No. 1,535 | 8th Cir. | Dec 2, 1901
after stating the case as above, delivered the opinion of the court.
It is charged in the complaint that the sheriff well knew that the goods which he seized, under authority of the execution against Horkey, did not belong to Horkey, but were the goods and property of the "plaintiff, and also that the sheriff “willfully, maliciously, and with the intent and design of * * * destroying and injuring her business credit and standing, and preventing her from carrying on and continuing her business,” made the levy in question, and did thereby in fact interfere with the conduct of her business, and injure lier business credit and standing. It is further charged in the complaint that the sheriff well knew that the seizure of her goods by him under execution as the property of another would “greatly impair her business credit and standing.” This action is analogous to one for the malicious abuse of civil process, but in reality is an action on the case for a malicious trespass, committed under color of office. No question was raised below as to the character of the action, or the sufficiency of the complaint to state a cause of action, but defendants chiefly relied upon the proposition that the judgment and satisfaction thereof, in the former replevin suit, was an effectual bar to this action. Before considering this main defense, we will dispose of the two other assignments of error.
The first is that there was no evidence to support the verdict. This contention is a new one, and for the first time made in this' court. No motion for an instructed verdict, either at the close of plaintiff’s case or at the close of the whole evidence, -was made; but, without objection on the part of defendants, the court was permitted to charge the jury on the assumption that there was sufficient evidence to justify a submission of the case to them. Such being the facts, defendants cannot now for the first time he heard to raise the question of the sufficiency of the evidence to support the verdict. Village of Alexandria v. Stabler, 1 C.C.A. 616" court="8th Cir." date_filed="1892-05-16" href="https://app.midpage.ai/document/village-of-alexandria-v-stabler-8844069?utm_source=webapp" opinion_id="8844069">1 C. C. A. 616, 50 Fed. 689; Insurance Co. v. Unsell, 144 U.S. 439" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/hartford-life-annuity-insurance-v-unsell-93330?utm_source=webapp" opinion_id="93330">144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/hartford-life-annuity-insurance-v-unsell-93330?utm_source=webapp" opinion_id="93330">36 L. Ed. 496, and cases cited.
The next assignment of error challenges the correctness of the following two portions of the charge of the court to the jury:
(1) “If, on the other hand, you find that the sheriff, Mr. Crockett, was not actuated simply hy an honest desire to perform what he regarded and believed to be his duty under the circumstances of the case as an officer,*732 But was actuated .by a willful and- malicious motive or purpose to injure tbe' plaintiff, then the plaintiff would be' entitled to recover of the defendants in- this case the damages which the testimony shows plaintiff has sustained. * - * ⅞»
■ (2) “If, on the other hand, you find his action was willful and malicious, theto ascertain what were the damages shown by the evidence which the-plaintiff has-sustained.”
The court in the forepart of its charge had clearly and distinctly called the jury’s attention to the particular allegations of the complaint set forth in some dptail at the beginning of this opinion, and immediately preceding one portion of the charge ex'cepted to had told the jury to first determine from the evidence whether the sheriff acted willfully and maliciously as alleged in the petition, and that if he did so • act—that is, with- the intent and design of. destroying and injuring plaintiff’s business credit and standing—the plaintiff could recover, but if he did not so act the verdict should be for the defendants. The criticism of the portions of the charge excepted to is that in them the court assumed there was evidence showing that plaintiff had sustained some damage. In our opinion, this criticism is without merit. The court pointedly referred the jury to the evidence in- t'he case, and in effect told them, if they found for the plaintiff, to award her such damages as the evidence shows she had sustained,, if any. In another portion of the charge the court narrowly confined attention to the particular damages alleged to have been sustained by plaintiff. We fail to see how the jury, in the light of the whole charge, could have been misled by the portions complained of.
