Hahn v. Mackay

Aug 13, 1912

Reporters:: , ,
Before:: Burnett

Lead Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. As a preliminary matter, it is necessary to dispose of the contention of the plaintiff that, the defendant having failed to have the exhibits in evidence properly identified and made part of the bill of exceptions, those documents are not before the court, and the bill itself should be stricken out. It is provided by Section 171, L. O. L., that “no particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it but no more.” There is before us a paper setting out certain instructions asked for by the defendant and refused, and certain directions to the jury, given by the court, to which exception was taken by the defendant. The entire charge of the court is included therein. In relation to the instructions given, and to which the defendant objected, the paper referred to contains this statement:

“There was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions, and also other evidence tending to the minimization of such damages.”

Similar statements as to the existence of evidence apropos of the questions involved in. the requested charge are made in other parts of the paper. Attached to the bill of exceptions is a transcript of 236 pages of stenographer’s report of the oral testimony, together with interpellations of counsel, the remarks of the court, and objections to the introduction or exclusion of testimony, and the like. The bill of exceptions proper closes with a certificate of this purport:

“The evidence hereto attached and the exhibits hereby *106presented are hereby made a part hereof, and was and is all of the evidence presented on either side in the above-entitled cause and court. Wherefore, due notice of the bill of exceptions having ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been given, and counsel having been given an opportunity to be heard, and the court being at this time fully advised in regard thereto and finding the same to be correct: Now, therefore, the foregoing statement, and the evidence and exhibits hereto attached and made a part hereof, is hereby settled and allowed as a full, true, and correct bill of exceptions, and is made a part of the record of this cause. Dated June 15, 1911.”

Signed by the presiding judge. No exhibits are in fact physically attached to the bill of exceptions, or to the transcript of the testimony. Sundry papers accompany the record to this court; but they are not identified as having been used in the trial in the court below. For the purposes of this case, however, we do not deem these exhibits to be an essential part of the bill of exceptions.

2. It seems to be the contention of counsel for plaintiff that since the amendment of Article VII of the Constitution, adopted in November, 1910 (Laws 1911, p. 7), it is incumbent upon one appealing to necessarily have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. In our judgment that constitutional amendment does not in any manner affect the provisions of the law, already quoted, concerning the structure of a bill of exceptions. As much as ever, it is necessary, if parties wish to present questions of law arising at the trial, they must bring them here in the form of a bill of exceptions, as provided by the statute above quoted. The language of the constitution is not mandatory, but only permissive. It does not by its terms make the whole testimony essential to a bill of exceptions, and, as before the adoption of the amendment, the court will not necessarily wade through a great mass of testimony searching, as for a needle in *107a haystack, for errors complained of. If parties desire to present such errors to the court, they must do it, as before, by a properly arranged bill of exceptions, setting out so much of the testimony only as is necessary to disclose the point of the objection. Exceptions to this rule are found in cases where the matter turns upon a motion for nonsuit, when, if that issue of law is to be raised, all the evidence for the plaintiff in chief must be attached to and made a part of the bill of exceptions. Another exception is where the contention arises upon a motion for a directed verdict at the close of all the testimony. To present this properly requires a reproduction of all the testimony in the case. Even then the whole testimony for the plaintiff on the motion for a nonsuit, or the entire testimony of the case on a motion for a directed verdict, will be considered only for those purposes, or for the quasi equitable retrial contemplated by the constitutional amendment already mentioned. If errors of law are to be considered in detail, they must be presented as above stated. This is a wholesome rule tending to lessen the expense and to lighten the labors of both court and counsel, condensing the issue, so that it may be brought within reasonable bounds. We hold, therefore, that there is enough in the bill of exceptions presented here to warrant us in considering the errors assigned on the refusal of requested instructions, as well as objections to the charge as given. Without reference to the transcript of testimony attached to the bill, there is enough stated in that document itself to illustrate the point in question in each case. The proper structure of a bill of exceptions is discussed ably by Mr. Justice Slater, in Keady v. United Railways Co., 57 Or. 325 (100 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Pac. 658: 108 Pac. 197). The precedents are there collated and reviewed, and the case is of binding authority to this day, notwithstanding the permissive language of the constitutional amendment alluded to, allowing the *108testimony and other matters to be appended to the bill of exceptions.

