T. & St. Louis R. R. Co. v. J. M. Reid and Wife, 1 White & W. 120

Opinion by Willson, J. § 296. Joinder of parties; how affected by amendment setting up a new and different cause of action. The suit as it was originally brought was for damages to land, which land was alleged to be the separate property of the wife, Dixie Beid. We think the wife was not improperly joined in the original suit as plaintiff. [Sayles & Bassett, Pl. & Pr. sec. 269.] But the amended petition abandoned the original cause of action, and claimed damages for injuries done to crops, and injuries done to the feelings of J. M. Reid, the husband, and also for exemplary damages.

This amendment changed entirely the character of the suit, and presented a state of facts which rendered the further joinder of Dixie Reid as a plaintiff improper and fatal to the suit. The right of action, as set forth in the amendment, was alone in J. M. Reid, and he alone could be permitted to prosecute it. [Sayles & Bassett, Pl. & Pr. sec. 278.] It was error to entertain the suit in. this shape. November 11, 1882. § 297. Charge of the court; not warranted by evidence or pleading.

A charge of the court which instructed the jury that they might find damages for the use of the occupation of the land from the time defendants entered thereon until the right of way was legally acquired, when there was not a particle of evidence to prove the value of such use and occupation, was erroneous; and it was error to instruct the jury that plaintiffs might recover damages to crops on the land from overflow, when there was no allegation in the pleadings to authorize it. § 298. Measure of damages for injuries to or destruction of crop.

Where a crop is injured or destroyed, the measure of damages is the actual value of the crop which was injured or destroyed at the time of such injury or destruction, with legal interest upon the amount from that date. [2 Thompson on Neg. 1262, and cases there cited.] Reversed and remanded.