Dunham v. Miller

• Decision Date: 02 January 1911
• Citation: 133 S.W. 675,154 Mo.App. 314
• Parties: RUSSELL DUNHAM, Defendant in Error, v. MADISON MILLER, Administrator pendente lite, Plaintiff in Error
• Court: Kansas Court of Appeals

133 S.W. 675

154 Mo.App. 314

RUSSELL DUNHAM, Defendant in Error, v. MADISON MILLER, Administrator pendente lite, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

January 2, 1911

Error to Clay Circuit Court.--Hon. Francis H. Trimble, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Simrall & Simrall, W. E. Fowler, Wm. G. Holt, Culver & Phillip and I J. Ringolsky, of counsel, for plaintiff in error.

(1) Instruction No. 1, given for the plaintiff, is erroneous because it comments on evidence; is argumentative; assumes facts as proven and is misleading. Landrum v Railroad, 132 Mo.App. 717; Johnston v. Railroad, 117 Mo.App. 308. (2) Instruction No. 3 given for plaintiff is erroneous, because the petition prays for special damages and special sums for each item. These special items and the amounts must be established by evidence. The instruction is incorrect "in its general scope." It gives the jury a roving commission to exercise its own fancy as to the amount of damages. It is clearly erroneous. Browning v. Railroad, 124 Mo. 55; Hughes v. Hood, 50 Mo. 35; Knight Bros. v. Railroad, 122 Mo.App. 38; Van Buskirk v. Railroad, 131 Mo.App. 357; Flaherty v. Transit Co., 207 Mo. 318; Nat'l Handle Co. v. Huffman, 140 Mo.App. 162; Partello v. Railroad, 141 Mo.App. 162; Am. and Eng. Ency. Law (2 Ed.), p. 682; Salzgeber v. Mickel, 60 P. 1009; Moore v. Winter, 27 Mo. 380. (3) It is erroneous also, because the evidence in this case did not justify the giving of punitive damages. Kennedy v. Railroad, 36 Mo. 351; Pruitt v. Quarry Co., 33 Mo.App. 18; Tranerman v. Lippincott, 39 Mo.App. 478; Leavell v. Leavell, 122 Mo.App. 654; Leiter v. Day, 35 Ill.App. 248; McNamara v. Transit Co., 182 Mo. 676. (4) Instruction No. 5 given for plaintiff is erroneous because it recites certain facts and tells the jury, such facts if found make the entry of defendant "unlawful, wrongful and malicious." It is purely an argument by the court. It invades the province of the jury. It leaves out of consideration all the other facts and circumstances testified to and shown in the record. Pruitt v. Quarry Co., 33 Mo.App. 18; Tranerman v. Lippincott, 39 Mo.App. 478; 2 Sutherland on Damages sec. 394; Callahan v. Ingram, 122 Mo. 355. (5) The verdict is excessive, not supported by evidence and the result of bias and prejudice on the part of the jury.

T. B. Buckner for defendant in error.

(1) The defendant cannot complain that his instructions specified the grounds of recovery, by a reference to the pleading, because if error, it was a selfinvited error. Neither can he complain of an error on appeal when he has propagated such error; nor can he complain of instructions, even though they are erroneous, when his instructions embrace the same doctrine. Reilly v. Railroad, 94 Mo. 600; Thorpe v. Railroad, 89 Mo. 650; Holmes v. Railroad, 82 Mo. 610; Smith v. Culligan, 74 Mo. 387; Whitman v. Supreme Lodge, 100 Mo. 36. (2) And having tried the case upon the theory that plaintiff was entitled to recover, if at all, for being deprived of the use of said premises and the losses occasioned thereby, which theory is embraced in the instructions of defendant, he cannot be heard to say on appeal that the theory was an incorrect one. Black v. Railroad, 172 Mo. 177; Tomlinson v. Ellison, 104 Mo. 105; State ex rel. v. Chick, 146 Mo. 645; Tube Works Co. v. Ice Machine Co., 201 Mo. 30; Tetherow v. Railroad, 98 Mo. 85.

OPINION

ELLISON, J.

Plaintiff's action is founded on an alleged trespass to real estate which he had rented of defendant. He recovered damages in the trial court.

It appears that defendant rented to plaintiff a tract of ground known as "a part of Regent Park," in Excelsior Springs, Mo. The park was of diversified topography and the part which plaintiff rented was "in the flat" of the tract; and it was "to be used for tennis and croquet grounds only." The lease was from the 8th of May to the 1st of December, 1908, at the rate of $ 25 per month.

Plaintiff charged that the tennis and croquet grounds which he purposed preparing were to furnish a place of amusement for the people who visit the hotels in Excelsior Springs for health and pleasure. That after he had prepared two places for each of these games and before he had opportunity to prepare others, defendant "unlawfully, wrongfully, intentionally and maliciously" entered on the grounds, took possession thereof and destroyed what plaintiff had up to that time prepared, so that he was thenceforth deprived of the use thereof and that he was compelled to abandon the use thereof for the balance of the term. The remainder of the petition is best stated in the words thereof, viz.: "That said grounds and the rental value thereof for the purposes which plaintiff was going to use the same, was and is of the reasonable value of $ 300 per month and plaintiff's profits for said use would have amounted to said sum; that plaintiff at great expense had arranged to convert said tract of ground into tennis courts and croquet grounds, to-wit, the sum of $ 200, and that by reason of defendant unlawfully taking possession of said premises the plaintiff has been actually damaged in the sum of $ 1000.

"Plaintiff further states that the acts of defendant in taking possession of said property was unlawful, wrongful, intentional, malicious and wilful. He therefore prays judgment for punitive damages in the sum of $ 1000. By reason of all which he asks judgment against the defendant in the sum of $ 2000."

Interpreting the petition as liberally for plaintiff as its language will allow, we understand it to charge two items of special damage, one of loss of rental value of the premises in the sum of $ 300 per month, and the other for money laid out in preparing the grounds for the games, in the sum of $ 200; the whole amounting to $ 1000 actual damages. The petition does not allege profits as an item of special damages; in addition to the rental value. As we understand it, the pleader mentions profits merely as a reason why the rental value was the sum stated. Other allegations of the petition show that by reason of his being ousted by defendant, plaintiff lost the remaining period of the lease, which was about three months. The loss of this account was therefore $ 900. If we are to add loss of profits, in the same amount, in addition to this sum, we have a loss of $ 1800 stated; and if we add to this the other item of $ 200 for expense in preparing the ground, we have a total of $ 2000 for actual damages, whereas, as shown by instructions asked by him, plaintiff only claimed $ 1000 as the total sum which he could recover under the allegations of the petition. It seems there was no evidence offered to show what the rental value was and plaintiff is standing upon the claim that he has charged a loss of profits and that the evidence in his behalf supports the latter allegation. It would be far better for the petition to be drawn in such plain way as not to leave room for discussion between counsel as to what it means. If loss of profits is too be relied upon as an item of actual damage, it should be so alleged in specific terms with the amount thereof, and not left to inference. If the total of actual damages claimed is to be the sum of the specific items alleged, set it down in that way so that there can be no dispute about it; and if it is intended to ask a sum for general damages in addition to those specified, let that appear to be the intention on the face of the paper.

But we are satisfied that under no meaning...