This is a suit for damages to growing crops. The sole issue on appeal is the correctness of the measure of damages instruction. During the fall and winter of 1966-1967 the defendant, Albert W. Jurge- *177 son, caused logs, brush and other debris to be deposited in Miami Creek аt a place where it flowed across his land. In June and July of 1967 land adjoining defendant on the north and upstream, owned by plаintiffs Orval and Urene Romine, was flooded. Plaintiffs’ growing crops, principally the corn crop, were flooded and damаged. Plaintiffs sued defendant claiming that the flooding of their land was caused by defendant obstructing the creek with debris. Although the cаuse of action arose in Bates County, the case was tried in Henry County on a change of venue. The jury found for the plаintiffs in the amount of $5,000.00.
For the measure of damages the court gave Instruction No. 3, which was M.A.I. 4.01: “If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you believe they sustained as a direct result of the occurrence mentioned in the evidence.” Defendant points out that there was evidence presented from which the jury could have found that all of the flooding was not caused by the defendant’s aсt of obstructing Miami Creek, that some of the flooding would have occurred without it, and he thus would not be responsible for all оf plaintiffs’ damage. Plaintiffs do not deny this but rely on M. A.I. 4.01 as being sufficient to inform the jury as to the factors to be considered in arriving at its vеrdict. Defendant offered an instruction number 8 which was refused by the court. This instruction hypothesized: the flooding of the creek, flooding of plaintiffs’ land, the inundating of the crops, blocking of the creek, unusual and extraordinary rainfall, a causal connection between the rain and the flood, and that the rainfall and blockage of the creek worked in combinatiоn to cause the flood. It then instructed the jury to exclude from plaintiffs’ damage award any damage that would have oсcurred whether or not the creek was blocked by defendant. It is our opinion that this instruction did not comply with Supreme Court Rulе 70.01(e), V.A. M.R. It was not simple or brief and required the jury to find detailed evidentiary facts.
Furthermore we presume defendant offered Instruction No. 8 pursuant to the rule generally observed before the adoption of M.A.I. that “Where an instruction on the measure of damages, though general, is not erroneous in its general scope, its generality does not constitute error аnd if the defendant fears such instruction may be misunderstood he must submit an explanatory or modifying instruction or he will not be heard to сomplain.” Raymond, Missouri Instructions, Sec. 132; Brunk v. Hamilton-Brown Shoe Company, Mo.,
In addition to offering Instruction No. 8 defendаnt objected to Instruction No. 3. He contends here that the word “occurrence” used in Instruction No. 3 is ambiguous in this case and did not clearly submit the issue. He says the jury could have believed “occurrence” referred to the flooding rather than defendant’s act of obstructing the creek. If such were the
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case and yet the jury did not believe defendant’s act causеd all of the flooding, the jury would have assessed damages against the defendant for which he was not liable. Thus, the issue is whether or not the court erred in the use of the word “occurrence” in Instruction No. 3. It is stated in Notes on Use of 4.01: “The word ‘occurrеnce’ should be adequate except in cases where there is evidence that two different occurrencеs produced the injury with defendant being responsible for only one. In such cases counsel will need to substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant.” Does the word “occurrencе” refer to “obstructing the creek” or to the “flooding” ? To which would a jury apply the word? We of course can’t tell. Thus, the instruction Is erroneous. See Sherwood v. St. Louis Southwestern Ry. Co., Mo.App.,
Ordinarily in a case where the only error wаs in the measure of damages instruction, the case would be remanded for a trial limited to the question of damages. But in this cаse the questions of damage and liability are so interwoven that it would not be practical to try the issues separately.
Therefore, the judgment is reversed and the cause remanded.