O'Connell. v. Rosso

• Decision Date: 19 November 1892
• Citation: 20 S.W. 531,56 Ark. 603
• Parties: O'CONNELL. v. ROSSO
• Court: Arkansas Supreme Court

20 S.W. 531

56 Ark. 603

O'CONNELL. v. ROSSO

Supreme Court of Arkansas

November 19, 1892

APPEAL from Arkansas Circuit Court, JOHN A. WILLIAMS, Special Judge.

Joe Rosso sued John O'Connell and H. P. Bradford, in Jefferson circuit court, and alleged that in April, 1888, he contracted with defendants to take charge of the "Recreation Park," in Pine Bluff; that plaintiff under the contract and agreement made between him and defendants, was to and did enter into possession of said park in April, 1888; that he was put into possession thereof under said agreement for the purpose of supplying visitors with soda water, lemonade, ice cream, luncheon and other confections and articles usually kept in the line of refreshments; that, having entered into possession under the agreement, he supplied himself, at great cost and expense with a soda fountain, ice cream, lemonade and other articles and confections for the purpose of supplying visitors, and employed a band of music for those visitors at the park who desired to engage in dancing, and plaintiff was to be allowed to collect from the dancers a fee for the music rendered. Plaintiff stated that it was agreed by defendants that, in consideration of the supplies and refreshments furnished by him as aforesaid, he should be entitled to any profit he should make from sales to visitors and money collected for music rendered, and that he should have the exclusive use and possession of said park for that purpose until November 1 1888, free of rent. Plaintiff stated that the defendants, on or about the 29th day of June, 1888, in violation of their said contract and agreement with plaintiff and in violation of the rights of plaintiff, without legal process or authority of law, forcibly ejected plaintiff from the park and grounds, and forcibly and unlawfully threw his soda fountain and apparatus, furniture, goods and other supplies and confections out of the park, whereby plaintiff was damaged in loss of money, of time and of profits in his business then and there engaged in, by being thrown out forcibly as aforesaid and against his will, in the sum of fifteen hundred dollars. Wherefore plaintiff prayed judgment for said sum and costs and all other proper relief.

The defendants, for answer to the complaint, stated:

They denied that they ever made a contract with plaintiff, as stated in his complaint, or otherwise. They denied that plaintiff, under an alleged contract or in any other way, was in possession of what is known as "Recreation Park," but state that the park is now, and was at the time mentioned in the complaint, the property of the Citizens' Street Railway Company, and has, during the entire period, remained in possession of said street car company. Defendants state that, about the month of April 1888, the plaintiff was permitted by the said Citizens' Street Railway Company to supply refreshments to visitors to said park, and for that purpose was allowed to come upon said premises, such permission being conditioned upon the defendant so conducting himself and his said business as to meet the approval of the said Citizens' Street Railway Company, and at no time was the possession of said premises yielded to plaintiff. And they deny that such contract as stated in the complaint was made by the plaintiff with these defendants. Defendants state that, on or about the 28th of June, 1888, the plaintiff, unlawfully and with force and arms, set upon, insulted and assaulted and vulgarly abused a number of persons who were enjoying themselves in the park of the said Street Railway Company, and so disturbed the peace that he was arrested and forcibly removed from said park because of his unlawful and riotous conduct; that, by reason of plaintiff's disgraceful and outrageous conduct, his assault upon and vulgar abuse of the guests and patrons of said Street Railway Company, it became impossible for the said company or its employees to peaceably enjoy said premises, and defendants, as the officers and agents of said Street Car Company, forbade the plaintiff to come upon said premises after the 29th day of June, 1888, and, on the 29th day of June, 1888, removed from said park certain articles placed there by plaintiff and which were there only upon the conditions upon which plaintiff himself was allowed to be there, and only after plaintiff had forfeited all right or permission to have the same remain upon said premises, and such removal was peaceable and without force or injury to plaintiff; nor was plaintiff's business injured by such act, for by reason of plaintiff's outrageous conduct he had destroyed all profitable business hitherto enjoyed by him at said park. Wherefore they prayed judgment.

On defendants' motion the case was transferred, on change of venue, to Arkansas county.

