HOUSTON & T. C. R. CO. v. ELLIS et al., 224 S.W. 471

PHILLIPS, C. J. The plaintiffs’ pasture was set afire by a passing engine of the defendant and the grass was burned off. The suit was for the value of the grass burned and for the injury done the turf by the fire. A judgment for the plaintiffs was affirmed by the honorable Court of Civil Appeals for the Third District. Complaint is made that some of the witnesses were permitted to testify that the damage done to the pasture land by the fire was a'stated amount — two fixing it at fifty cents per acre and one at seven cents per acre.

It is urged that the ruling of the Court of Civil Appeals on the admission of this testimony is in conflict with its decision in Railway Co. v. Fickey, 59 Tex. Civ. App. 133, 125 S. W. 327. There is no conflict. Had the witnesses been allowed to say that the damage to the land was a certain amount, it would have been improper and contrary to the decision cited. But such was not the testimony-as given.

The witness Quinn, for instance, was asked- to state his judgment as “to the damage to the pasture.” An objection that the question called for the conclusion of the witness upon a matter exclusively for the jury and for testimony not the proper basis for the correct measure of damages, was overruled.

The question was repeated, but in this form: “What would be the damage, the difference between the value of the pasture before the fire and after the fire?” The answer of the witness, shown to have been an experienced cattleman and familiar with the pasture, was this; “If you are going to rent a pasture for stock, and one had been burned and one was not burned, I would make fifty cents an acre difference.

Tes, sir, that would be a fair difference in the value.” While so much of the question as asked for a statement of the witness’ opinion as to “the damage” was objectionable, as a part of the same question he was asked to state his opinion as to “the difference between the value” of the pasture before and after the fire; and his answer gave an amount which he expressly stated as “the fair difference in the value.” The measure of damages was the difference in the value of the land because of the injury. The value of property is a matter of opinion. A witness may give his opinion on the question.

No objection was made that th'e witness here was not qualified by knowledge to give an opinion. His testimony shows that it related to value. It might have been preferable to have had him state his opinion as to the value of the pasture land before the fire and its value afterward, instead of stating the difference between the value before and after; but his answer had’ the same effect. In substance, it amounted to the same thing, and a court should look to the substance. We will not reverse a judgment upon such grounds. The testimony, and that of the other witnesses as well, under any fair

interpretation had reference only to the difference in the value of the land occasioned by the defendant’s wrongful act. That was the inquiry before the jury.

The charge informed the jury that if the verdict was for the plaintiffs, it should award them “such an amount of money as you believe from the evidence to be the reasonable value of the grass destroyed by the fire as alleged and the damage to the grass roots, if any,” and that “the measure of damages for injury to the roots is the difference in the value of the land before and after the burning for pasturage.” The verdict stated the amount found as the value of the grass destroyed, at $2.50 per acre for the 617 acres, or $1,542.50; and the amount of the damage to the'land as 50 cents per acre — a total of the two elements of damage of $1,851.00 — showing that double damages were not allowed and rendering criticism of the charge untenable.

The judgments of the District Court and Court of Civil Appeals are affirmed. HAWKINS, J., dissents, and will later file a statement of his views. É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes