Macy v. Carter, 67 Mo. App. 323

Macy v. Carter

67 Mo. App. 323 | Mo. Ct. App. | 1896

Gill, J.

This is an action of trespass, wherein it was alleged by the petition that on April 5,1895, plain*325tiffs owned and were in the possession of certain farm lands in Grundy county, which were inclosed with good and sufficient rail and post and wire fencing; and “that on said fifth day of April, 1895, the defendants, without leave and wrongfully entered upon said estate and voluntarily threw down a portion of said rail and post and wire fence upon and inclosing said real estate, and left the same down; by reason of which unlawful acts of the defendants, plaintiffs say they are injured and damaged in the sum of three hundred dollars.”

The substance of the answer was, that defendant Carter — who was road overseer — together with the other defendants, entered upon a strip of the land thirty-five feet wide and half a mile long, and took down the fence so as to open up a public road ordered by the township commissioners, it being alleged that G-rundy county had adopted township organization. A reply was filed denying the new matter set up in the answer.

At the trial before a jury a verdict for plaintiffs in the sum of $100 was returned, which, under the statute (section 8676), was doubled and judgment rendered for $200, from which defendants appealed.

Defendants have just cause to complain of the court’s action in permitting plaintiffs to introduce evidence to prove that by reason of defendants’ entering upon the thirty-five foot strip of land and moving the fence therefrom, the plaintiffs were deprived of the use of certain pasture land, about eighty acres, which belonged to the farm.

This, clearly, was special damages, and. should have been specially pleaded in the petition. Bliss on Code Pl. [3 Ed.], sec. 2975; 1 McQuil. Pl. & Pr., sec. 304, and cases cited; 1 Sutherland on Damages [2 Ed.], secs. 418, 419; Krueger v. LeBlanc, 62 Mich. 70.

In the foregoing statement we quote every word of the petition relating to the damages, and it will be seen *326that it only alleges general damages. If it was desired to call upon defendants to make good such incidental or special damages as that claimed at the trial, then the petition should have set it out with some particularity, so that the defendants might have been advised and been prepared to meet such charges.

From reading the record it would seem that this special damage was very largely the basis of the verdict. The error, then, of the court, was manifestly prejudicial to the defense.

The judgment must be reversed-and cause remanded.

All concur.