120 P. 181 | Wyo. | 1912
Lead Opinion
This was an action of replevin, and it comes to this court on error for the review of a judgment in favor of the defendant’ below. It is conceded that the property described in the petition, consisting of one team of mares, one wagon,- and 'one set of double harness, was taken upon the writ and delivered to the plaintiff. The verdict of the jury was as follows: “We, the jury duly impaneled and sworn to try the issues in-the above entitled action, do find for the de
It is contended by counsel for plaintiff in error that by the verdict and judgment the defendant was erroneously awarded damages for the wrongful detention of the property based upon the value of its use. It is urged in support of that contention that our statutes do not authorize a recovery by a defendant in replevin of damages for the detention of the property taken; that a clear distinction in that respect is found in the statutes between the damages recoverable by the plaintiff and those allowed in favor of the defendant; and that the defendant’s recovery cannot exceed the value of the property, when it has been delivered to the plaintiff, with interest upon such value as upon a debt.
A defendant in replevin may within forty-eight hours from the time the sheriff levies the writ - upon property described therein, execute with sufficient, sureties a written undertakng to the plaintiff, in at least double the value of the property taken, to the effect that the defendant will deliver the property to the plaintiff if such delivery be adjudged, and will pay all costs and-damages that may he awarded against him; and thereupon the sheriff is required to redeliver the property so taken to the defendant. (Comp. Stat. 1910, Sec. 501 x.) If such an undertaking is not furnished by the defendant, then it is required that the sheriff
When the property has been delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the defendant, they are also required to find “whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant against the plaintiff and his sureties.'” (Comp. Stat., Sec. 5017.) And when judgment is rendered against the plaintiff on demurrer, or he fails to prosecute his action to final judgment, it is provided that “the court shall, on application of the defendant, assess to defendant proper damages, including damages for the right of property or possession, or both, if he prove, himself entitled thereto, or cause the same to be done by a jury, for which, with costs of suit, the court shall render judgment for the defendant.” (Id., Sec. 5015.) Thus, when the property is delivered to the plaintiff under the provisions of Sections 5010 and 5011, “the plaintiff’s undertaking stands in the place of the property to the extent of the defendant’s interest, and . the property passes into the exclusive possession and control of the plaintiff.” (Boswell v. Bank, 16 Wyo. 161.) In other words, as stated by the Supreme Court of the United States in a case heard on error to the Supreme
The plaintiff’s recovery is regulated by the provisions of Sections 5016 and 5018, Compiled Statutes. The former provides that when the property is delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the plaintiff, and upon inquiry of damages upon a 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 the plaintiff. It is provided in Section 5018 that when the property is not taken, or is returned to the defendant for want of an undertaking by plaintiff provided for by Section 5010, the action may proceed as one for damages only, and plaintiff shall then be entitled to such damages as are right and proper. The proper judgment to be entered where the plaintiff recovers and the property has been redelivered to the defendant upon his giving the undertaking provided for in Section 5011, was considered in Boswell v. Bank, supra.
Since the statute expressly provides that damages for the illegal detention of the property may be assessed when the finding is for the plaintiff, and the property has been delivered to him or remains in the hands of the sheriff, and does not so expressly provide as. to damages which may be recovered by the defendant, but that when the finding is in his favor damages which are “right and proper” shall be assessed, it is contended by counsel for plaintiff in error that the legislature has determined that damages for illegal, detention are recoverable only where the plaintiff is successful under the conditions specified in Section 5016, and that this excludes the right to assess such damages to the defendant in any case. Opposing counsel, on the other hand, suggests that by analogy the rulé prescribed in Section 5016 should be applied in enforcing the provision of Section 5017'for the assessment of “right and proper” damages' in
At common' law a defendant in an action for replevin might have a return of the property upon establishing his right thereto, but he could not recover damages or costs. Statutes were enacted to remedy such unequal and unjust' condition, whereby the defendant was allowed damages and costs in case he recovered. The right of a defendant to damages, therefore, and the extent or measure of .that right, depends upon the particular statute authorizing such a recovery. Our statute allows him to recover such damages as are “right and proper.” Construing this statute, it was held in Gregory v. Morris, supra, by- the Supreme Court of-the United States, that if entitles the defendant to such damages as are “right and proper under the circumstances.” That is clearly the natural and obvious meaning of the provision; and it contemplates that the defendant shall have adequate compensation for. the injury sustained by the wrongful act of the plaintiff. It was so held in Nebraska upon a consideration of the same provision in the statutes .of that state, the court saying: “The code means that he shall be fully compensated when it says -that he shall have such damages as are' right and proper.” (Schrandt v. Young, 62 Neb. 254.)
