Charles Shiverick & Co. v. R. J. Gunning Co. , 59 Neb. 73 ( 1899 )

Norval, J.

This cause is on rehearing. The former opinion is reported in 58 Nebr., 29, which contains a sufficient statement of the facts as well as the questions involved. Relative to the measure of damages the trial court charged the jury: “The plaintiff is entitled to recover as its measure of damages in this action such amount as will compensate it for the loss it sustained in consequence of defendants’ wrongful act in erasing and marking out the sign in question, the costs of replacing said sign, including railroad fare of workmen from Chicago or elsewhere, if sent specially for that purpose, together with hotel bills to plaintiff. The actual cost of repairing, replacing and maintaining said sign under its contract to the Durham tobacco people is plaintiff’s full measure of dámages, and this you will ascertain and allow in such sums as from a preponderance of the evidence you find to be such cost; but you cannot allow exemplary damages— that is, you must not assess damages for the purpose of punishing the defendant.” This instruction, although vigorously assailed upon the former hearing by counsel for defendant below, was approved by this court, and the giving thereof sustained. After an investigation of the subject anew we are convinced that we committed a grave error in so holding. While hotel bills and railroad fare may be proper elements of damages under certain contingencies or state of facts, they were improperly allowed or directed to be taken into consideration, because it was not shown upon the trial that it was necessary to send workmen from Chicago to replace the sign in dispute. While it was developed that no one living in Omaha was capable of restoring the sign, it was not established by any evidence that it was essential that painters should be sent from Chicago to do the work. It may be that sufficiently competent persons could have been obtained in Council Bluffs, Burlington or Des Moines to repair this sign. It was therefore error to direct the jury to allow plaintiff railroad transportation from Chicago or elsewhere. And this error was not waived by the defendant tendering an instruction upon the measure of damages, since the request tendered expressly stated evidence of railroad fare was not to be considered in the estimation of damages, unless, in replacing the sign, it was necessary to bring workmen from another city. There is not a particle of proof in the record to justify the giving of the instruction quoted above. For this error the judgment is reversed, and the cause remanded.

Reversed and remanded.