Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Palmer v. Kelly

Supreme Court of Arizona

December 18, 1939

L. J. PALMER and WILBUR C. GORDON, Appellants,
v.
PAT KELLY, Appellee

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr. A. L. Hammond of Prescott, Arizona, and Mr. W. E. Watkins of Los Angeles, California, Attorneys for Appellants.

Messrs. Patterson & Eastvold and Mr. Yale McFate, Attorneys for Appellee.

OPINION

[54 Ariz. 467] LOCKWOOD, J.

L. J. Palmer, hereinafter called plaintiff, brought an action in replevin against Pat Kelly, hereinafter called defendant, to recover possession of certain mining machinery. Wilbur C. Gordon intervened, claiming the property. The case came for trial before a jury, all parties being represented, and the jury returned a verdict in favor of defendant, fixing the value of the property at the sum of one thousand dollars and damages for wrongful seizure at five hundred dollars. The matter was brought before us on appeal, and in the case of Palmer v. Kelly, 52 Ariz. 98, 79 P.2d 344, we affirmed the judgment as to the value of the property, but reversed it as to the damages allowed and sent it back for a new trial on the issue of damages alone. When the case came up for retrial, plaintiff objected to any testimony being introduced on the issue of damages, assigning the following reasons:

[54 Ariz. 468] "We object to the introduction of any evidence in this cause for the reason that the complaint fails to state any cause of action; that we are not informed by the complaint of any particulars or facts that would warrant a recovery by the defendant. That the complaint does not inform us as to the nature of the defendant's claim, and we are, therefore, unable to make any defense to whatever claims defendant may urge at this time."

The objection was overruled, and defendant proceeded to introduce evidence upon the issue of damages. Thereafter counsel for plaintiff moved for a directed verdict in favor of plaintiff on the cross-complaint of defendant, which motion was denied, and plaintiff took no further part in the proceedings. A verdict for damages in the amount of five hundred dollars was returned, and judgment being rendered thereon, the case was brought before us on appeal.

The allegation of the cross-complaint in regard to damages reads as follows:

"That by virtue of the wrongful seizure of said personal property, this defendant and cross complainant has been damaged in the sum of five hundred dollars ($500)."

In this a sufficient allegation of damages to authorize the introduction of evidence by the claimant and to sustain a verdict for damages in the amount shown by the evidence? Damages are either general or special. General damages may be defined as follows:

"Those which necessarily

Page 210

and by implication of law result from the act or default complained of. They are such as the jury may give when the judge cannot point out any measure by which they are to be ascertained, except the opinion and judgment of a reasonable man. They are such as by competent evidence are directly traceable to a failure to discharge a contract, [54 Ariz. 469] obligation or duty imposed by law." 1 Bouv. Law Dict., Rawle's Third Revision, page 750.

We think the allegation is sufficient to support proof of general, but not of special, damages. 17 C.J., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.