Loving v. Commonwealth

103 Ky. 534 | Ky. Ct. App. | 1898

JUDGE BUR.NAM

delivereh the opinion op the court.

This suit was instituted by appellees against appellant Loving and the firm of Buch & Perkins to recover damages for the malicious and wrongful’seizure of their stock of goods and the ejectment of appellees from their storeroom. The defendants filed a joint answer, denying liability, and the trial resulted in a joint verdict for appéllees against all the defendants for $200. They jointly made a motion for a new trial, which was granted to defendants, Buch & Perkins, but refused to appellant Loving, leaving the judgment standing against him.

Appellant in effect contends that, as the suit was against all the defendants as joint trespassers and the verdict and judgment for a gross sum against them all, that the law requires that plaintiffs shall be able to sustain them as to all or they will be good as to none, and that a new trial having been granted to his co-defendants, the court erred in overruling the motion as to him. # Every interference without legal authority by one man with the goods, chattels or personalty of another is a tort, and gives rise to a cáuse of action therefor; and when several persons unité with one another in the commission of a trespass, the liability therefor is both joint and several, and the injured party may sue all’of them jointly or some of them separately, because a tort is in its nature a separate act of each individual (Chitty’s Pleadings,' volume 1, page 86). And section 373 of the Civil Code' authorizes several separate or joint judgments against’ one or more defendants, as the casé may require. ' It is in thesé words: “Though several defendants are summoned, judgment may be rendered against any of them if the plaintiff would have been entitled to judgments against them in an , action against them alone.”

And this question seems to have been passed on by this court in several well-considered opinions, and they are, we think, uniformly adverse to appellant’s contention.

Shelton v. Harlowe, 15 B. M., 517, was an action for libel against three defendants who were sued jointly; there was a joint answer filed by all of them, and a joint verdict against all for damages; a motion for a newtrial was made, upon various grounds assigned, and by one of them (Roberts) upon the additional ground that there was no evidence against him; and' upon, a trial of this motion the coui't, being of the opinion that there was no proof against Robei'ts, put the plaintiff upon terms that she should dismiss her suit against him, and she having elected to comply with the terms and entered a nolle proseqm against Roberts, the motion as to the other defendants was overruled, and judgment was rendered against them for the amount of the joint verdict. Upon appeal this court said: “A plaintiff, after a verdict of guilty against several defendants, where several damages have been improperly assessed, may elect whether he will hold all liable by taking a judgment against all for the amount of damages, or only a part of the defendants, by a nolle prosequi against the others, and permitting him, as in the present case, to enter a nolle prosequi as to one not guilty, and taking judgment against those who are guilty. In each case it is a departure from the verdict, strictly speaking, but in both the substantial ends of justice are obtained.”

In Buckles v. Lambert, 4 Met., 434, plaintiff sued three defendants jointly for assault and battery; the jury found, a joint verdict against them, and judgment was entered accordingly; on motion a new trial was granted to one of them on the ground that lie was an infant, but was refused as to the other two, against whom the judgment was allowed to stand for the sum named in the joint verdict. On appeal this judgment was affirmed.

Appellant forcibly and without a shadow oi legal authority took possession of the store room, goods and chattels of appellees and subjected them to personal indignity, and the fact that he was an officer of the law tends to aggravate his offense. Appellees had the right to sue appellant alone, and would, in such action, have been entitled to judgment; and, considering all the circumstances surrounding the case, the verdict of the jury, so far as he was concerned, is not at all excessive, and he can not be heard to complain because his co-defendants were given a new trial.

For the reasons indicated the judgment is affirmed.