Burkeholder v. Rudrow

19 Mo. App. 60, 1885 Mo. App. LEXIS 177

Opinion

Ellison, J.

The main question presented in this case as shown by the instructions given and refused is as to the measure of damages. The question is fully settled against appellant in the cases of Pope v. Jenkins (30 Mo. 528); Chapman v. Kerr (80 Mo. 158); Mix v. Kepner (81 Mo. 93). Defendants evidently asked their instructions under the cases of Woodburn v. Meyer (39 Mo. 222), and Miller v. Whitson (40 Mo. 97). Each of these eases are overruled by that of Chapman et al. v. Kerr, supra, where Judge Henry especially approves of Pope v. Jenkins and disapproves of Woodburn v. Meyer and Miller v. Whitson.

The petition is deemed sufficient. While special damage to the property must be specially pleaded, yet a “general claim of damages at the conclusion of the declaration will be sufficient to entitle the party to all such damages as are the natural and immediate consequence of the defendant’s acts, of which the declaration complains.” Wells on Replevin, sects. 682, 671, 571; Christal v. Craig, 80 Mo. 375.

The loss of the use of the property was “the natural and immediate consequence of the defendant’s acts,” and plaintiff’s instruction on this phase of the case was proper.

The judgment below having been entered for forty dollars more than' was asked in the petition, and plaintiff having filed a remittitur in this court for that sum, the judgment less that amount is in all respects affirmed, but the costs of this appeal are hereby adjudged against the plaintiff. Exchange National Bank v. Allen, 68 Mo. 474, and cases cited; Miller v. Harden et al., 64 Mo. 545; Clark v. Bullock, 65 Mo. 535.

All concur.