159 N.W. 854 | N.D. | 1916
This is an action to recover damages for the destruction of hay and injury to real estate by reason of a fire claimed to have been set by the defendant’s engine at a point about 3 miles southeast of the town of Wishek, in McIntosh county. A judgment for $750.08 was entered for the plaintiff, and against the defendant, and the defendant appeals. This opinion is written after a rehearing.
■Appellant first contends there was no evidence to go to the jury on the question as to whether the defendant caused the fire. All of the evidence that there is upon the subject is that a passenger upon a train of the defendant company saw a fire start up at some distance from the railroad trade ,as the train passed. He said that he did not know whether the fire started from the right of way or Uot. He, however, said that he saw nobody around the place, that the fire was on the east side of the track, and that he thought the wind was from the west.
In addition to this was the testimony of the plaintiff, that he had followed the trial of the fire to a point near defendant’s right of way, but that he could not tell just where it started, as it appeared to have burned in all directions. There is other testimony that the wind was from the northwest and that the track was to the west of the place of the fire.
Meager though this evidence is, we think it was sufficient. Many a man indeed has been hung on circumstantial evidence which was much weaker,than that which is before us. The fire started near the railroad
We are not unmindful of the case of Smith v. Northern P. R. Co. 3 N. D. 17, 53 N. W. 173, on which counsel for the defendant lays much stress in his brief and argument. That case, however, is not in point. It was handed down prior to the enactment of § 4654, Compiled Laws of 1913, which makes railway companies liable for the fires which are started by their engines, irrespective of the question of negligence. It was, therefore, necessary in that case to prove negligence in the operation of the engine or in its equipment. All that the court held was that the mere fact that a fire started 118 feet from the engine was not itself sufficient proof of such negligence, or of the lack of a proper equipment. It was admitted that the fire was started by the engine, and the question of its origin was not involved or discussed. Here the question before us Is a question of origin, and not of negligence.
The next point raised is that the plaintiff failed to offer any competent proof of his ownership of the east half of section 1, township 131, range 71, and thus to lay a foundation for the recovery of damages for the destruction of the hay upon said land. It is claimed that his evidence consists merely of a certain agreement which purported to have been signed by John T. Bressler, trustee, and by the plaintiff, and which declared that the said McGilvra had rented the land for the year 1914, and had agreed to pay $40 “for the use of the above land for hay and pasture purposes for the season of 1914, and thereafter for five years at the same rate, payable in advance, with the privilege to fence the land and remove the same in case the land is sold. This lease made subject to the sale of the land at any time, and may be canceled on date of the sale of the land, and the rental pro rated to that date.” It is argued that all the proof that there is of the making of this instrument is the
1. “When the parties and all the subscribing witnesses are dead; or,
2. When the parties and all the subscribing witnesses are nonresidents of the state; or,
3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or,
4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve a subpoena or attachment; or,
5. In case of the continued failure or refusal of the witness to testify for the space of one hour after his appearance.”
None of these elements were present in the case which is before us, and the question is whether the statutes in question are applicable in the case at bar, and whether the mere identification of the signature of Bressler and by one not a subscribing witness, was sufficient.
It is clear to us that §§ 5569, 5571, and 5572 of the Compiled Laws of 1913, were merely intended to be applicable to proof before the registers of deeds when unacknowledged instruments are sought to be recorded, and that in other instances the general rules as to proof will apply.
The witness Gannon testified that he knew the signature of Bressler, and that it was his signature that was on the instrument. It is true that he did not testify that he saw Bressler write his name, or that the signature was genuine. The latter fact, however, was of course implied, and in addition to this there was evidence of acts of possession on the part of the plaintiff. A prima facie case, therefore, was certainly established. Jones, Ev. 2d ed. § 526; Pullen v. Hutchinson, 25 Me.
Nor is there any merit in the contention that there is no proof of the authority of the trustee to execute the lease in question. The evidence shows that the title to the land was in John Bressler, trustee, that the lease was executed by John T. Bressler, trustee,- and that the plaintiff was occupying the land at the time of the fire. Section 7936 provides that “there shall be a disputable presumption of ownership from possession and from exercising acts of ownership,’’.and § 2799 of the Compiled Laws of 1913 provides that, “in any action instituted in any court to recover damages under the provisions of the foregoing section, it shall not be necessary for the person injured by such fire to allege or prove on the trial of such action, title to the real property over which such fire has spread, but it shall be sufficient in any such, action to allege and prove that the person so injured was in the occupancy or possession of such ranch, building, improvement, fencing, timber, or other property, claiming the right to and occupying with cattle any such cattle range, it being the purpose and intention to protect the possession as aforesaid, whether such person has title to such land or not.”
