Ferguson v. Stafford

Elliott, J. This was a suit for waste, brought by Oliver '.Stafford, Phcebe Ann Stratton and her husband John Strut - itou, and Scott-StafforcL, by Emanuel W. Stafford, his guardi — 163 — •an, .against Fanny Ferguson and John "W. Ferguson, her husband, said Oliver, Phcebe Ann, and Scott, being children of Grant Stafford, deceased, and said Fanny (now the wife ■of John W. Ferguson) being his widow. The suit was commenced in Morgan county, and a trial of it there resulted in a verdict in favor of the defendant John W. Ferguson, and in favor of the plaintiffs against said Fanny, but a new trial was granted to her, after which the case was taken, on change of' venue, to Owen county. The record shows that in 1852, Grant Stafford died testate, seized in fee of a valuable farm in Morgan county, which by his last will he devised to said Fanny, then his wife, until his youngest child should arrive at the age of twenty-one years, and then to his three youngest children, the appellees in this suit, charged however, with the comfortable support, of said Fanny during her natural life. And it is alleged, that at the death of the testator, the farm was well improved and in a high state of cultivation; that there wds then situate on the farm a brick and frame residence, in good repair and condition, a large frame barn, large cribs, stables and other iout houses, all in good condition; that the farm was well and securely fenced into convenient fields, and had on it an orchard of choice apple and small fruit trees; that said Fanny, prior to her marriage with said Ferguson, and since then with him, had been in possession of said farm continually after the death of the testator, and had caused? suffered and permitted the houses and barns to decay and become worthless, by neglect and refusal to repair them, destroyed the orchard and garden, suffered the fences to decay and become destroyed, and so abused and improvidently managed the cultivation of the lands as to render them poor and unproductive, and wholly refuses to apply any portion of the profits derived therefrom to the necessary repairs of the farm; that the farm, in .soil, orchard, houses, barns, stables, fences, pastures, and meadows, has become wasted, and suffered irreparable damage; that said Fanny wholly refuses to repair; and that Scott Stafford, the young — 164 — cst of the testator’s children, was only seventeen years of age. Prayer for injunction restraining farther waste, and for •the appointment of a receiver and the application of the rents and profits, during the remainder of said Fanny’s term, to the repairs of the farm, and for general relief. There was an answer in two paragraphs, one of which was a direct, and the other an argumentative denial of the aliegations of the complaint. The cause was tried by a jury, who found for the plaintiffs, and assessed their damages at fifteen hundred dollars.. Motion a new trial overruled, and judgment on the verdict. The questions urged by counsel as grounds of reversal arise on the refusal of. the court to grant a new trial, because of alleged errors in the admission of certain evidence over the appellant’s objections. James M. Stafford, having testified that he had an intimate knowledge of the farm, its improvements and condition, when it came into the possession of the appellant, and also with its condition at the commencement of the suit, and that when the appellant took possession, the fences, gates, buildings, orchard, and garden, were all in good repair, and the lands in a superior state of cultivation, then described its condition at the commencement of the suit, and stated that when the appellant took possession there were ten good gates on the farm, which are all gone; that eight hundi’ed and ninety-five rods of fencing were gone, requiring to replace them seventeen thousand eight hundred and eighty rails. He then, over the appellant’s objection, stated that ten year’s ago, when the rails were removed, rails were worth two dollars and fifty cents per hundred; that rails there were now worth five dollars per hundredp that if the gates had been kept in reasonable repair, they would be worth from three to five dollars each. This and several other witnesses, who knew the condition of the farm at the testator’s death, and also at the commencement — 165 — of the suit, were permitted to give their -opinions as to its value at -the 'last named period, in the condition It was then in, and also what it would then have been worth if the buildings, orchards, fences, and grounds, had been kept in ■ordinary -good repair and cultivated in a husbandlike manner. The objection urged to the evidence is, that-It consisted of the speculative opinions of the witnesses, and, in -.effect, estimated the damages, and thereby usurped the province of the jury; that the witnesses should have been confined to a statement of