Clark v. Gay

Lewis, J. The complaint in this case is that the court below erred in sustaining a general demurrer to the plaintiff’s petition (the substance of which will be found in the official report), on the ground that it set forth no cause of action. 1. After a careful study of the petition, the only definite purpose that we can gather from it is to recover the value of the plaintiff’s house on account of the defendant’s unlawfully pursuing a servant of the plaintiff and killing him in the house. There is no allegation of actual physical damage done to the house, nor is there anything to show that it was not in as good condition after the homicide as before. We can not imagine, therefore, how the value of the house can be made the measure of the damage alleged to have been caused by the wrongful conduct of the defendant. 2. The petition in this case is too loose and indefinite to support a recovery of any kind. We do not mean to say that the conduct charged against the defendant could not be made the basis of a valid civil action against him in favor of the plaintiff. An action might have been sustained for the unlawful killing of the plaintiff’s servant, to recover damages for the loss of the services of the servant. [779] There might also have been a suit for trespass and invasion of the plaintiff’s home, or for injury to his peace and happiness, resulting from the outrage committed in the presence of his family. This suit, however, embraces none of these elements. Taken as a whole, the petition excludes the idea that the plaintiff is seeking damages of any kind save those mentioned in the preceding division of this opinion; and it is too indefinite to be sustainable on any theory. Judgment affirmed. All concurring, except Colb, J., absent.