Lindenlaub v. Ozora Marble Quarries Co., 22823.

• Decision Date: 08 May 1934
• Docket Number: No. 22823.,22823.
• Citation: 70 S.W.2d 1110
• Parties: LINDENLAUB v. OZORA MARBLE QUARRIES CO.
• Court: Missouri Court of Appeals

70 S.W.2d 1110

LINDENLAUB v. OZORA MARBLE QUARRIES CO.

No. 22823.

St. Louis Court of Appeals. Missouri.

May 8, 1934.

Rehearing Denied May 22, 1934.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be reported in State Reports."

Action by Albert Lindenlaub against the Ozora Marble Quarries Company, which filed a counterclaim. From a judgment for plaintiff, the defendant appeals.

Affirmed on condition of remittitur; otherwise reversed and remanded.

B. W. La Tourette, of St. Louis, for appellant.

Frederick A. Wendt, of St. Louis, for respondent.

BECKER, Judge.

This action originated before a justice of the peace. On a trial de novo in the circuit court, the case being tried to a jury, a verdict resulted in favor of plaintiff for $576.52 and against the defendant on its counterclaim. From the resulting judgment the defendant appeals.

The abstract of the record fails to set out therein either the petition filed by plaintiff or the counterclaim filed by defendant in the justice court, and on which pleadings, so far as the record discloses, the case was tried de novo in the circuit court. From the summons issued by the justice we glean plaintiff's action against the defendant is "founded upon account and damages, and wherein he demands $738.25, and interest and costs."

The case was submitted to the jury upon two instructions requested by plaintiff on the measure of damages alone. No instructions were requested by defendant. The instructions given read as follows:

"If the jury find the issues in favor of the plaintiff on the first count as shown by the evidence, in assessing the amount of his recovery you will take into consideration the reasonable value of his services, together with the equipment furnished, if any, not exceeding the amount of $452.75, and for interest thereon at the rate of 6 per cent. per annum from the date you find demand of payment was made, if you find such demand was made."

"No. 2.

"If the jury finds the issues in favor of the plaintiff, in the second count, in assessing the amount of his recovery you will take into consideration the reasonable value of any necessary repairs, if any, made upon the fifth wheel and trailer not exceeding the sum of $97.50, and if you find and believe that said fifth wheel and trailer was used by plaintiff in his business, you may also take into consideration the reasonable value of its use, if any, for a period not longer than was reasonably necessary for its repair, not exceeding the sum of $25, and assess the plaintiff's damages at such sum, not exceeding $122.50, as will fairly and justly compensate him for the damages sustained, if any, on this count."

Appellant here assigns as error the giving of each of the said instructions; the first complaint being that each of these instructions was misleading, in that it assumed certain material facts as true which were in fact in serious controversy. A reading of the instructions discloses that the point is without merit, in that each of the instructions defines the measure of plaintiff's damages only "if the jury find the issues in favor of the plaintiff."

It is next urged that each of these instructions on the measure of damages was erroneous, in that each "fixed in the minds of the jurors a maximum to be allowed, without disclosing any reason for fixing this maximum, and without laying any basis for the same."

It is true that each of the instructions limits the maximum which the jury could find in the way of damages in favor of the plaintiff, if they found the issues for the...