Herman v. Owen , 1890 Mo. App. LEXIS 392 ( 1890 )

Gill, J.

This is an action for double damages for injuries done to the personal property belonging to the plaintiff — the action brought under the provisions of section 3928, Revised Statutes, 1879. The suit originated before a justice of the peace, was appealed to the circuit court, tried, and a verdict by jury fixing the damages at twenty-five dollars, followed by the judgment of the court for double the amount. The defendants bring the case here by appeal. The facts shown by the evidence are substantially these : The plaintiff, Greorge Herman, had been in possession and occupying the premises mentioned in the petition for about sixteen years prior to the trespass complained of. About a year prior to said trespass, he and Ms wife had separated, she removing to another part of the city of St. Joseph, the plaintiff continuing to live at the house, having his household goods there, and sleeping there. The defendants, by their own confession, entered said dwelling in the absence of the plaintiff, and removed plaintiff’s household goods and personal property, and placed it in the yard. The property removed by defendants was found by them in the second story of the building. When found by plaintiff, and seen by the other witnesses, immediately after it had been thrown out by defendants, it was scattered about the yard, much broken and damaged, apparently having been thrown from the upper windows. The curtains had been torn from their fastenings, which remained attached to the walls; the bureau, bedsteads, clock, stoves, chairs, etc., were scattered, broken and damaged. The contents of the bureau were missing, etc. At the close of the evidence, the court at the instance of plaintiff instructed the jury as follows :

“ 1. The court, on behalf of the plaintiff, instructs the jury, that if they believe from the evidence, that on or about the twenty-third of August, A. D. 1887, the defendants wantonly or maliciously injured or destroyed the furniture and personal property of plaintiff, mentioned in evidence, they will find for plaintiff such sum as they may believe, from the evidence, the plaintiff’s property had been injured by reason of such wanton or malicious injury on the part of defendants.

“2. The jury are instructed that the woi’d ‘ wontonly’ as used in the petition and instructions, means recklessly and carelessly, and without due regard for the rights of plaintiff.”

And, at the request of defendants, gave the following :

"1. The jury are instructed, ’ that, unless they believe from the evidence that the defendants wantonly and maliciously damaged or destroyed furniture belonging to plaintiff, they will find for the defendants.

“2. The jury are instructed that defendants are not responsible in this, action for any damage which may have resulted to the plaintiff ’ s furniture in consequence of his having failed to use ordinary care to preserve the same from injury after he learned the fact that it had been set out of the house.

“ 3. The jury are instructed that, in estimating the damages in this case, they will not take into consideration anything except the actual damages that resulted to the furniture of plaintiff from the acts of defendants, or either of them, and they will not take into consideration any damage done to a buggy top.

“4. The court instructs the jury that in arriving at their verdict they will disregard all statements which the witnesses say were made to them about other persons than the defendants, unless such statements of other persons were made in the presence and hearing of one or both of the defendants.”

There is no substantial reason presented why this judgment should be disturbed. The first point suggested by defendant’s counsel is, that the court erred in excluding the sheriff ’ s deed to defendant Owen, conveying the real estate (on which plaintiff’s furniture was stored). In this the court was clearly correct as the title to the house where the plaintiff resided had nothing whatever to do with this controversy. Besides no exception was saved to the court’s ruling on this matter.

The second errror charged is that the court wrongfully gave plaintiff’s first instruction, “because,” it is said, “the same is not supported by any evidence in the record tending to prove either wantonness or maliciousness on the part of defendants,” etc. In answer to this assignment of error, as well as to the error denominated number 3, it is sufficient to say, that in our opinion ample evidence appears to justify the charge. Indeed, in the light of plaintiff’s testimony, it was a most flagrant trespass, and' attended with such conduct by defendants as to warrant the charge of wantonness or maliciousness.

Defendants cannot justly 'complain of the court’s error (if error it was) in not defining the terms wantonness or maliciousness, since defendants used the identical words in their own instructions offered without explanation, and, hence, they are in no condition to complain of errors they invited.

There is nothing further in this case worthy of serious consideration. . Judgment affirmed.

All concur.