This was an action for damages caused by
the seizure and sale of a stock of goods claimed by plaintiff, the facts of which are fully stated in the opinion of the court by Mr. Justice Battle. It is insisted on the motion to rehear that the court erred in giving to the jury the following instruction in reference to the measure of damages: “If you ñnd for
the plaintiff, you will assess the actual damages at the value of the property at the time of the seizure, with six per cent, interest thereon from the seizure up to this date, and such further sum as you will find from the proof the plaintiff has sustained from being deprived of his business.”
As a general rule, the measure of damages in an action of this kind is the value of the property at the time and place of the conversion, with interest thereon from that time. Kelly v. McDonald, 39 Ark. 387; Jones v. Horn, 51 ib. 19. There is nothing shown here to take this case out of the general rule. The goods taken and converted were such as are generally kept for sale by druggists, and there is nothing in the evidence to show that they could not have been readily replaced by the purchase of other like goods in the market, thus preventing any stoppage of business. Under the facts of this case, plaintiffs cannot, in addition to the value of the goods and interest, recover for use of goods as for loss of profits. Anderson v. Sloane, 72 Wis. 566.
It is said on part of appellees that the complaint alleged that the seizure and sale of the stock of goods destroyed plaintiff’s business; that this allegation, not being denied, must be taken as true. If we concede this statement to be correct, still, before any recovery could be had for loss of business, the amount of such special damages should be alleged and shown by evidence with some degree of certainty. We have nothing of the kind here. The value of the business said to be destroyed is not alleged, nor is there in the transcript any competent evidence of such value. There is in the complaint only the general allegation that the business was established and profitable, and that it was destroyed by the levy and the sale of the stock of goods. On the trial, the plaintiff was allowed, over the objection of defendants, to state generally that he was doing a good business, which was improving; that others were doing well in the drug business; and that he did not see why he could not do well also. This evidence, even if there were no other objection to it, was too vague and indefinite, and should have been excluded. But the circuit judge refused to exclude it, and, by the instruction above noticed, told the jury that, in addition to the value of his goods and interest, they should allow the plaintiff such further sums as the proof showed that he had sustained by being deprived of his business. Even if it were proper to allow damages for stoppage of business in this case, this instruction would still be erroneous; for it does not limit the damage for such loss to the time necessarily required for replacing the goods seized by defendants, but leaves the jury free to assess damages for loss of profits for any length of time they might choose to fix upon, and was, when taken in connection with the evidence above noticed, calculated to mislead the jury, to the prejudice of appellant. The evidence and instruction as to loss of business were both, we think, improper; for, as before stated, in the absence of any allegation or proof as to special damages, and where no grounds for exemplary damages are shown, the recovery in cases of this kind is limited to the value of the goods converted, with interest from the time of conversion. Kelly v. McDonald, 39 Ark. 387; Jones v. Horn, 51 ib. 19; Ingram v. Rankin, 47 Wis. 406; Anderson v. Sloane, 72 Wis. 566.
This point was not overlooked in the former consideration of the case,- but at that time we were of the opinion, taking into consideration the amount of the verdict, the remittitur required by the circuit judge, and all the evidence, that no prejudice resulted from the instruction noticed. The question was not discussed in the former opinion, for the reason that a difference among the judges in regard to the decision of the case arose on other points, which were discussed at length, but, there being at that time no disagreement on .this point, it was passed without discussion. I concurred in the former opinion delivered in this ease, and find no reason to change on any of the questions discussed therein, but a further consideration of the question has convinced me that the instruction above noticed was not only erroneous but prejudicial. As I am not able to say what effect it had upon the verdict of the jury, I think it safer to reverse and remand for a new trial.
For the reasons above stated, the judgment is reversed, and cause remanded for a new trial.
Wood, J., concurs, and Bunn, C. J., concurs also, but for reasons stated by him in separate opinion.