Under these provisions the plaintiff was the ostensible owner of the premises, and, without further proof than the mere fact of occupancy, would prima facie be entitled to damages for the loss of his hay.
We now come to the question of the measure of damages, and are called upon to scrutinize the following instructions:
“The court instructs the jury that the measure of damages in cases of this kind is the value of the property at the time and place where it was destroyed, and the jury have the right to arrive at this value from the testimony of the witnesses and other facts and circumstances as disclosed by the evidence; and of the weight and credibility of the witnesses, the jury are the sole judges. In other words, the plaintiff is entitled to recover just compensation in money for the property destroyed, such an amount as will fully restore him to the same property status that he occupied before the destruction. To arrive at the amount of such compensation, inquiry is necessarily confined strictly to the ascertainment of the value of the'property destroyed at the time and place of the destruction thereof,- and in this connection I instruct you*283 that whenever there is a well-known or fixed market price for any property, the value of which is in controversy, it is proper, in establishing the value, to take into consideration such market value; but in order to say of a thing that it has a market value, it is necessary that there shall be a market for such commodity, i. e., a demand therefor, and ability from such demand to sell the same when the sale thereof is desired. Where, therefore, there is no demand for a thing, — no demand to sell the same, — then it cannot be said to have a market value at the time when and at a place where there is no market for the same.”
. “Therefore, if you find from the evidence that there was at the time of the destruction of the property in question a well-known or fixed market price for the same, then the measure of damages, or, in other words, the amount which the plaintiff is entitled to recover for the destruction of the property, provided you find defendant liable, is' its reasonable market value at the time and place it was burned. . But I instruct you that the rule as to such only requires a strict limitation as to the market value in cases where such value would be the fairest and the best measure of damages and is ascertainable. What the law requires is certainty as far as possible and an absence of speculation. It does not, however, require the impossible or the unreasonable.”
“.On the other hand, gentlemen, if you find from the evidence that there was no market value of the property in question at the time and place of the destruction thereof, then it is your duty in arriving at the true value of the said property at the time and place of the destruction, to take into consideration all the facts and circumstances disclosed by the evidence' bearing upon that question, and in such case you have a right to consider what it would cost the plaintiff to replace the property, and in this connection I instruct you, gentlemen, that the owner of personal property may himself testify as to its value; and you have a right to consider such testimony in connection with all of the other testimony introduced here and in connection with all of the facts and circumstances disclosed by the evidence.
“The ultimate question in determining the value of the property in question is, What was it worth at the time and place of the fire ? and all I have said upon this question of damages has been said to you with a view to assisting you in determining the answer to this question, What was the personal property in question worth at the time of the fire?*284 and I instruct you that all that I have said in regard to the measure of damages for the personal property destroyed must be confined to your consideration of the value of the personal property destroyed, and must, not be considered by you when you consider the damage done to the real property, if any such damage is disclosed by the evidence in this case, and I instruct you that you are the sole judges in determining what the personal property in question was worth at the time and place of its destruction.”
Counsel for appellant insists that the foregoing instructions authorize the jury to give a speculative estimate of the value of the hay burned,, and were, therefore, improper. He alleges that it was established that there was a market for hay in the community, and that the market price as testified to should control.
Although we at first entertained a different opinion, we are now satisfied that under the peculiar circumstances of the case this instruction was correct, and that the defendant has no ground for complaint.