'The next and only remaining question for our consideration is whether the trial court erred in holding that the judgment in the re-plevin suit was not a bar to recovery in the present action. It is conceded that, if the damages recoverable in the replevin suit might have included the damages sued for in this action, the judgment in that suit would have operated as an effectual estoppel against recov-fery-in this action. Cromwell v. Sac Co., 94 U.S. 351" court="SCOTUS" date_filed="1877-04-16" href="https://app.midpage.ai/document/cromwell-v-county-of-sac-89476?utm_source=webapp" opinion_id="89476">94 U. S. 351, 24 L. Ed. 195; Roberts v. Railroad Co., 158 U.S. 1" court="SCOTUS" date_filed="1895-04-22" href="https://app.midpage.ai/document/roberts-v-northern-pacific-railroad-94184?utm_source=webapp" opinion_id="94184">158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873" court="SCOTUS" date_filed="1895-04-22" href="https://app.midpage.ai/document/roberts-v-northern-pacific-railroad-94184?utm_source=webapp" opinion_id="94184">39 L. Ed. 873. Section 4701 of the Consolidated Statutes of Nebraska, relating to replevin, is as follows:
, “In all cases where the property has been delivered to the plaintiff, where - the jury shall find for the plaintiff on an issue joined, or on. inquiry of damages upon a judgment by default, they shall assess adequate damages to the plaintiff- for the illegal detention of the property, for which, with costs 'of suit, the court shall render judgment for plaintiff.”
It will.be recalled that plaintiff at the time of instituting her re-plevin suit secured an order for the delivery to her of the goods levied upon, and subsequently took possession thereof and held the same pending the trial of that suit. She thereby brought herself within the purview of section 4701, Consol. St., and had her day in court, and full opportunity to recover “adequate damages * * * for tíre illegal detention of the property.” What are such .damages? T,h.£ language of the act itself seems clear and unambiguous, namely, for the illegal detention, and for nothing else. - The case of Dietrich v. Railroad Co., 13 Neb. 43" court="Neb." date_filed="1882-07-15" href="https://app.midpage.ai/document/dietrichs-v-lincoln--northwestern-r-r-6643581?utm_source=webapp" opinion_id="6643581">13 Neb. 43, 13 N. W. 13, was an action in-replevin to-
“Section 191a [section 4700, Consol. St. Neb.] provides that the judgment mentioned in the prior section shall he for the return of the property, or,' if return cannot he had, for the value or value of possession, ‘and for damages for withholding the property.’ In other words, the damages allowed are for the withholding or detention of the property, not all damages generally which may he connected with the subject in dispute, or grow out of the relation of the several parties to each other or to the property. They must arise from and be incident to the contest over possession of the property, and, unless they do so arise, are not recoverable merely because connected with the transaction by reason or virtue of which the plaintiffs alleged right of taking possession accrued. * * ⅜ The replevin action is primarily to adjudicate the possession of the property. Other rights and claims must be determined, as a general rule, in other appropriate proceedings, even though closely connected with the controversy out of which the contest over possession arises.”
The court finally announces its conclusion as follows:
The “measure of damages for detention recoverable by defendant in re-plevin may be stated thus: He may recover, (1) if there is no special value attaching to use of the jjroperty, interest; (2) if the value of use of the property exceeds the interest, then such value, without regard to whether the property is returned, but in such case no interest; (3) if loss, deterioration, or depreciation occur while the property is withheld, then the amount of such loss, damage, or depreciation, to be conditioned, however, upon return of the property, the alternative judgment for the value being fixed as of the date of the taking. Moreover, the damages for detention must be such as grow out of the detention, and are connected with or incident to the contest over possession.”
The last-mentioned case is decided by the court of last resort of Nebraska, and, in our opinion, so construes its local laws as, under the familiar rule, should control our interpretation of it.'
Under the New York statutes, in actions of replevin the jury is required to assess the value of the property and damages for its detention. In the case of Allen v. Fox, 51 N.Y. 562" court="NY" date_filed="1873-03-05" href="https://app.midpage.ai/document/allen-v--fox-3619080?utm_source=webapp" opinion_id="3619080">51 N. Y. 562, 10 Am. Rep. 641, the supreme court of that state, in discussing the measure of damages for the detention of property in a replevin suit, says:
“In many cases interest on the value from the time of the wrongful taking would be a proper measure. It would be generally in all cases where the property detained was merchandise kept for sale, grain, and all other articles of property useful only for sale or consumption. In such eases, if the owner recover the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity, unless the property has depreciated in value, in which case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will .furnish the amount of the damage. This damage, together with the property or its value at the timé of the trial, will give the owner as complete an indemnity as the law is generally able to give any person seeking redress for a wrong. But the same measure of damages would not generally furnish the owner an indemnity in case the property claimed had a value for use, or, in other words, a usable value, such as horses, cows, carriages, and boats. In such case the direct damage which the owner suffers is the loss of the use, and the value of the use should be the measure of damage.”