3. The essence of the complaint is that the landlord, before the expiration of the term, entered upon the premises with force, oústed the plaintiff tenant, and razed the building, damaging plaintiff in the loss of his goods, $1,100, loss of profits in business, $5,333 — -all in a way authorizing the infliction of punitive damages, placed at $3,000. There is evidence in the case about the building inspector of the city insisting on the unsafe condition of the house in question, and that defendant should destroy it. There is’ also testimony to the effect that, thus urged by that officer, the defendant opened negotiations with the plaintiff, through the agent of the brewery company, looking to a surrender of possession by the plaintiff, and offering to secure another building near that part of the city in which plaintiff could continue his business, but that plaintiff refused to accept the other building or to vacate the premises. As the bill recites in brief, there was such evidence as the court referred to specifically in the instructions, and also other evidence tending to the minimization of such damages. Among others, the court gave the jury these instructions:

“During the progress of the trial, I admitted testimony to show that the loss to the plaintiff might have been minimized by his taking a saloon in another part of the city. Since that time, I have been convinced that I was in error, and I now tell you to put that out of the case, and if you come to that part of the case you will not consider the minimizing of damages at all. It is not properly in the case. I thought it was proper when I admitted that testimony, because if he could have gone elsewhere and minimized his damages it would not have accrued to his damage.”

The exception of the defendant having been allowed to this charge, he now complains of it as error. It is a general rule that if a party who suffers by the breach *109of a contract can minimize his damages at reasonable expense and care he is bound to do so, and cannot recover for any damage which could have been obviated by the observance of that rule. The plaintiff says that his liquor, beer, and such other goods as are used in the retail liquor business were in the premises leased, and as the result of the malicious’ and wrongful acts of the defendant herein are a total loss to the plaintiff. How they were damaged by the demolition of the building is not stated. Bu-t, conceding that they were set out on the street, the plaintiff would not be authorized to willfully and negligently leave them ‘there to be destroyed, without a reasonable effort to preserve them by storing them in some other building, or by some other reasonably appropriate method. The rule imposing upon the plaintiff the duty of mitigating his own damages, so far as he reasonably can under the circumstances, would certainly apply to the element of damages named in the complaint, whereby, as he alleges, he lost the liquor mentioned, and as we think, to the damage for the loss of the use of the premises as well.

Plaintiff cites many cases where a purchaser under an executory contract for the sale of personal property has refused to take the property when offered at the agreed price, and which hold that, inasmuch as the seller has the right to dispose of as many goods as he can to as many people as he can, and is entitled to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the benefit of his contract with the defendant, with the result that he can recover the difference between the contract price and the cost of production, the rule under discussion does not apply. Those precedents could be applied to this case if the defendant had contracted to purchase from the plaintiff so many barrels of beer at such a price, and had declined to receive or to pay for them when tendered. It would be no answer in such a case to say that the plaintiff might have hunted other customers for his beer; but that is not this case. In the most favorable aspect *110for the plaintiff, the defendant has deprived him of the benefit of the lease by demolishing the building. If by reasonable efforts and at reasonable expense he .could get another building equally as good in which to continue his business, it was his duty to do so and thus minimize, if possible, the damages accruing to him. Hodges v. Fries, 34 Fla. 63 (15 South. 682); Dobbins v. Duquid, 65 Ill.. 464; Adair v. Bogle, 20 Iowa 238; Huntington v. Parsons, 62 W. Va. 26 (57 S. E. 253: 9 L. R. A. [N. S.] 1130: 125 Am. St. Rep. 954); Moses v. Autuono, 56 Fla. 499 (47 South. 925: 20 L. R. A. [N. S.] 350); Poutra v. Martin (Tex. Civ. App.), 135 S. W. 725; Poposkey v. Munkwitz, 68 Wis. 322 (32 N. W. 35: 60 Am. Rep. 858); Diamond Roller Mills v. Moody, 63 Or. 90 (125 Pac. 284). It was error to withdraw from the jury the consideration of testimony to the effect that the plaintiff might have minimized his loss by taking the building offered to him, instead of the one from which he was evicted.

4. The bill of exceptions states, also, that the court instructed the jury as follows:

“Whether or not there has been in this case shown such a state of facts as will entitle the plaintiff to recover punitive or exemplary damages is a question entirely for your determination. You will look the testimony over with care; and if there is any evidence in this case that justifies you in giving it, why, you give it, and in the giving of it you are only to be governed by wise and sound discretion.”

The bill recites that the defendant excepted to this instruction, and the exception was allowed. Exemplary damages are allowed in proper cases to punish the defendant for the element of wantonness or maliciousness in inflicting the injuries of which the plaintiff complains. There are many degrees of difference between one who, without any shadow of right or claim upon the property, should enter upon it and tear down the - building to the *111eviction of the tenant, and one who, acting in good faith under the supposed compulsion of the city officers, should enter upon the premises and do a like act. Whether the defendant belonged to either of these extremes, or was properly classified under any one of the intermediate degrees mentioned, was a question of fact for the jury. All the circumstances of the case to which allusion has been made were proper for the consideration of the jury in determining the amount of exemplary damages, if any, to be imposed. The quest for punitive damages was one of the issues of fact in the case, and, like all others, should have been decided according to the preponderance of the testimony. The court, however, told the jury that “if there is any evidence in the case that justifies you in giving such damages, why, you give it.” This was tantamount to saying to the jurors that they should disregard all the evidence of the defendant calculated to refute the charge of malice and wantbnness, justifying punitive damages, and consider only the testimony on behalf of the plaintiff.