The universal and paramount principle underlying all rules on the subject óf compensatory damages is, that the person injured shall receive a compensation commensurate
Ordinarily interest upon the value during the time ■ the successful party was deprived of the property is the proper measure of damages for the detention, but' it is not always or necessarily so. Where the property-is valuable-for its use, the value of its use may be recovered instead of interest. (3 .Sutherland bn Damages, 559, 560; Cobbey on Replevin, 2nd Ed., Sec. 886,; Shinn on Replevin, Sec. 646;
In the section cited from Cobbey on Replevin, it is said: “It is true that interest on the value of the property wrongfully detained is sometimes considered the proper measure of damages in replevin cases, but it was never regarded as limiting the amount of the damages which might be allowed, and in the nature of things it should not be.” And in Section 887 the author says: “In the case of work-cattle or horses, tools or implements of trade or husbandry taken from the owner, who is thereby deprived of their use, the reasonable value of that use will in 'most cases be the only just compensation for their detention.” (See also Sec. 888.)
It has been held that where a defendant elects, under a sfatute authorizing it, to take a judgment for value instead of the return of the property, he is limited in his recovery to the value and the interest thereon. The ground upon which that has been so decided is that by such election the defendant, in effect, makes a sale of the property to the plaintiff at the date of its taking, so that the value with interest up to the date of the verdict is a fair compensation. In other words, the defendant in such case, having the right of election, • waives the wrongful act, like a plaintiff who sues in trover. (Just v. Porter, 64 Mich. 565; Becker v. Staab, 114 Ia. 319; Bigelow v. Doolittle, 36 Wis. 115.) In the Michigan case the court say: “If he prefers to take the property, and the value of its use while detained, he can do so. The option is his, and not the plaintiff’s. There is no justice in his taking the value of the property, selling it to the plaintiff against his will, and also charging him with the use of it in addition.”
It is contended that the rule so adopted should be applied here, since the defendant is not entitled to a return. But there is a substantial difference between our statute and one requiring the defendant to elect whether he will take a judgment for the raturn of the property or its valué. In
It was at one time held in Nebraska that a defendant in’ replevin was entitled to damages for detention only when the property was returnéd to him, and that if a verdict is for the value, “the action in that respect being one for damages only, the measure of damages is the value of the property as proved, together with lawful interest thereon.” (Romberg v. Hughes, 18 Neb. 579.) In that respect the case was overruled in Schrandt v. Young, 62 Neb. 254, where the question is considered in an able opinion by Judge Pound. In that state, when the defendant recovers, an alternative judgment is required for the return of the property, or, if return cannot be had, for the value or value of possession, and for damages for withholding the property. As said in the opinion in the case last cited, the election to return or pay the value is left practically to the plaintiff, and it is further said: “The rule in Romberg v. Hughes is not required by, nor has it any support from, the statute or the authorities, and has been cited only to be received with doubt. * * * Nor is it sustained in a jurisdiction like ours, where the defendant is not required to elect whether
The evidence is not here, but it is evident that the amount allowed as damages for thé detention exceeded the interest, since less than a' year intervened between' the time when the suit was commenced and the date of the verdict, and it is conceded that the assessment of- such' damages was básed upon the value of the use of the property. For the reasons stated, the judgment is not objectionable on that ground. Having thus disposed of the only objection urged against the verdict and judgment,'it is unnecessary to consider the points suggested by counsel for defendant in error relative to the sufficiency of the motion for new trial to raise the question. The judgment will.be affirmed.