“The issue in this case, so far as the damages for detention is eoncerne,d, is substantially the same as in tlie former. The same elements of damages are to be considered, and substantially the same proof would be required to sustain the issue in either case.”
If the case now before us was one for the recovery of any kind of damages for the unlawful detention of* the property only, it would present the same case as was before the Kansas court, but, as already seen, such is not the fact.
■ As a result of a careful examination of many cases, not only those to which our attention is called by defendants’ counsel, but many others to which we have given critical attention, we think the rule may be safely stated as follows: That the only damages which can be recovered by a plaintiff in an action of replevin under the statutes of Nebraska as construed by the supreme court of that state, where the property has been delivered to the plaintiff, are interest on the value of the property during the time plaintiff is deprived of its possession, the injury or damage done thereto bjr the officer in taking the same and while in possession thereof, and, in some cases, the usable value or the value of the use of the property while so detained. This we believe to be the New York doctrine, and is substantially the doctrine of the state of Nebraska, as we understand the decisions.
Accordingly it follows that the collateral or consequential damages occasioned by a seizure of property by the officer against whom the replevin suit is brought, such as injury to the business reputation, credit, and standing of the plaintiff occasioned by the malicious conduct of the officer making the seizure, coupled with the express purpose and intention of so injuring the plaintiff, are not within the purview of the statutory damages flowing from the unlawful detention of property, within the meaning of replevin acts. They are totally different from them, in that they do not flow proximately from the act of detention merely, but are special and consequential damages, arising out of facts specially pleaded in this case showing an intention to inflict them.
For like reasons, also, there is, in our opinion, no merit in the theory of estoppel, by splitting the cause of action, as argued by defendants’ counsel. If the damages resulting to plaintiff’s business standing and credit, as a consequence of the malicious conduct of the sheriff, could not have been recovered in the replevin suit, surely the plaintiff should not be punished for not attempting to do so.
Defendants’ counsel further contend that.plaintiff is estopped from prosecuting the present action by the doctrine of election of remedies. A statement of the principles underlying this doctrine, in our opinion, demonstrates its inapplicability to the present case. “Where there are two existing and substantially inconsistent remedies, the adoption and pursuit of one of them excludes from the party the benefit of the other.” Crossman v. Rubber Co., 127 N.Y. 34" court="NY" date_filed="1891-04-21" href="https://app.midpage.ai/document/crossman-v-universal-rubber-co-3599609?utm_source=webapp" opinion_id="3599609">127 N. Y. 34, 27 N. E. 400, 13 L. R. A. 91, and cases cited. The present action for malicious trespass in seizing plaintiff’s goods is not inconsistent with the replevin suit. Although these two actions “differ in form, one does not allege what the, other denies. * * ⅜ While they are consistent they are not identical, and recovery in one does not constitute a bar to a recovery in the other.” Bowen v. Mandeville, 95 N.Y. 237" court="NY" date_filed="1884-03-04" href="https://app.midpage.ai/document/bowen-v--mandeville-3598513?utm_source=webapp" opinion_id="3598513">95 N. Y. 237. These two actions are not like replevin and trover, in one of which plaintiff would affirm his ownership of and title to-the property seized, in the other of which he would disaffirm ■ his ownership and title and sue for the conversion. These two-would present a clear case of inconsistent remedies, the election to resort to one of which would preclude reso.rt to the other. The actions for replevin of goods, and. malicious trespass on the part of an officer in levying upon the same, each assert plaintiff’s title to the property seized. A replevin action has for its immediate object the restoration to the plaintiff of his goods, and affords the incidental remedy of recovering. .the direct and limited damages occasioned by the mere detention thereof. The action for malicious trespass has for its object, not the restoration of the goods, and not the direct damages!occasioned by
After giving attentive consideration to all the arguments of learned counsel, we are unable to discover any reversible error in the proceedings of the trial court. Its judgment must therefore be affirmed.