollars. I never like to do it over again. Q. That is for the cattle? A. Yes, sir. Q. Now you say that the reason that you sold the stock was that you did not have money to buy hay to feed them with, your hay being spoiled ? A. Yes, sir. Q. That is the only reason ? A. Yes, sir.”

The plaintiff had judgment below, and the defendant appeals.

The- first assignment of error is based on the ruling of the court denying the motion to make the complaint more definite and certain. Ordinarily motions of this kind are addressed to the sound discretion of the trial court, and an appellate court will not review the ruling unless an abuse of discretion is shown. Inasmuch as this judgment must be reversed on other grounds, we will express our views in regard to this ruling, as the pleadings may be amended after the case is remanded. Our statute provides that the complaint shall contain a plain and concise statement of the facts constituting the cause of action; and, when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment, or may dismiss the same. A fitter place for the exercise of the power conferred by the latter provision has never been called to onr attention. Damage to lands, tenements, furniture, hay, live stock, lumber and other personal property, is lumped off at $2,000. Nothing was described in the complaint hut the land, and, to add confusion to uncertainty, this was withdrawn from the case, thus leaving it extremely doubtful whether there remained any allegation as to the amount of damages to the personalty. From the gross sum of $2,000, there was withdrawn an unknown sum for the damages to the realty, leaving the balance equally unknown and indeterminate. When a person is sued for injury to personal property, he has an absolute right to know what particular property he has injured, and the nature and extent of the injury complained of. If charged with the destruction of personal property, he has an absolute right to know what property he has destroyed, and' the value thereof. To illustrate, under the allegation that the respondent’s neat cattle were injured, the court received evidence, over objection, of loss sustained by the respondent because he had no hay to feed them, and was compelled to sell them sooner than he otherwise would. While the complaint covered nothing beyond physical injury to the cattle at most, a recovery was had for financial losses to the owner, resulting from other and different causes. The motion to make the complaint more definite and certain should have been sustained.

The second error assigned relates to the overruling of the objection to the reception of evidence, under the complaint, after the claim for damages to the real property had been withdrawn. Inasmuch as the complaint should be amended after the case is remanded, we deem it unnecessary to discuss this question. The third assignment relates to the ruling admitting evidence as to the loss of the floating dock. Dnder the record before us, it is difficult to say whether this was personal property or a part of the realty, and, as tbe question may not arise in tbe same form again, we will not discuss it.

Tbe next error assigned relates to tbe admission of evidence as to damages for injuries to tbe neat .cattle. Tbe substance of tbis testimony is given above. These damages do not come within tbe allegations of the complaint, and, in addition to this, tbe witness was permitted to state tbe gross- amount of bis loss, when it must have been apparent to tbe court below that some, at least, of tbe elements of damage- which tbe witness took into consideration in making bis -estimate could not be considered, in any view of the law, regardless of tbe pleading. It is only in exceptional cases, if at all, that a witness is- permitted to testify to the gross amount of damages sustained. That question is ordinarily for tbe jury. A witness may doubtless testify bow much tbe value of an article has been impaired or lessened by an injury thereto, but be cannot testify as to tbe total amount of damages, taking all elements into consideration, thus substituting bis judgment for that of tbe jury. DeWald v. Ingle, 31 Wash. 616, 72 Pac. 469, 96 Am. St. 927. It is true, tbe court instructed tbe jury that tbe respondent could not recover prospective profits to be made by keeping bis neat cattle over until spring, but tbis did not cure the error in admitting tbe above testimony, and in refusing to- strike it from tbe record.

Error is assigned on tbe instructions given by tbe court, for tbe reason that they would permit a recovery for injuries to tbe, real property. Tbe eleventh instruction excepted to is open to- the objection urged against it, but there is another instruction directly to tbe contrary. Inasmuch as tbe question will not arise again, it, is unnecessary to discuss it.

Tbe judgment is reversed, and, after tbe cause is remanded, tbe appellant will be permitted to renew its motion to make tbe complaint more definite and certain, and tbe respondent will be permitted to amend.