After a careful perusal of the evidence, indeed, we are satisfied that though some of the witnesses state, as a matter of opinion, that there-was a local market, the evidence shows conclusively, and in fact is undisputed, that there was none. It discloses a situation where, with one exception, the farmers put up hay for themselves alone and sold only in case of a surplus, and which seems rarely to have been the case. The fact that one or two persons at about the time of the fire were able to-find and to buy hay of the kind destroyed is no sufficient proof of a steady market or supply, nor of a market price. In order that there may be said to have been a market price which was controlling in the matter, “other property of the same kind must have been the subject of purchase or sale to so great an extent and in so many instances that the value becomes in a measure fixed. Sloan v. Baird, 162 N. Y. 327, 56. N. E. 752. The market price of an article is “the usual standard for measuring its value, and is the sum fixed by the consensus of buyers and sellers.” 3 Words & Phrases, 2d ed. 300, 1st ed. vol. 5, 4382. It is the “current price.” Century Diet. It is “a price established by public sales in the way of ordinary business." Bouvier’s Law Dict. It is “the price at which they are freely offered in the market to all the world; such prices as dealers in the goods are willing to receive and purchasers are made to pay, when the goods are bought and sold in the.
There is no sufficient evidence in the case at bar of such a local market.
The witness Chris Grueble testified that the value of hay around Danzig about the 1st of November was about 5 or 6 dollars a ton. He testified, however, to no sales and to no market, and, as a matter of fact, it is questionable whether his testimony was admissible at all.
The witness Xouis Rubin testified that he was familiar with the buying and selling of hay around Danzig.
Q. Do you know whether there was any steady market for hay around Danzig ?
A. Not that I know of. People will put up hay for their own use, and if they got any too much, then they sell, but there is not any for to sell whatever, that I know of. I sold some up there about a month and a half ago. I got for it, I believe, about $6 a ton.
This testimony was inadmissible as far as the sale was concerned, as it occurred a month and a half before the trial, and not at the time of the fire. It, however, did show that there was no steady market even around Danzig, and that people merely put up hay for their own use and sold what they had over.
The witness Phillip Ilypel testified that he lived 2-| miles from Yenturia, and (in answer to a leading question) that there was a market for hay in the community on the 9th of November, 1914; that at that time he sold some prairie and slough hay mixed; that its fair market value was $3 a ton, but he didn’t know of any other sales.
Q. Do you know of any place you can haul your hay to and immediately dispose of it at a fixed price ?
A. Oh yes, in Wishek I got it last fall about November 1st. I could get $5 a ton for it in Wishek.
He testified, however, that this hay was sold before he had put it up, so that the price must have been fixed early in the year and before the time of the fire.
The witness Conrad Kogler testified that he lived 6 miles from Wishek
The witness Christoph Hiller testified that he lived near McGilvra’s; that he saw some of the stack; that that kind of hay had a market value in the community on or about the 9th day of November in the stack; that as far as he knew his neighbors sold some for $2.50 a ton; that the hay was worth $3 a ton in the stack; that after the fire that about three weeks before (that is before the trial) McGilvra told him that he had bought some hay. “I wouldn’t say for sure, for $4 or $4.50 for the load, and he said the load contained two tons;” that the hay was not really slough hay, but it was hay from low ground; that he estimated there was a ton and a half on the rack and he said over 2 tons.
The witness John Kogler testified that he lived about a mile from the land in question; that there was no market for hay like that burned on or about the 9th of'November, 1914; that he knew of some sales that were made about that time, but after the fire he bought some hay for $3 a ton, but he didn’t know what was its value at the time and place; that the hay was vrorth $3 in the stack. The only sale, however, that he refers to and on which he seems to base his testimony, was that which was bought by his father, Conrad Kogler.
. The witness Ed Christy testified that the prairie hay had a market value on November 9th.
Q. Do you know what it was worth, what it could be bought for ?
A. No I don’t know.
Q. Tell us whether you know that the hay was worth any particular price in that community.
A.' • I don’t know.
• Q. I am asking you now what hay was worth in that community last fall on or about the 9 th of November in the stack.
A. Three dollars a ton.
This testimony showed no local market and no local market value.
All of the definitions presuppose a consensus of buyers and sellers, a current price and numerous sales, and there is no proof that these elements were present in the farming community even if they were present at Danzig or Wishek, and of which we have some question.
