Hall v. Biddle

WHITING, P. J. This action was brought to recover damages which the plaintiffs claimed they had suffered by defendant’s driving and chasing horses belonging to -plaintiffs; it being claimed that the horses were driven in a cruel and wanton manner. Verdict and judgment were for plaintiffs, and defendant has appealed from such judgment, and from the order denying a new trial. There are several assignments of error, but only two questions seem 'to be raised by appellant’s brief: The sufficiency of the allegations of the complaint to charge damages to the horses, and the admission of certain evidence offered to show such damages. The complaint was evidently drawn upon the theory that plaintiffs could recover for injury to their feelings, actual damages to the horses, and, possibly, exemplary damages, based upon the damages to the horses. No evidence was offered to support a recovery for injury to the feelings of plaintiffs, and neither that nor the question of exemplary damages was submitted to the jury. There was no demurrer to the complaint, and no motion to make same.more specific; but yet, upon the trial, the defendant objected to certain evidence on the ground that no claim for actual damages to the horses was made in the complaint. The third paragraph of the complaint reads as follows: “That the defendant unlawfully, maliciously, and wantonly, and with intent to insult and oppress these plaintiffs, by force of arms forcibly took the 70 head of horses from the possession and control of the plaintiffs, and maliciously and wantonly, and with intent to publicly insult and oppress plaintiffs, drove and chased said horses for a number of miles -in an unnecessarily cruel and wanton manner, whereby •they were greatly damaged and injured, and these plaintiffs were [181] publicly outraged and oppressed, to the damage of the plaintiffs in the sum of $1,500, no part of which has been paid.” Leaving out the words referring solely to alleged injury to feelings, and we find left the allegation that the “defendant, unlawfully, maliciously, and wontonly, by force of arms forcibly took the 70 head of horses from the possession and control of the plaintiffs, and drove and chased said horses for a number of miles in an un necessarily cruel and wanton manner, whereby they were greatly damaged and injured, to the damage of the plaintiffs in the sum of $1,500,” etc. Such allegations were certainly ample to warrant admission of proof of matters therein alleged. The evidence shows that the plaintiffs had for years been in the business of raising horses upon the range, and selling such horses. No question could possibly be raised as to their competency to testify to value of horses, both when injured and uninjured. The plaintiffs were witnesses, and each one was asked the amount said horses were damaged. Such question was objected to upon the ground that it called for a conclusion, and not for a statement of the facts. In each case the evidence had already shown the manner in which the witness claimed the horses had been misused, and the first witness, in answering said question, not only stated the amount of damage per head, but stated the condition of the horses after such claimed misuse. The objections were overruled, and such rulings were clearly correct, unless, as claimed by the defense, it was not competent for the plaintiffs to give their opinions regarding the amount of damages they had sustained. Appellant cites 17 Cyc. 49, and the case of Tenney v. Rapid City, 17 S. D. 283, 96 N. W. 96. A mere glance at these authorities is sufficient to show that they have no application to this case, which comes under the class of cases referred to in 17 Cyc. 53, in which the opinion is received) being those cases wherein the witness would be qualified to give the value of the property both before and after the damage, and, as said in Cyc., “an estimate of damage is merely a short way of stating a difference in the value of property.” Laird v. Snyder, 59 Mich. 404, 26 N. W. 654; Coyle v. Baum, 3 Okl. 695, 41 Pac. 389; Missouri, [182] K. & T. Ry. Co. v. Hall, 32 C. C. A. 146, 87 Fed. 170. The proposition of law herein involved was recognized by this court in the case of Schuler v. Board of Supervisors, 12 S. D. 460, 81 N. W. 890. The judgment and order appealed from are affirmed.