222 P. 439 | Mont. | 1924
delivered the opinion of the court.
This is an action in conversion. The plaintiff in his complaint alleges that he is the owner of twenty-two head of cattle particularly described therein and that on or about the seventeenth day of October, 1921, the defendant, well knowing that the plaintiff was the owner of such cattle and entitled to the possession thereof, willfully and maliciously intending to deprive the plaintiff of the cattle, took the same and converted them to its own use, to plaintiff’s damage in the sum of $965, In addition to compensatory damages, $500 was asked as exemplary damages. By its amended answer the defendant denied generally the allegations of the plaintiff’s complaint, and affirmatively alleged that the cattle in question were
The errors assigned raise only the question of the sufficiency of the evidence as to plaintiff’s actual damages, and to justify the award of exemplary damages.
In this case the plaintiff elected to claim damages for the value of the cattle at the time of the alleged conversion. This was proper, for he would not be permitted to rely upon both measures of damages authorized by the statute. (Thornton-Thomas Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10.)
In this case we think the proof amply sustains the conversion of the cattle as alleged. It appears that the plaintiff is a brother of Jack Klind and a son of Callie Klind. In the fall of 1921 the plaintiff rented Jack Klind’s ranch, and moved there from Callie Kline’s ranch, the plaintiff taking with him his cattle. He had a duly recorded brand first registered by him April 15, 1918, and reregistered October 8, 1921, such brand being M D with a bar underneath it (M D), on the right ribs. Of the cattle in question twenty head were branded with plaintiff’s brand, one cow was branded with his brother Charles’ brand, W lazy A quarter circle underneath (W<), and one calf was unbranded. A calf was bom to the cow branded with Charles Klind’s brand after the alleged conversion. Jack Klind’s cattle brand is T lazy 4 (T^f-), on the right hip, and of the number of cattle so claimed by the plaintiff only one, a red cow, bore the Jack Klind brand, which was vented by crossing it diagonally with a bar, and this animal also carried the plaintiff’s brand. She had a calf and it bore plaintiff’s brand alone. The cow which bore his brother
Jack Klind being indebted to the defendant, and having executed to it a chattel mortgage covering a number of cattle as security, upon default in the payment of his indebtedness, the cashier of the defendant bank, S. M. "West, on October 17, 1921, went to the Jack Klind ranch in company with Charles Hall, sheriff of Valley county, and three range riders for the purpose of taking possession of the mortgaged cattle. The riders rounded up a considerable number of cattle, many of which bore the Jack Klind brand. The plaintiff then made claim to Mr. West and to the sheriff of the cattle involved herein, and protested against their being taken away. There were three of Jack Klind’s cows bearing his brand, with calves by their sides, which calves were branded with plaintiff’s brand. The plaintiff said he had bought these calves from Jack Klind in the spring with the consent of the defendant, and the plaintiff then offered to pay for them. Mr. West refused to 1st them go, saying, in effect, that was the deal all right, but “I think I will back out.”
Plaintiff’s cattle, together with the cattle bearing Jack Klind’s brand, about forty-one head in all, were driven away, and the following day the plaintiff executed and served on the sheriff his duly verified third party claim for the cattle involved, plus three head of calves, twenty-five in all. Later, on November 12, 1921, pursuant to published notice, all of the cattle so taken by the sheriff were sold on summary foreclosure in accordance with the terms of the mortgage. When the cattle were offered for sale the plaintiff climbed upon the corral fence whereby they were inclosed and held for inspection, and announced to all prospective buyers assembled that he claimed and owned twenty-three head of the cattle. He testified: “I told them, so everybody could hear. They didn’t pay any
Prima facie the plaintiff was the owner of the cattle involved herein bearing his recorded brand (sec. 3304, Rev. Codes 1921), and all evidence introduced by him in support of his ownership and title to the several animals was cumulative, save as respects the cow branded W lazy A quarter circle and the one unbranded calf. The only proof offered by the defendant in any way tending to dispute the plaintiff’s claim of ownership to the cattle was elicited from the witness West, cashier of the defendant. He testified that some time prior to October 17, 1921, he had a conversation with Jack Klind, at which Waino Klind was present, relative to the ownership of certain cattle belonging to the Klinds. The conversation took place near Callie Klind’s place. Concerning such conversation he says: “Callie Klind, Jack Klind, Waino Blind and I think both Charley and Dave, and at least one of the girls, were there. There were present at that time cattle which were represented to me as descendants of the so-called Hoke cows. Q. What conversation did you have with these Klinds relative to the ownership and to the past title of these Hoke cattle on that occasion? A. I asked them if these cattle with this brand, W lazy A quarter circle, were not Dave Klind’s cattle, and they went into
This proof was not sufficient to even overcome the presumption of plaintiff’s ownership of the cattle bearing his brand, but left a conflict in the testimony as to the ownership of the W lazy A quarter circle cow and the unbranded calf, which was resolved by the jury in plaintiff’s favor.
