126 Iowa 581 | Iowa | 1905
Tbe claim of plaintiff was for the destruction of standing grass, two stacks of straw, and a fence, and for permanent damages to tbe meadow on which the grass was standing. On behnlf of defendant there was evidence tending to show admissions made by plaintiff soon after the fire, fixing the amount of his damage at $273;
“Dear Sir: July 13th, 1901, fire from freight train destroyed over 30 tons of hay for me, together with two straw stacks, 304 rails, and 15 or 20 posts; altogether of the value of near 300.00. It was reported at the time by your section boss, and I have been waiting for some one to come and see after my loss.”
The only instruction given by the court with reference to the letter and the oral statements of plaintiff to the defendant’s agents, made soon after the fire, was the following:
The instruction is plainly erroneous and misleading in referring to the effect to be given to the letter and oral admissions. In the first place, it draws no distinction between oral admissions established only by the testimony of a witness who heard them, and written admissions, confessedly made by the party himself; that is, established by writing over his own signature. As to oral admissions the rule of the instruction is not open to serious criticism, although! it tends to deprive them of the weight to which they are entitled when clearly proven. The language of Greenleaf, which is to some extent embodied in this instruction,'is in full as follows:
With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting as it does in the mere repetition of oral* statements, is subject to much imperfection and mistake; the
The thought of the last, sentence quoted -from Greenleaf is not given full force by the instruction, which states that, as a general rule, “ the statements of witnesses as to verbal admissions of a party should be received by the jury with great caution.” And the instruction is especially objectionable under the evidence which is found in this record, for the plaintiff does not deny that in his conversations with the agents of defendant soon after the fire he fixed his .damage at $273.' We think that such oral admissions, being substantially made out by. the testimony of plaintiff, as well as that of defendant’s witnesses, were entitled to very considerable weight as against his subsequent testimony that the. total amount of his loss from the same fire was over $700.
It is evident that the errors above referred to could have affected only the amount which the jury should allow plaintiff in excess of the amount stated in his admissions, for in his oral and written claims he said nothing as to permanent injury to his meadow. We do not say that he was not entitled to recover for such permanent injuries, notwithstanding his injuries may not have been apparent or known to him at the time his claims were first made — that is, within two weeks after the fire; and, if the competent evidence offered by the defendant had been received, and the effect of plaintiff’s admission properly explained, it may well have been that the jury could and would have allowed to the plaintiff more than the amount which he first claimed. But as to the number of tons of hay which could have been gathered from plaintiff’s land had the grass not been destroyed by fire,,and as to the value of the hay which was thus destroyed, we think the admissions were entitled to great weight. However, as the errors committed related only to the amount which plaintiff should recover beyond the amount originally claimed by him, we will allow the plaintiff, if he so elects, to have judgment in this court for $300 and interest from the time of the fire. If he does not elect within 60 days from the filing of this opinion to take judgment for this amount, then the case will be remanded for a new trial. The costs .of the appeal will be taxed to the appellee. —• Beversed.