5. There were other errors assigned, but not discussed in the brief of the defendant; hence they will not be noticed.

The judgment is reversed. Reversed.

Rehearing

Decided October 8, 1912.

On Petition for Rehearing.

(126 Pac. 991.)

Mr. Justice Burnett

delivered the opinion of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court.

6. In the former opinion in this case we held that the circuit court erred in giving to the jury the following instructions, to which, the bill of exceptions informs us, the defendant duly excepted:

“During the progress of the trial I admitted testimony to show that the loss to the plaintiff might have been .minimized by his taking a saloon in another part of the *112city. Since that time I have been convinced that I was in error, and I now tell you to put that out of the case, and, if you come to that part of the case, you will not consider the minimizing of damages at all. It is not properly in the case. I thought it was proper when I admitted that testimony, because, if he could have gone elsewhere and minimized his damage, it would not have accrued to his damage.”

In connection with that part of the charge the bill of exceptions recites that “there was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions,’ and also other evidence tending to the minimization of such damages.” For the first time, it is now argued by plaintiff’s petition for a rehearing that the opportunity, if any there was, which he had to procure other quarters for his business whereby he might have lessened his damage, constituted new matter which must be averred by defendant if he would urge it in mitigation of damages. Conceding this contention, and, for the purposes of this case, modifying the former opinion in that respect, and without intimating that the offer of another building would be admissible in evidence unless made at the time of or subsequent to the eviction, yet the instruction referred to erroneously goes too far, in that it directs the jury not to “consider the minimizing of damages at all.” That language was tantamount to taking from the jury the whole question of the amount of damages and directing them to find on that point according to the allegations of the complaint. The plaintiff alleged damages in certain amounts and these averments were traversed by the answer. It was possible, under the general issues thus formed, for the defendant to introduce testimony which might lessen the amount named by the plaintiff, and the circuit court has informed us that there was such evidence. Under, such circumstances, the instructions in effect told the jury that, if they came to the *113conclusion that plaintiff was entitled to any damages at all, they must find according to his estimate, not consider anything offered by the defendant tending to minimize the amount demanded by the plaintiff. It is only new matter in mitigation which must be affirmatively stated. Anything in evidence which tends to disprove even the allegation of amount of damages is yet competent under the general issues, and must be considered by the jury along with the other testimony in the case.

7. In the opinion already mentioned, we also held that the following instruction to the jury was erroneous:

“Whether or not there has been in this case shown such a state of facts as will entitle the plaintiff to recover punitive or exemplary damages is a question entirely for your determination. You will look the testimony over carefully, and, if there is any evidence in this case that justifies you in giving it, why, you give it, and in the giving of it you are only to be governed by a wise and sound discretion.”

The petition for rehearing argues thus:

“When a verdict is made up of two elements, one compensatory and the other exemplary damages, and the amount of the verdict given can be accounted for as compensatory damages, if the ruling of the court as to compensatory damages is correct, and as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to exemplary damages incorrect, the court will presume that the jury followed the court’s correct instructions and found only compensatory damages.”

With the argument thus quoted as a major premise the petition lays down a minor premise, in substance, that taking from the total of $10,000, demanded in the complaint, the $3,000, asserted to be punitive damages, there would be left $7,000, whereas there was a general verdict for plaintiff for only $6,316.. This last amount, it is argued, is made up as follows:

Loss of profits.$5,333.00

Loss of rent from sub-tenants. 533.00

Damage to stock of goods. 450.00

Total $6,316.00

*114These items do not appear in the verdict, but are found only in the speculation of the petition. In the absence of a special verdict stating such items, we have no means of knowing what amount the jurymen allowed for compensatory damages or for punitive damages. Neither can we presume that they disregarded any instructions of the court, either erroneous or proper. The purpose of instructions to a jury is to influence and direct the members of that body in “their deliberations, and the presumption is that such purpose was accomplished and the instruction took effect according to its terms. Hence it is that giving an erroneous instruction operating materially against a party appealing constitutes reversible error.

3. The petition criticises the form of exception to the portion of the charge about which complaint was made. It is true, as laid down in Murray v. Murray, 6 Or. 17, and Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309), that an omnibus exception to a series of instructions, some of which are correct, will avail an appellant nothing, although others of the series are unsound. But here a separate exception was made to each specific instruction so that there is no doubt that the trial court was clearly informed about the defendant’s complaint concerning the charge.

With the modification above noted, the. former opinion will stand, and the petition for a rehearing is denied.

Reversed: Rehearing Denied.