The appellant assigns as error, and argues, that the proof is insufficient with respect to the value of the animals alleged to have been converted, upon which to sustain a verdict of either actual or exemplary damages, and that therefore it is apparent that the verdict was given under the influence of passion and prejudice.
Frank Schultz, for the plaintiff, testified: “I have had around twenty years’ experience handling cattle up there, and during that time I have bought and sold some. At that time I did not have any cattle of my own, but I had some before that. I had a few head now and then; buy cattle and sell them again; running cattle with my father and brother; running those. This extended over something like twenty years. I believe I would know the market value of cattle in that vicinity on October 17, 1921, the time these cattle were taken. On the day the cattle were taken — the bunch of M D bar cattle that I saw at that time would value at approximately $950; that is what they would be worth to me if I had them. If I were selling them to someone, that is what I would want. I believe it would cost me that to buy similar cattle at that time. If I were buying these cattle per head, keeping in mind the condition of the cattle with the calves thrown in and all, I would figure them at around $65 a round, calves thrown in. I have seen cattle in 1921 just like this sell for $65 per round. I have seen cattle sell for more than that. That happened at different places I have been around. ’ ’
John Schultz, a witness for the plaintiff, testified that he is a stockman and farmer, and has raised stock in the vicinity to the extent of fifty or seventy-five head during the past twenty years. He described the animals specifically, from an inventory which he had made of them the day of the sale, and estimated the value of the bunch at between $900 and $1,050.
All this testimony of these three witnesses as to value was introduced without objection on the part of the defendant or question as to their qualification. On cross-examination of each of them, it appeared that none of them were familiar
Defendant’s contention relative to such character of evidence is not supported by the correct rule applicable. As to the owner’s version of the value of the property converted and the sufficiency of his evidence in that respect, Professor Wigmore, in his work on Evidence, lays down the correct rule as follows: “The general test, that anyone familiar, with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests. The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and the courts have usually made no objection to this policy.” (Wigmore on Evidence, 2d ed., sec. .716.)
The correct result was reached by this court in Roy v. Clark, (not officially reported), 215 Pac. 232, but this court was in error therein in indicating that, in an action of conversion, the owner of personal property, by reason of such ownership alone, is not qualified to give an estimate of its value. We are now satisfied that prima facie proof of ownership of personal properly alleged to have been converted is all that is required to qualify the claimant to make an estimate of its reasonable value, and so declare the rule.
Professor Jones, in his work on Evidence, by Horwitz, states the rule governing the testimony introduced in this case by the witnesses Frank Schultz and John Schultz as follows: “When a market value has not been created, the opinions of farmers who have dealt in the kind of animals which are the subject matter of inquiry is relevant as to value.” (Sec. 169.)
Reasonable experience in raising, dealing in and handling like animals is all the law requires in order to qualify one to give an estimate of the reasonable value of livestock. (Holland v. Huston, 20 Mont. 84, 49 Pac. 390; Emerson v.
It is true that the estimate of the value of these cattle was rebutted by the defendant, hut this simply raised a conflict in the testimony, and left the subject of the value a proper matter for determination by the jury within the limits of the evidence introduced. The jury were apparently satisfied with the plaintiff’s estimate of the value of the cattle, and it cannot be said that there was not ample evidence to justify the verdict as to the amount of actual damages.
