Niemetz v. St. Louis Agric. & Mech. Ass'n

• Decision Date: 02 January 1878
• Citation: 5 Mo.App. 59
• Parties: ADOLPH NIEMETZ, Appellant, v. ST. LOUIS AGRICULTURAL AND MECHANICAL ASSOCIATION ET AL., Respondents.
• Court: Missouri Court of Appeals

5 Mo.App. 59

ADOLPH NIEMETZ, Appellant,

v.ST. LOUIS AGRICULTURAL AND MECHANICAL ASSOCIATION ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 2, 1878.

1. In an action of trespass de bonis asportatis, where no element of fraud, malice, oppression, or gross negligence appears, and where there is no evidence of actual damage, only nominal damages can be recovered.

2. The mere wrongful asportation of a chattel, without any intention of appropriating it, or of depriving the owner of it, does not amount to a conversion.

3. In trespass de bonis asportatis, the measure of damages is the value of the goods at the time of the trespass, but if there is no evidence as to their value, only nominal damages can be recovered.

APPEAL from St. Louis Circuit Court.

Affirmed.

T. G. C. DAVIS and AUG. REBENACK, for appellant: Punitive damages.-- Goetz v. Ambs, 27 Mo. 28; Buckley v. Knapp, 48 Mo. 152. Speculative damages.-- Davis v. Talcott, 14 Barb. 611; White v. Mosely, 8 Pick. 356; Lacours v. Mayor of New York, 3 Duer, 406.

E. B. SHERGER, for respondent: Conversion.-- Simmons v. Lillystone, 8 Exch. 431; Foules v. Willoughby, 8 Mee. & W. 540; Sparks v. Purdy, 11 Mo. 219. Measure of damages.-- Carter v. Feland, 17 Mo. 383; Charles v. Railroad Co., 58 Mo. 458; Spencer v. Vance, 57 Me. 427. Speculative damages.-- Callaway Mining & Mfg. Co. v. Clark, 32 Mo. 305; Taylor v. Maguire, 12 Mo. 313; Giles v. O'Toole, 4 Barb. 261; Selden v. Cashman, 20 Cal. 56.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that plaintiff, being a tenant from year to year, and, as such, in possession of a tenement on the fair-grounds of defendant, the St. Louis Agricultural and Mechanical Association, the defendants forcibly, wrongfully, and unlawfully broke into and entered the building and retained possession of the same, and prevented plaintiff from carrying on his business as a confectioner there, and carried on plaintiff's business, and took the profits, to his damage $2,000. The second count alleges that defendants took and converted to their own use property of plaintiff in said building, the items of which are set out, to his damage $2,000. The answer is a general denial, and an allegation that the corporation defendant, at the time of the alleged wrongs, owned the premises described; that the tenement was a booth on the fair-grounds of the corporation defendant, and that the defendants Hastings and Smith entered into the same under a license of defendant, the St. Louis Agricultural and Mechanical Association, as they had a right to do. The new matter is denied by a replication.

It appears from the testimony that defendant Hastings occupied, under a license from the defendant the St. Louis Agricultural and Mechanical Association, a frame building on the fair-grounds during the fair-week of many successive years. Afterwards, in 1870, the plaintiff was put into possession of this building, as he says, as tenant from year to year, at the rate of $150 a year, but, as defendants' witness says, under an agreement which was renewed from year to year whilst he remained there, and which gave him the right to use the building only during the fair-week of each year, and such time before and after as was necessary for fitting up the place and removing his goods. The building was a frame, thirty-four feet by eighteen, having several glazed windows and a door, and was used by plaintiff as a restaurant and cook-shop. The plaintiff went to some expense in fitting it up; put in a boiler, benches, chairs, cooking-range, and utensils, dishes, plates, crockery, knives and forks, table-linen, an ice-box, and various articles. All this cost him, he says, $2,000. But as to the value of the articles there is no testimony. He was in the habit of locking up the shed and boarding up the windows during the period between the annual fairs, and leaving this property there. In 1873, a few days before the fair, defendant the St. Louis Agricultural and Mechanical Association rented the shed to defendants Hastings and Smith for the fair of that year, without notice to plaintiff, and put them in possession by breaking open the door, prying out a staple to which plaintiff had attached a padlock. Defendants Hastings and Smith at once proceeded to remove all the property of plaintiff from the building. The small articles were found packed in boxes. Every thing was taken out with care, and deposited on a platform on the south side of the shed. Plaintiff went out to the fairgrounds whilst this was going on, and, after remonstrating with defendants and protesting against their action, took away his property. Defendants' witnesses say that the property was not damaged in the least. The testimony of plaintiff is, that the boiler was utterly destroyed, and that a fourth part of the things were broken and lost, and that the remainder, being of no use to him except for the special purpose for which he had employed them, were sent to auction, and sold for $45. There was a verdict and judgment for plaintiff for one dollar on the first count of his petition, and a verdict for defendants on the second count; and plaintiff appeals.

The plaintiff asked the court to instruct the jury substantially as follows:

1. That if defendants broke into plaintiff's restaurant and threw out and injured his goods, they should assess damages under the second count, in such sum as will compensate him for the loss.

2. If plaintiff was in possession under a parol agreement with the president of defendant the Agricultural and Mechanical Association, having been in such possession for three years, regularly paying his rent, and defendants forcibly entered and turned him out, and keep him out, plaintiff has a right to recover, under the first count, full compensation for his loss.

3. If defendants, in combination with one another, committed the wrongs complained of in the first and second counts, with the intention to injure plaintiff, the jury may assess the damages at such sum, not exceeding $2,000 in either count, as they may think proper.

These instructions were refused. The court, of its own instance, instructed the jury...