the facts, leaving the jury to draw their own conclusions in estimating the damages. The general rule certainly is, that witnesses are only permitted to state the facts within their own personal knowledge, but not their opinions, conclusions, or deductions. These can only be made by the tribunal whose duty it is to decide upon questions of fact, But there are exceptions to this rule; one of which is, that when the value of property, real or personal, comes In question, witnesses having a personal knowledge of the property, and who posses the necessary knowledge and Information to enable them to form ■a proper estimate of its value, are permitted to give their opinions in reference to It. Evansville, &c., R. R. Co. v. Fitzpatrick, 10 Ind. 120; The Jeffersonville R. R. Co. v. Lanham, 27 Ind. 171; Van Deusen v. Young, 29 N. Y. 9; Mayor v. Pentz, 24 Wend. 667; Joy v. Hopkins, 5 Denio, 84; Sedgw. Dam. 592, 2 ed. In Clark v. Baird, 9 N. Y. 183, after a careful examination of the question, it was held, that the opinion of witnesses acquainted with real estate, the value of which is in dispute, are competent upon the question of such value. In many -eases the admission of such evidence would seem -to be a necessity', indeed, is the best evidence of which the question is .susceptible, and constitutes the only reasonable means of arriving at a proper conclusion. Thus, in a suit for the conversion of personal property having no fixed or definite market value, how can the value be ascertained except by the opinions of witnesses acquainted with dhe property' and knowing its quality and condition? Suppose — 166 — the property, the value of which is iu question1, to be a horse,, a description of his age, size, color, form,, and gait, would-give hut a very indefinite idea of his value. The description would- be equally applicable to a multitude- of horses-cliff ei’ing greatly iu value; but the opinion of witnesses who-know him and have a personal knowledge of all hi’s. qualities, would give a much more reliable idea of his value. Here the value of the farm, as an inheritance, in its dilapidated condition, and what its value would have been had it been kept in a proper state of repair and cultivation, were-proper matters for the consideration of the jury in estimating the damages. These: facts could be best ascertained by the opinions of those who, from a personal knowledge of the farm, its quality and condition, were qualified to judge of them. The admission of such evidence is sustained by the ease of Clark v. Baird, supra. Greer, a witness, testified, that “the orchard was damaged one hundred dollars; vineyard, two hundred dollars; houses, four-hundred dollars; stock stable, two hundred and fifty dollars; barn, forty dollars ;■ missing fences worth three hundred and-fifty dollars; to repair’ fencing now standing, twa-hundred dollars, plank fence around the yard and gates-sixty dollars, large gates thirty dollars, pastures three hundred dollars, bayou one hundred and fifty dollars; timber cut down and not used worth fifty dollars, shrubbery thirty dollars.” This, evidence was- excepted to- It will b.e observed, that the witness, in refering to. the or*chard, vineyard, houses, stock stable; and barn, spoke of them, as being damaged in the several sums named. This, under-the general rule, that witnesses are not permitted to. state their opinions as to the amount of damages,, would, if unexplained, be-error;, but the witness, after stating that, he-had known the farm-welL since 1841 and had an- intimate.knowledge of its. condition from the time- the appellant came into its possession, and after having given a full statement in detail of its condition when, it came into the appellant’s possession, and also. at. the tima- of the trial,, said, that. — 167 — lie “had made an estimate of the cost of putting the farm in a good condition of repair,” which he then proceeded'to-given in detail, and in doing so used the word “damaged” in reference to some of the items. It is apparent from the whole of his evidence that he was speaking of the estimated cost in making the repairs referred to, and, we think, could not have been otherwise understood by the jury. Thus understood, the evidence was proper, notwithstanding the use of an unhappy or improper term to express the idea intended and really conveyed. S. H. Buskirk, C. F. McNutt, W. A. Montgomery, and G. W. Grubbs, for appellant. S. Claypool, W. R. Harrison, and W. S. Shirley, for appellees. The record shows that the court very fully instructed the jury that the appellees could only recover for the permanent injury to the reversion, caused by the voluntary or permissive waste of the appellant. The evidence not only sustains the verdict, but would have justified the finding of a much larger amount in damages; and we find nothing in the record to justify a reversal. Judgment affirmed, with costs.