2. As to the evidence justifying the award of exemplary damages, because of the malicious taking of the property, there is ample proof to support the verdict. With the cattle there were several horses rounded up bearing Jack Klind’s brand, and a particular horse with the rest claimed by the plaintiff. As to the latter horse the plaintiff laid claim thereto, and in this connection testified: "I tried to cut my cattle out from the rest, but Charley Hall and Mr.-West would not let me. After I told Mr. West these were mine, and what my brand was, and after I tried to cut them out, he said to the cowboys:" * * * Take them all.’ When I stopped cut
Frank Schultz testified: “When I was there at that time, the horses were in the first corral, in the straw corral. They finally went cutting the horses; they cut the bar horses out, the Jack Klind horses from Waino’s bunch, into a separate part of corral. In this bunch was a horse Waino claimed to own, and a while before he told me he wanted me to break this horse, K lazy K on the right shoulder — Weller horse and considered an outlaw. I went over that day to get him to break, they cut him out with Jack’s horses, and put him in the corral with Jack’s horses. Waino went in the corral to get the horse, and said it was his, and he did not want West to take this horse. West says: ‘We don’t give a damn who he belongs to; we are going to take him.’ After that Waino made claim for some cattle. I believe Dave and Waino started cutting back the M. D. bar cattle, and during the mix-up, while the Ottenstror boys, working for the bank and sheriff, were trying to take their bunch, and the Klind boys were trying to cut their cattle back, the sheriff says, ‘Hold on here! We will take those cattle,’ and they took them. After that Mr. West went over to my brother’s place with my brother and me to dinner, and we talked off and on all the way back about those cattle. I told Mr. West about knowing some of those animals, and he said undoubtedly there were some of those animals in there that belonged to Waino Klind all right, but he was going to take them along and make an example out of the Finns. I was at the sale at the McGregor corral; there were lots of fellows there; I could not tell all of them. There was a man named Bracken there; he went over with us boys. I heard Bracken
John Schultz testifed: “Jack Klind stepped up [to West], and said he had sold those calves and colts to Waino; he said, ‘You understand the agreement I had with you last spring; Waino wanted the colts and calves, and I told you he wanted to buy them, and you told me it would be all right to sell them.’ Mr. West said, ‘Well, I think I will back out on that deal; there hasn’t been anything paid down on this stuff.’ I knew a man named Bracken at that sale. I heard him speaking to Mr. West at the sale, and he said he came over to buy some cattle, but he didn’t want to buy the cattle that way; he said there was a dispute about those cattle. Mr. West said, if he wanted to buy any of those cattle, why didn’t he go ahead and buy them, or he could buy them yet. He said, ‘No; I don’t want to buy any lawsuit.’ The boy got on the corral and claimed those cattle, and no one denied him. They sold those cattle in a bunch. After they got through gathering the cattle and getting them away from there, Mr. Hall and Mr. West and myself and Frank, my brother, went over to my place and got us some dinner about 2 o’clock. About that time Frank said to Mr. West, ‘I am afraid you are going to get into trouble over those cattle’; and Mr. West said, ‘I don’t know.’ Frank said, ‘There is one in there he got from Lute, and I know that one steer in there’; and he said, ‘You will probably have a lawsuit on your hands’; and West said, ‘I will take a chance on it; I will take them anyway.’ ”
In defense, S. M. West says that he acted for the defendant bank in taking the mortgage security from Jack Klind on his cattle, and at the sheriff’s sale in making purchase thereof. He testified: “The defendant took charge of those cattle on the 17th of October, 1921, on Jack Klind’s premises. At that
Charles Hall testified: “I was sheriff of Valley county in 1921 and 1922, and was acting as such sheriff on the seventeenth day of October, 1921. As such sheriff, in the foreclosing of a mortgage on the Jack Klind cattle south of Hinsdale, at the request of Mr. West, or of the Valley County Bank of Hinsdale, we took possession of the stock and sold them. I was there when the stock were possessed, and took charge of same. At that time Mr. West made arrangements with some other parties to take care of the stock, and I delivered the stock to those other parties. At the request of Mr. West, under the chattel mortgage, this bunch of stock was afterwards sold by me, or some of my deputies.”
If this evidence shows malice warranting the award of exemplary damages, as we think it does, the agent’s malice is imputable to the defendant bank. (Grorud v. Lossl, 48 Mont. 274, 136 Pac. 1069.)
In the case of Luther v. Lee, 62 Mont. 174, 204 Pac. 365, this court correctly laid down the rule respecting the award of exemplary damages, as follows: “To warrant the re
The complaint in this action predicates the right of recovery of punitive damages on the malicious taking of the cattle by the defendant, and we think the evidence sufficiently indicates a wish on the part of the defendant to vex, annoy or injure the plaintiff under the Code definition of the words “malice” and “maliciously.” (Sec. 10713, Rev. Codes 1921.) Accordingly the award made by the jury was warranted. (See Moelleur v. Moelleur, 55 Mont. 30, 173 Pac. 419; Jones v. Shannon, 55 Mont. 225, 175 Pac. 882.)
“Malice, as a basis for exemplary damages, may be proved directly or indirectly; that is to say, by direct evidence of the evil motive and intent, or by legitimate inferences to be drawn from other facts and circumstances in evidence. Where punitive damages are sought, the motives of the defendant become a most material subject of inquiry.” (8 Cal. Jur., sec. 141, p. 908.)
In the instant ease the defendant evinced a wanton and malicious disregard of plaintiff’s rights.
The judgment is affirmed.
Affirmed.
