Allred v. Bray

• Decision Date: 31 October 1867
• Parties: THOMAS W. ALLRED, Respondent, v. MARK BRAY, Appellant.
• Court: Missouri Supreme Court

41 Mo. 484

THOMAS W. ALLRED, Respondent,

v.MARK BRAY, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from Christian Circuit Court.

The plaintiff asked the following instructions, which the court gave:

1. If defendant aided or assisted in taking the goods, or any part thereof, at the time specified, he is liable for the entire amount taken.

2. If the defendant was then aiding or abetting or countenancing said robbery, he is responsible for the damage sustained by plaintiff.

The defendant asked the following instructions:

1. Unless the defendant was present and took, or, being absent, endorsed the taking of the goods charged in the plaintiff's petition, he is not liable for the goods taken, nor for damages for the taking of the same.

2. If the goods were taken by the public enemy, the defendant is not responsible.

3. Though the defendant may have had some of the goods in his possession, unless he had them under such circumstances as induces the belief that he intended to appropriate them to his own use, and deprive plaintiff of the property of the same, he is not liable any further than the mere value the goods he had in his possession.

4. If the plaintiff had abandoned the goods upon the approach of the public enemy, they became the property of the public enemy, when appropriated by the same; and if after such appropriation by said public enemy such enemy disposed of said goods, the parties to whom they were so disposed cannot be held responsible for the trespass.

5. If said goods were taken during the absence of defendant, he is not liable unless he is proven to have previously advised the taking, or done some act in aid thereof.

6. Defendant, if liable at all, is only liable for such goods as he actually took himself, and not liable for what said company took, unless defendant belonged to said company.

Of which the court gave the first, third, and fifth, and refused the second, fourth, and sixth.

Krum, Decker & Krum, for appellant.

To make a party liable as joint trespasser for the acts of others, it must be alleged and proved either that they acted in concert, or that the act of the party sought to be charged ordinarily or naturally produced the acts of the others--2 Hill. Torts, 446-9; Brooks v. Ashburn, 9 Geo. 298; Sartin v. Saling, 21 Mo. 387.

It is error to give instructions, even if correct in the abstract, unless there is evidence to support them--Atkin v. Nicholson, 31 Mo. 91; Kennedy v. N. Mo. R. R., 36 Mo. 351; Jaccard v. Anderson, 37 Mo. 91.

In trespass for taking goods, the goods must be specifically described in the petition--2 Hill. Torts. 203.

The measure of damage in an action of trover or trespass de bonis asportatis, can be no more than the value of the goods at the time of the conversion. The action is brought in this instance to recover this value; no more is claimed in the petition. The measure of damage upon this petition could only be the value of the goods at the time, and not all damages sustained by plaintiff by reason of robbery--State to use v. Smith, 31 Mo. 566; Freidenheit v. Edmunson, 36 Mo. 226.

As under this form of action the plaintiff could not recover more than the value of the specific goods at the time, with interest, and as there was no evidence of value, the damages as assessed are necessarily excessive, and for this reason judgment should be reversed--Goetz v. Ambs, 21 Mo. 171.

The proof shows that the goods were taken by the public enemy, who took possession with overpowering force. Defendant did not belong to this rebel army, had no connection with it, nor can he be made responsible for its acts, which were not done by his direction or knowledge. The doctrine of assent as foundation for an action against him as joint trespasser has no application to seizure by an enemy in time of war. His assent or dissent under the circumstances would have been equally unimportant. The rebel army had confiscated the goods, and although de jure Allred's property might continue, de facto the goods were lost to him; and it seems a gross wrong to hold the defendant, who subsequently approved the trespass, not done for his benefit nor instigated by him, liable for Allred's loss. The trespass was not committed for his benefit, nor did he have any profit of it, and therefore the sixth instruction ought to have been given for the appellant.

Ewing & Holliday, for respondent.

The law of the case was properly declared in the instructions given by the court--2 Hill. Torts, 464; Hare v. Little, 28 Ala. 236; Clark v. Boles, 15 Ark. 452; Owens v. Derby, 2 Scam. 26.

The sixth instruction asked by defendant is manifestly erroneous. It limits the liability of defendant to such goods only as he may have actually taken himself, and excludes entirely the hypothesis of a common participation between defendant and others in the alleged trespass, and establishes a several liability therefor. It also erroneously assumes or infers his non-liability if he did not belong to “said company.” Although not being a member of the company, he may have actually participated in the trespass.

FAGG, Judge, delivered the opinion of the court.

There seems to be no principle of law better settled than that all persons who wrongfully contribute in any manner to the commission of a trespass, or after the same has been committed for their benefit assent to t, are responsible as principals, and each one liable to the extent of the injury done. This was an action of trespass instituted against the appellant Bray, who, as the petition alleges, together with other persons unknown to the respondent, wrongfully took a large quantity of goods, the property of the respondent, by which he was damaged in the sum of three thousand dollars.

The answer is simply a denial of the allegations of the petition. The proof shows that respondent's storehouse, situate in the town of Linden, in the county of Christian, was broken open and robbed of a large amount of goods, by a company of rebels connected with the army commanded by Sterling Price, in the month of August, 1861; that on the next day, and whilst the company was still in possession of the store, the appellant Bray was seen to come out of it with some of the goods in his hands, and one...