Young v. Stevenson , 75 Ark. 181 ( 1905 )

McCueeoch, J.,

(after stating the facts.) Appellants insist that the judgment must be reversed because the^ verdict embraced elements of damages not claimed in the complaint. This would follow if they had objected to the introduction of evidence as to the added elements of damages, and saved their exceptions thereto. They did object, but the court admitted the evidence, and they failed to preserve their exception in the motion for new trial, and therefore are -held to have waived it.

Their exception to the ruling of the court in refusing to give the three instructions asked en masse cannot be noticed, as two of them are not correct declarations of law. It has been many times held by this court that a general exception to several instructions will not be entertained on appeal if any of them be good. Dunnington v. Frick Co., 60 Ark. 250; Oxley Stave Co. v. Staggs, 59 Ark. 370; Fordyce v. Russell, 59 Ark. 312; Quertermous v. Hatfield, 54 Ark. 16; Frauenthal v. Bridgeman, 50 Ark. 348. It is equally true that a general exception to the refusal to give several instructions, requested collectively, will not be considered here on appeal if any of them are bad. Teague v. Lindsey, 106 Ala. 266; Fleming v. Latham, 48 Kansas, 773; Murphy v. McNulty, 145 Mass. 464; Wimbish v. Hamilton, 47 La. Ann. 246; Delude v. St. Paul City Ry. Co. 55 Minn. 63.

The pleadings must be considered as amended so as to conform to the evidence. Davis v. Goodman, 62 Ark. 262.

The only question, therefore, properly raised and presented for our consideration is whether, upon the testimony, the plaintiff should have recovered for the items of damages embraced in the verdict. The liquor license issued by the county court to Mulraney was not transferable, and plaintiff was violating the law in attempting to do business under the same. The contract appointing appellee as agent of Mulraney, with power to sell liquor under the license issued to the latter, was no more nor less than an attempt to evade the law, and must be treated as an assignment of the license. Mulraney sold the stock of liquor to appellee, who became the sole participant in the profits of the business, and Mulraney had no further interest therein. It is settled that no one can recover damages for the interruption of an unlawful business. 13 Cyclopedia of Law, p. 59; 3 Suth. on Dam. § 869; 1 Joyce on Dam. § 445; Raynor v. Valentine Blatz Brewing Co., 100 Wis. 414; Kauffman v. Babcock, 67 Tex. 241, 2 S. W. 878. The two items of amounts paid to appellee’s barkeeper and porter fall clearly within the rule announced, even if we hold that the deprivation of their, services was not too remote to be the subject of recovery for' damages. The levy of the execution upon the stock of liquor did not deprive appellee of the services of these employees except in the operation of the unlawful business. He could have otherwise employed them; even if he failed to find other employment for them, he could not complain that the appellants prevented him from enjoying their services in the unlawful undertaking.

The other two items stand upon a different basis. The appellants deprived the appellee of the use of his house during the period it was withheld. The use of the house was of substantial value, and the fact that appellee was, at the time of the levy, conducting an unlawful business therein did not work a forfeiture of his right to enjoy the use of it for a lawful purpose. The same rule applies to the 'value of the beer which spoiled during the time it was wrongfully withheld from appellee, and he was entitled to recover for- its value. The fact that he held it for unlawful sale did not justify the appellants in wrongfully depriving him of his property right therein.

If appellee will, within two weeks, enter a remittitur of $65, the judgment will be affirmed; otherwise it will be reversed, and remanded for a new trial.