139 P. 586 | Mont. | 1914
delivered the opinion of the court.
This action was brought to recover of the defendants Casey and Frank A. Shoemaker, damages for the conversion of certain personal property of plaintiff, consisting of a set of Werner’s edition of the Encyclopedia Britannica and miscellaneous books, sheet music, and articles which may be classed as domestic utensils. The prayer was for a judgment for $500 compensatory and $1,000 punitive damages. The defendants filed separate answers in which they denied generally all the allegations of the complaint. They also alleged affirmatively certain matters as special defenses by way of justification or in abatement, upon which the plaintiff joined issue by reply. At the trial the issues in this behalf were eliminated from the case, the defendants relying exclusively upon the issues tendered by the denials. The jury returned a verdict in favor of the plaintiff for $1,050, of which, as is disclosed by a special finding returned with the
The first contention is that the complaint does not state a cause of action for a conversion. The sufficiency of it was questioned
Counsel contend also that the court had no power to permit or direct an amendment, at that stage of the trial. Wherein the defendants suffered prejudice by reason of it, however, is not pointed out; nor is prejudice disclosed by the record. The
It is further contended that the evidence is wholly insufficient to justify the verdict in any amount, as against Casey, or, in any event, that it does not justify a finding of punitive damages. The facts out of which this controversy grew are briefly the following: In August, 1910, the plaintiff and her husband were' occupying a house .in Butte which they had rented fully furnished. The husband, having closed up his business, went to Great Falls to seek employment, expecting the plaintiff to follow him. Before leaving he packed into a barrel and three boxes the glassware belonging to the plaintiff, and other similar articles usually found in a household, together with a set of the Encyclopedia Britannica, and a number of miscellaneous books, sheet music, etc. These latter articles were packed in one of the boxes. The barrel and boxes were marked plainly as the property of the plaintiff and stored at the warehouse of one Doráis, who kept a grocery store in Butte. Doráis kept the packages gratuitously and merely as an accommodation. Presently the
It will be noted that direct personal responsibility for the bringing of the two boxes to the company’s warehouse is not fixed upon anyone. Casey’s direction to the drayman was countermanded by Shoemaker and was not obeyed. Since a part of the property in them was thereafter found in Shoemaker’s possession, it is a fair inference that he was' responsible. Casey’s only connection with the matter was his direction to the helper to store the boxes in the warehouse. The possession thus
That the verdict was excessive because given under the influence of passion and prejudice of the jury, however, is clear. The amount to be awarded in this class of cases is lodged in the discretion of the jury; but this discretion is not unlimited or to be exercised arbitrarily. It will not do to say that the jury are free to make the measure of punishment whatever they choose, without any just or reasonable relation to the wrong done. No definite rule can be declared as to when the court should interfere and when it should not; yet since a new trial may be ordered when it appears that the jury have acted under the influence of passion and prejudice (Rev. Codes, sec.
In requiring the plaintiff to remit what it deemed the excess, the trial court evidently was of the opinion that the award of
Other errors are assigned and discussed by counsel. We do not find prejudicial error in any of them. The judgment and order are reversed and the cause is remanded for a new trial.
Reversed md remanded.