There was evidence that tended to support the allegations of the complaint. Plaintiff submitted with his testimony an itemized list of losses incurred and damages claimed by him which was as follows:

Ten gallons of syrup spoiled, worth

$ 24 00

Damage to cook-stove, utensils, fixtures, loss on

goods, such as meats, fish, vegetables and

restaurant supplies

35 00

Damage to stock of cigars by exposure, breakage

and shortage

15 00

Paid for cigar license

2 40

Two-thirds of barrel of gasoline, evaporated

10 00

Coal oil lost

3 00

One and a half barrels cider, worth

6 00

Twenty-three pairs of skates, which I ordered for

the rink in the park, at $ 1.25 per pair

28 77

Two dozen chairs

16 00

Damage to tables

4 00

Ice box

7 00

Expense of moving my household goods to be near

the park

7 50

Freight charges paid on soda fountain from Boston

to Pine Bluff, ordered for park

20 75

To cash paid four musicians to get them to come

from Hot Springs to Pine Bluff

20 00

Expenses of trip to Little Rock

15 00

Expenses of trip to Pine Bluff

25 00

Two months salary for time lost after leaving park

until engaged in present business at one hundred

dollars per month

200 00

Probable profits

500 00

The court ordered the last four items to be erased from the list and permitted the jury, upon retiring, to take with them the list so erased.

At the plaintiff's request the court gave the following, among other, instructions, viz:

"4. If the jury believe from the evidence that the defendants wrongfully ejected the plaintiff from said park, as charged in his complaint, either by themselves or their servants at their direction, and that this was done in a reckless disregard of the rights of plaintiff, and the plaintiff has suffered any actual damages therefrom, then the jury are authorized to find exemplary damages, that is, such damages as will compensate plaintiff for the wrong done him and to punish the defendants and to furnish an example to deter others from the like practices."

"5. If the jury believe from the evidence that the plaintiff was wrongfully ejected by the defendants or their agents, and without any conduct on the part of the plaintiff as worked a forfeiture of his contract, they may consider the expense plaintiff incurred in making preparations for carrying out the contract and allow plaintiff such part of this expense as they think right under all the circumstances."

The court refused to give the following instruction asked by defendants, viz:

"6. The jury are instructed that any damages that they may find from the evidence that O'Connell and Bradford sustained by reason of wrongful and improper conduct on the part of Rosso, may be considered by them in mitigation or satisfaction of any damage they may find from the evidence Rosso sustained by reason of wrongful conduct on the part of Bradford and O'Connell."

The jury returned a verdict in favor of plaintiff in the sum of $ 750. Defendants have appealed, and insist that the court erred in giving instructions 4 and 5 asked by plaintiff, in refusing instruction 6 asked by defendants, in permitting plaintiff to testify as to certain losses incurred by him, and in allowing the jury to take to the jury room the list of losses submitted by plaintiff.

Judgment reversed and cause remanded.

J. M. & J. G. Taylor for appellants.

1. The court erred in admitting plaintiff's testimony that he had expended $ 200.00 to secure musicians, and other items for freight charges, moving goods, &c., before breach of contract, and in allowing the jury to consider such expenditures It was also error to permit the jury to take with them the list containing these items to the jury room. The presumption is, it had some influence with the jury. 102 U.S. 459-460; 43 Ark. 102.

2. It was error to charge the jury as to exemplary damages. 1 Suth. on Dam. p. 716 et seq.; 91 U.S. 492; 21 How. 213; 16 S.W. 789; Cooley on Torts, p. 694 and note; 35 A. & E. R. Cases, p. 466.

3. Defendants were entitled to recoup such damages as they had sustained by the improper conduct of plaintiff in carrying on his business pursuant to his contract. 2 Metc. (Ky.), 539; 1 Suth. Dam. p. 724, 226-7; 1 Story, 100; 132 U.S. 531; 1 Suth. Dam. p. 229 and note; 4 S. & R. 249; 14 How. 443; 120 U.S. 630; 22 Pick. 510, 517; 1 Baldw. 59; 41 Ark. p. 300, 301; 53 Ark. 7.

S. M. Taylor and J. W. Crawford for appellee.

1. Expenditures in preparation for the performance of a contract, which were a necessary preliminary to its performance, or within the contemplation of the parties as necessary, are properly estimated in assessing damages for breach of the contract. I Suth. Dam. p. 121; T. Raym. 77; 2 Cush. 46; 4 id. 408; 8 Barb. 423; 5 Iowa 266.

2. The allegations of the complaint and the proof show a case for exemplary damages. 35 Ark 492; Addison, Torts, (3 ed.), p 992; 15 Ark. 452; Sedg. Dam. (6 ed.), P. 554. Defendants made no objections to the sufficiency of the complaint, and, both parties having...