Bradley v. Campbell

• Decision Date: 04 June 1908
• Citation: 132 Mo. App. 78,111 S.W. 514
• Parties: BRADLEY et al. v. CAMPBELL et al.
• Court: Missouri Court of Appeals

111 S.W. 514

132 Mo. App. 78

BRADLEY et al. v. CAMPBELL et al.

St. Louis Court of Appeals. Missouri.

June 4, 1908.

Rehearing Denied June 23, 1908.

REPLEVIN — LIABILITY ON DELIVERY BONDS — DESTRUCTION OF PROPERTY.

The destruction of goods by fire does not release defendant in replevin, retaining possession under a delivery bond, from his obligation to account to plaintiff for the value of the goods.

Bland, P. J., dissenting.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Replevin by George W. Bradley and others against Mary Campbell and others. Finding for plaintiffs. From an order granting a new trial, plaintiffs appeal. Reversed and remanded, with directions to set aside the order granting a new trial, to overrule the motion therefor, and to enter judgment for plaintiffs.

Ward & Collins, for appellants. C. G. Shepard and S. J. Corbett, for respondents.

BLAND, P. J.

The action is replevin, brought against defendant Mary Campbell for the recovery of specific personal property, consisting of household and kitchen furniture alleged to be of the value of $400. Plaintiffs executed the ordinary replevin bond, and on service of the writ on defendant Mary Campbell she executed a statutory delivery bond and retained possession of the property. At the close of plaintiffs' evidence, and after Mary Campbell had testified in her own behalf, on her motion, her husband, C. Campbell, was made a party defendant. The evidence shows that after she had executed her delivery bond Mary Campbell stored the furniture, and that all of it, except a few chairs, was accidentally destroyed by fire. The cause was submitted to the court without a jury. After hearing the evidence, the court found the issues for plaintiffs and assessed the value of the property at $368.40. Defendants filed a motion for new trial, which the court sustained, for the reason it was of opinion that plaintiffs were not entitled to recover, as at the time the cause was tried the property had been destroyed by fire while in the possession of defendant Mary Campbell and after she had executed her delivery bond for it. The appeal is from the order sustaining the motion for new trial.

Section 4476 of the replevin act (Rev. St. 1899, § 4476; Ann. St. 1906, p. 2454) provides that if the defendant fail in his defense, and "have not the property in possession, the court or jury shall assess the damages, and the judgment shall be against the defendant and his sureties, for the damages so assessed." When the defendant gives bond, and retains the property, and sells the same before the trial, the plaintiff is entitled to its actual value at the time of the sale. Dillard v. McClure, 64 Mo. App. 488. The general rule is that the value of the property should be assessed at the time of the trial. Richey v. Burnes, 83 Mo. 362; Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo. App. 76; Pope v. Jenkins, 30 Mo. 528. The latter case was to replevy a slave retained by the defendant on giving a forthcoming bond. The slave died preceding the suit. The court held that the defendant was not an insurer of the life of the slave, and it would be manifestly unjust to make him responsible for the act of Providence, which no prudence could avert, and which would probably have occurred, had the possession been with the adversary. Jennings v. Sparkman, 48 Mo. App. 246, was replevin for a number of mules retained by defendant by giving a forthcoming bond. One of the mules died pending the suit. The court held plaintiff could recover nothing under the head of value for the dead mule, unless he could show that the death happened through negligence or other fault of the defendant; that, if he ...