76 Neb. 102 | Neb. | 1906
Parker sued Habig for trespass alleged to have been committed by Habig’s stock upon bis cultivated lands. The allegations of the petition covered a period of three years, charging repeated acts of trespass during all of that time, and the paragraph of the petition relating to the damage claimed is in the following words: “That the hogs of said
We think that reversible error cannot be predicated on this ruling of the court, as, in our opinion, the petition contained hut one cause of action. The petition charges
Relating to the other assignments of the motion, the law is well settled that it is unnecessary in most actions where the demand is unliquidated and sounds wholly in damages, and where there' is but a single cause of action, to state specifically and in separate paragraphs the different elements or items which go to make up the sum total of damages. It is enough to claim so much in gross as damages for the wrong done. Shepherd v. Pratt, 16 Kan. 209; 2 Sutherland, Damages (3d ed.), sec. 424. While it is usual, and perhaps the better practice, to grant a motion requiring the plaintiff to itemize the damages claimed for injury to different articles of personal property, there was no reversible error in denying the motion in this case, especially as the case had been first tried in the county court, and defendant was fully. informed upon that trial of the plaintiff’s claim. The evidence offered by the plaintiff tended to show that the defendant’s hogs, to the number of about 30 or 40, trespassed upon plaintiff’s cultivated lands on numerous occasions during the years 1900, 1901 and 1902; that they ate and destroyed'certain'corn
The court instructed the jury, at the request of plaintiff, “that the measure of the plaintiff’s damages is the reasonable market value of the property destroyed at the time the same was destroyed by the defendant’s stock running at large.” It is urged that this instruction. is erroneous and prejudicial. It is disclosed, however, by the record that in instruction No. 2, given by the court at the defendant’s request, the same measure of damage was applied, the language being: “The measure of the plaintiff’s damages and his recovery therefor, in this case the property destroyed, would be the fair and reasonable market value' of such property at the time, and located at the place, in the same condition that said property was in at the time it was destroyed.” It will be observed at once by a comparison of the two instructions that both parties had the same theory as to the measure of damages, and that the court adopted the theory of the parties themselves. The rule is well established in this state that where parties have tried a case upon a certain theory, and procured the trial court to adopt that theory, they cannot be permitted to change their position in the appellate court on error.
The questions already discussed are the principal and most important ones presented. There are 53 assignments of error in the petition. ' The case, however, is not of sufficient importance to justify extending this opinion by separate mention of each. We have examined the record with care, and conclude that the case was fairly tried upon the theory adopted by the parties, and find no prejudicial error.
It is recommended, therefore, that the judgment of the district court be affirmed.
AFFIRMED.