Rehearing
ON PETITION FOR REHEARING:
A petition for rehearing has been filed in this case and counsel for plaintiff in error has ably and courteously discussed the qüestion .considered in the former opinion, contending that the court erred in holding that, a defendant in replevin, if successful, is. entitled -to recover anything by way-of damages for the detention of the property taken upon the writ; and that he may recover as such damages, under the circumstances stated-in the opinion, the value of the-use of the property instead of interest. -It is earnestly argued- that- under our statutes a plaintiff in replevin- who has acquired possession of the. property taken upon the writ by giving the authorized undertakng cannot properly
It may be said that in this case the defendant alleged b}r his answer that by being deprived of the use of the property during the pendency of the action he was damaged in the sum of $200. Without considering whether the value of the use, if recoverable at all, would be upon the theory of special damages", or whether the allegation of the answer would be sufficient to authorize such recovery as special damages, we proceed to a discussion of the contention of counsel that a plaintiff in replevin after securing the delivery of the property to him cannot be held to wrongfully
Why is it that upon plaintiff’s giving the undertaking, which he is allowed by statute to do and thereby obtain a delivery of the property to him, the title is passed to him as against the defendant? Surely not because it is determined by such action that he is the true owner of the property, for that is one of the questions to be decided at the trial, if he claims ownership. The reason is and must be that the statute allows the defendant in such case to recover damages only, if he succeeds upon the trial, and provides only as to the condition of the plaintiff’s undertaking that he shall duly prosecute the action and pay all costs and damages which may be awarded against him. Perhaps it is immaterial whether the damages to be so recovered, in excess of the value of the property and interest, are to be regarded as general or special. Counsel argues that when the plaintiff has so secured the delivery of the property to him, being authorized by law to do so, his detention of the property thereafter is not wrongful. It might as correctly be said that his act in suing out the writ and obtaining possession of the property is not wrongful, for the law also authorizes him to do that. But he is allowed to do that, and thereby keep as well as take the property upon the condition that he shall enter into an obligation to pay all costs and damages that may be awarded against him. And if it be finally determined that he was not entitled to the possession, then clearly it will thereby be determined that his act in suing out the writ and causing the property to be delivered to him was wrongful; and if that act was wrongful, it follows by the same reasoning that the detention would be wrongful. To state it differently and perhaps more accurately, the wrongful suing out the writ results
Instead of perceiying any injustice in allowing the de» fendant full and adequate, compensation by awarding the value of the use of the property rather than interest, where •the property is shown to have had a usable value exceeding interest, as contended by counsel, we think that great injustice might result in such case from a rule confining the defendant’s recovery to the value of the property and inter-,, est thereon, upon the theory that the plaintiff, by wrongfully pursuing the remedy which the statute has provided for one who finds his property unlawfully in the possession of another becomes in effect the purchaser of the property de
We are not strongly impressed by the argument that our statute which permits a defendant to give a re-delivery bond and thereby retain possession is analogous to statutes of other states allowing a defendant to elect in case he recovers to either take a judgment for value or for a return of the property, so that his failure to give the bond should be treated as an election on his part, bringing the case within the rule adopted under such statutes that where the election is to take judgment for value the recovery is limited to the value and interest, on the theory that by such election he has in effect sold the property to the plaintiff. The defendant is not required to give a re-delivery bond, though he may do so. Under the statute permitting it he is not as free to act as a defendant who is merely required to say upon recovery at the trial that he will take a judgment for value instead of for the return 'of the property. It may be that his situation is such as to make the giving of .the re-delivery bond impossible. On the other hand, every act of the plaintiff in commencing the suit and giving the undertaking whereby he obtains possession of the property is voluntary on his part. And he takes that action with the knowledge that his obligation and liability' will be to
To hold'that'the act of the plaintiff in so commencing the suit, suing out the writ,, and obtaining possession of the property, consummates in legal effect a sale of the property to him, thereby limiting the damages of the defendant to the value of the property and interest thereon, as upon a legal sale without express agreement as to price, would put it within the power of anyone capable of giving the statutory undertaking, and against one unable to furnish a re-delivery bond, to force the sale of any personal property to him which he might desire and be willing to pay the market price for against the consent of the'true owner. And even if the true owner in such case, upon his property being so taken from him, might be able to give a re-delivery bond but unwilling to do so, there would be no just reason' in a statute imposing upon "him the penalty of either giving the bond or consenting, by refusing or declining to do so, to the sale of his property at such price as it may be found upon the trial to have been worth, so as to limit his recovery to such value with legal' interest; where he is able to establish that the property had a usable value in excess of the interest of which he has been deprived. And we do not think that our statutes are to be construed to have that effect.
We are satisfied that the case was properly decided and upon a correct principle under our statute as herein explained. A re-hearing is therefore denied.
BuaRd, C. J., and Scott, J., concur.
