173 P. 310 | Or. | 1918
“That on or about the 12th day of April, 1917, the defendants wrongfully, unlawfully, and without the plaintiff’s consent, and against his will, herded, grazed, and pastured a band of approximately 700 of their sheep on the said land, they well knowing that the land belonged to the plaintiff and that the plaintiff would not permit trespassing thereon, and whereby on account of the said acts of the defendants the pasture for the said lands was injured for the year 1917 and the roots of the grasses growing thereon in many places permanently injured; that a part of the said land was fenced.”
The corresponding portion of the answer is as follows:
“[Defendants] deny that on April 12th, 1917, or at any other time approximately 700 or any other number of their sheep were herded, grazed or pastured on said land and allege that on said date about 80 sheep got away from their herder and entered the said land, but were immediately taken out by the said herder. ’ ’
Defendants contended that by the exercise of reasonable diligence at the time of the first trespass plaintiff could have driven the sheep off his premises and thus minimized the damages. In response to this contention the court instructed the jury as follows:
“It is also the duty of a person seeing himself damaged or about to be damaged, to use reasonable efforts to.prevent or minimize those damages; and therefore you may consider all of the circumstances detailed to you in evidence in this case in determining whether, under the peculiar circumstances of this case, it was the duty of this plaintiff to take any action in the premises, to minimize or reduce his damages; and you may consider this in determining the damages to which you may think the plaintiff is entitled in this case, if any.”
Defendants invoke the principle that special damages cannot be recovered unless a foundation for such recovery is laid in the pleadings. It is contended that this principle was violated in the admission of testimony. After proof had been received of the trespasses alleged in the complaint, the court received evidence over defendants’ objection and exception that at the time in question the feed was about all gone in the part of Harney County in which plaintiff lived. Thereupon over objection and exception the following question was answered:
“What would be the market value of that feed [the grass consumed by the sheep] in that community at that time, under those circumstances, for the purpose of saving stock, as you have told here?”
The first answer was:
“That grass would be worth $300 to $400 to anybody with poor stock.”
This answer was stricken out and the witness thereupon said that the feed would be worth $300 to $400.
“How much less, if any, was the market value of your premises immediately after the sheep had trespassed upon it as you have related, than they were immediately prior to the time the sheep trespassed?”
The answer was $600 or $700. It is well settled in this jurisdiction that a witness cannot testify categorically as to the quantum of damages sustained by a plaintiff through the acts complained of: Montgomery v. Somers, 50 Or. 259, 262 (90 Pac. 674); Pacific Ry. & Nav. Co. v. Elmore Packing Co., 60 Or. 534, 538, (120 Pac. 389, Ann. Cas. 1914A, 371). But the foregoing testimony does not come within the above rule. It was competent for plaintiff to prove by the opinion evidence of a qualified witness the value of his property before the trespass and also to prove its value after the trespass by the same character of testimony: Blagen v. Thompson, 23 Or. 239, 259 (31 Pac. 647, 18 L. R. A. 315); Ruckman v. Imbler Lumber Co., 42 Or. 231, 233 (70 Pac. 811); Willis v. Horticultural Fire Relief, 77 Or. 621, 627 (152 Pac. 259). This being well settled, it would seem very technical to exclude testimony to the same
“There has been some testimony in this case by way of opinion of witnesses, as to the value of the pasture destroyed, and as to the depreciation in the value of the land by reason of the acts of the defendants’ sheep. You are not bound in this case to be governed by the opinion of any man as to the value of this pasture, or as to the depreciation in value of the freehold. You may consider that evidence, however, along with other evidence, in determining for yourself what the market value of the pasture destroyed was, and also what the depreciation, if any, was in the freehold.”
“The conversation was that Joe Garcia came up the road and met me and Mr. A1 Wallace talking. I told him, I says, ‘ There has been some of your sheep down in my field,’ I says, ‘also they have been in my wife’s field. Did she say anything to you about it?’ He says, ‘Yes, I was just talking to her.’ I says, ‘The sheep came on down into my field the other day, too. ’ I says, ‘Harrison Grove is telling about — as I understand, he was going about — .’ ”
At this point counsel for defendants said:
“We object to this as incompetent, irrelevant, and immaterial, and making a self-serving declaration.”
The objection was overruled, an exception allowed and thereupon the witness continued as follows:
“I says, ‘Bob Miller and others told me Harrison Grove made the remark at Trout Creek, he was going to come to Cottonwood Creek and eat the Cottonwood people’s dooryards out.’ He said before other people, he was coming to Cottonwood and eat them Cottonwood people’s dooryards out. Garcia says, ‘He ain’t got nothing to do with the sheep; he couldn’t have said it. I am running these sheep,’ and he says, ‘If they have done any damage,’ he says, ‘why,’ he says, ‘It is up to me.’ I says, ‘Who would you leave it to — you or me? I wouldn’t ask you to leave it to me and I wouldn’t leave it to you.’ I says, ‘Leave it to a disinterested party, or to a jury to settle this matter.’ And he drove off.”
At one point the witness was interrupted in making the above answer, by an objection preferred by de
We find no substantial error and the judgment is affirmed. Affirmed.