Even if there was a market at Wishek or Danzig, there is no lower price testified to at these places than $5 a ton, and since there was no local market and the plaintiff was entitled to have the hay replaced where burned or its value at that place, the measure of damages would be, not the market price at Wishek or Danzig, hut that market price plus the cost of transportation to the place of the fire or the community value, and since the jury returned a verdict of $5 a ton it is quite clear that they were not induced by anything that was said in the instructions to render their verdict for any greater sum than the price that was paid at the place mentioned. But be this as it may, we are satisfied of the correctness of the instructions and their applicability to the case at bar. There was no local market, and the existence of a market, even at Danzig or Wishek, was a matter of some doubt and was for the jury to pass upon. There is no claim or evidence that the plaintiff’s hay was kept merely for purposes of sale. He was entitled to have it replaced where' it was destroyed, or rather to be paid its value at that place, its actual, replacing being impossible. There being no fixed or local value/ and" even though there was a market value at Danzig and Wishek, this value would not necessarily control as the places were at least 5 miles distant, and the plaintiff was entitled to the reasonable value of his hay at the time and place of its destruction, and for the uses to which he was putting it or might reasonably have put it. 33 Cyc. 1391.
In all of such cases a liberal, rule of proof prevails, and proof of the prices which had been paid both in the immediate neighborhood and at Wishek and Danzig would be competent as tending to show the real value. Texas & P. R. Co. v. Prude, 39 Tex. Civ. App. 144, 86 S. W. 1046; Galveston, H. & S. A. R. Co. v. Rheiner, — Tex. Civ. App. —, 25 S. W. 971. Hnder this condition of- the facts and of the evidence it was perfectly proper for the court to instruct the., jury that the market
The defendant could in no event have been prejudiced by the instructions. If market there was, it must have been at Danzig, or atWishek, and there the lowest price was $5 a ton, which amount the jury held to be the value of the hay.
Nor can it be said that, outside of this price which was paid at points mentioned, there was no evidence of the value. The plaintiff testified that the hay was worth $6 a ton, and it is established that he, as the owner, was competent to so testify. See Seckerson v. Sinclair, 24 N. D. 625, 100 N. W. 239; Texas & P. R. Co. v. Prude, and Galveston, H. & S. A. R. Co. v. Rheiner, supra.
But the defendant further excepts to the instruction of the trial court wherein he charged the jury that “when witnesses are otherwise equally credible, and their testimony otherwise equally entitled to equal weight, greater weight and credit should be given to those whose means of information were superior and also to those who swear affirmatively to a fact, rather than to those who swear negatively or to a want of knowledge or want of recollection.”
This instruction was criticized in the recent case of Remington v. Geizler, 30 N. D. 316, 152 N. W. 661. It was not held, however, in itself to constitute reversible error, nor do we believe that it should be held to constitute reversible error in the case which is before us. There was no conflict in the evidence as to the cause of the fire, nor as to the extent and nature thereof. On the question of values it could not have applied in any way, nor have influenced the jury. Its only possible application could have been to the question of the amount of the hay destroyed, and even here we find that the nature of the testimony is substantially the same, and is based upon measurements of the bases of the stacks, not before but after the fix-e occurred. It is indeed only in extreme cases that errors such as those complained of shoxxld be allowed to overthrow verdicts, and no such extreme case seems to be before us.
It is claimed that this instruction was erroneous and misleading. It is also claimed that it was not confined, and that it should have been confined, in its application, to material matters only.
It is not necessary, however, that it should have been confined to material matters. This is not a case of the application of the rule of “false in one matter false in all;” for the instruction in effect merely tells the jury that if as to any pariicular matter there is one witness as against many they may believe that witness as against the many, if they think as to that particular matter the others- are mistaken or have not spoken truthfully. We hardly see why it was necessary to give this self-evident instruction at all, but it is not subject to. the objections made to it.-
We are, however, satisfied that the trial court elsewhere erred in allowing evidence to be introduced as to the effect upon the soil and the growth of grass, which certain prairie fires in the past had had upon other, pieces of land than that for the recovery of damages for the injury to which the action was brought.
The witnesses, no doubt, were competent to testify as experts in this particular, but the proper procedure would have been to have first shown this general knowledge and experience of prairie fires and their effects and then to have asked them not what injury had been done by prairie fires in the past to other pieces of land, but what effect the fire in qtxestion would have upon the particular land in question; and in response to a hypothetical question which should summarize and assume to be true, the testimony already introduced as to the duration of the fire, its velocity, the condition of the grass before the fire, and whether the fire merely skipped over the tops or burned deeply into the roots of the grass.
On account of these errors as to the injury to the land, we are unable to affirm the judgment as a whole. The special findings, however, disc-
