Freidenheit v. Edmundson

• Decision Date: 31 August 1865
• Parties: GENSON FREIDENHEIT, Defendant in Error, v. JOHN EDMUNDSON et als., Plaintiffs in Error.
• Court: Missouri Supreme Court

36 Mo. 226

GENSON FREIDENHEIT, Defendant in Error,

v.JOHN EDMUNDSON et als., Plaintiffs in Error.

Supreme Court of Missouri.

August Term, 1865.

Error to Buchanan Court of Common Pleas.

The court instructed the jury on plaintiff's motion:

1. If the jury believe from the evidence that defendants with other persons wilfully and intentionally broke open the storehouse of the plaintiff, and wilfully and intentionally took and carried away therefrom divers articles of clothing or merchandise, forcibly and against the will of the plaintiff, they will find for the plaintiff the value of the goods so taken with interest thereon from the time the same were taken, and they may also find such further sum as to them may seem right in the way of exemplary damages, in all not exceeding five thousand dollars, the amount set forth in plaintiff's petition.

2. If the defendants, or either of them, were present and encouraged by words or otherwise others in the taking of said goods, they are as liable as if they actually took the goods themselves.

The court gave the above instructions, to which the defendants excepted.

The defendants then moved the court to instruct the jury as follows:

1. If the jury believe from the evidence that defendants either entered plaintiff's store and took his goods therefrom, or aided and encouraged others in so doing, they will find for the defendants, or such of them as are not guilty of so taking said goods, or aiding others in doing the same.

2. If the jury find for the plaintiff, the measure of damages is the value of the goods taken with interest thereon, from the time the same were taken, at the rate of six per cent. per annum.

The court gave the first instruction and overruled the second, to which opinion overruling the second the defendants excepted.

H. M. & A. H. Vories, for plaintiffs in error, cited Dozier v. Germain, 30 Mo. 216, and Goetz v. Ambs, 22 Mo. 170.

Ensworth & Grubbe, for defendant in error.

The respondent takes the position that the court below ruled right in each and all of its rulings aforesaid, and in support of his position cites the following authorities: 27 Mo. 33-4; 14 Mo. 110; Hardin's R., Ky., 586; 1 Lit. Select Cas. 81; 1 Bibb, 248; 4 Lit. 162; 3 Mars. 455-6; 7 Mon. 395; 8 B. Mon. 432; 1 Mass. 11; 3 Wend. 391; 11 Pick. 379; 2 Gilm. 432; Sedg. on Dam. 38 & 453, and Appendix 622, and authorities there cited.

HOLMES, Judge, delivered the opinion of the court.

This case comes up by writ of error from the Buchanan Court of Common Pleas. The amended petition on which the case was tried, filed at the January term, 1864, states that the defendants, conspiring together and forming a design to resist the laws of the United States, wrongfully and with force of arms entered the plaintiff's store, while he was present, and took and carried away a large quantity of ready made clothing, taken promiscuously from his stock of goods, (the precise number and kind of the articles he cannot recollect, having been prevented from taking an inventory of them), and of about the value of twenty-five hundred dollars; and that said defendants and others unknown to him were armed with implements of war, and put the plaintiff in fear of his life, to his great damage in the loss of his property, the breaking up of his stock, and personal injury in the sum of five thousand dollars, for which he asks judgment. The answers of the defendants denied the allegations of the petition, and at the June term, 1865, there was a trial and verdict for $4.500 damages for the plaintiff. The defendants moved for a new trial chiefly on the ground that the instructions given and refused were erroneous, and that the damages were excessive. At the suggestion of the court, the plaintiff entered a remittitur of one thousand dollars, and the motion for a new trial was overruled.

The evidence tended to prove the facts stated in the petition, and it appeared that the defendants, with others, engaged in raising military companies for the purpose of joining Sterling Price's army, and making war on the United States and the provisional government of this State, and, armed with military weapons, forcibly broke open the doors of the plaintiff's store, though shut up by him, and, putting his life in danger, abstracted several wagon loads of clothing, the exact value of which the witnesses could not state. One witness saw seven loads brought on the shoulders of men, and thrown into two wagons, the value of which he thought might be $800 or $1,000; and other witnesses saw goods brought out and thrown into six different wagons, the value of which they could not state. And it was admitted that the defendants took, or aided in taking, the goods in question.

The court instructed the jury to the effect, that, if the defendants forcibly broke...