97 P. 115 | Utah | 1908
This is an action in trover, commenced by the respondent against the appellants, to recover the value of certain household goods which, she alleged in her complaint, the appellants had converted to their own use. The complaint contains the usual allegations in actions of this kind, and the answers, in addition to certain denials, contain matters in mitigation of damages. The evidence at the trial was very voluminous, and hardly admits of being stated in abridged form, so as to make a comprehensive statement of it, without devoting more space to such statement than is practical within the limits of an ordinary opinion. We shall therefore coniine ourselves to a statement of such facts only as are deemed necessary to make clear the points decided. Such facts, substantially, are as follows:
In August, 1903, the respondent broke up housekeeping and packed up and stored her household goods with the appellant Eedman Van & Storage Company, hereinafter, for convenience, designated as “Storage Company.” During the spring and summer of 1903, and while she was conducting a .private boarding house in this city, she purchased some furniture and other goods from the appellant Harris on the installment plan, for which she executed and delivered a conditional sale note, by the terms of which Harris
Respondent, in her testimony in chief and upon cross-examination, which covers upwards of three hundred typewritten legal cap pages, described all the different articles, and produced a memorandum or list of them, which she claimed, with a few exceptions, she made at the time she packed the goods before storing them. Respondent had no communication with appellants, after leaving Salt Rake City, until in March, 1905, at wthich time she remitted to the appellant Harris the sum of $125; this being the amount she thought she still owed him on the goods bought from him. This amount appellant retained, but informed respondent that he had paid the storage on and had taken the goods, and had sold them, and that, after crediting her account with her remittance, there was a balance due her amounting to $48.45. Up to this time respondent supposed that her goods were all packed and stored with the Storage Company. , She at once wrote to Mr. Harris and objected to what had been done, and some time afterwards, through one of her attorneys, demanded her goods. It then developed that Harris had not sold all of them, but had stored some away at his home, and he offered to return such as he still had to respondent. Some of them she accepted, and some she rejected on account of the condition they were in, and for the value of such as she did not accept and for those she did not obtain from appellants she brought this action, alleging the value of the lost goods at $1,800. She, however, prayed judgment for the sum of $3,000. The case was submitted to a jury, who found in favor of respondent and against both appellants, and fixed respondent’s damages at the sum of $2,202. In passing upon the motion for a new trial the trial court conditionally reduced the amount of the verdict to $1,800, which respondent
The first alleged error to he noticed arises upon the admission of the testimony of respondent with regard to the value of the various articles of household and other, goods. Pe-spondent, after showing her knowledge with regard to the first cost of articles of the kind in question as a housewife and purchaser, was permitted to state the cost price of the several articles, and in connection therewith to state when, where, and by whom purchased, the length and character of the use of the different articles, the condition they were in at the time she stored them, and was also permitted to state the condition and value ¡of each article as compared with new articles of the same kind or class. In many instances she placed the value of the articles which she had lost at the cost price, upon the ground, as she stated, that they were just as good as new, and in other instances she made allowance for use and wear, and reduced the value to the extent that, in her judgment, it 'should be reduced by reason of the use and wear aforesaid. It is now urged that the court erred in admitting this testimony, for the reason that the testimony with relation to the value of the articles should have been limited to the market value or price of the articles, and that general value or cost price as a basis of value should not have been admitted, unless it was made to appear that the articles the value of which was in issue had no market value, which, it is asserted, was not done. It is true that market price or value is the true basis from which the value of an article is to be ascertained in a court of justice; but, as we pointed out in Smith v. Min. & Smelt. Supply Co., 32 Utah 21, 88 Pac. 683, it is not the only basis from which the actual value of articles may be ascertained in case such articles are not on the market and therefore may not have a market price or value.
This is conceded by appellants; but they urge that it cannot be presumed the articles did not have a market value, and before evidence'of cost price is admissible it should be made to appear that the articles in question have no market value. It may be conceded that the general rule for ascertaining
It is further asserted that the court erred in giving instruction No. 10, wherein the court directed the jury with respect to the measure of damages. The exception is, however, directed against the whole instruction, while in the brief and upon oral argument counsel only assail a part of the instruc
A portion of instruction No. 11 was duly ex«epted to and is now urged to be erroneous. In this instruction the court in substance told the jury that they might allow respondent the costs and expenses, if any, which she had incurred, not including counsel fees, in obtaining possession of that part of the goods which were returned to- her and which she accepted. It is conceded by counsel for appellants that the instruction, abstractly considered, states a correct legal proposition ; but it is urged that there was no evidence upon which to base it, and in view of the amount allowed by the jury it is claimed that they must have allowed for matters not supported by the evidence!. It must be conceded that there is no direct evidence which shows that respondent expended anything save time and car fare in regaining possession of her goods, and the amount in money, if any, so expended is not shown. We do not think, however, that for this reason the case should be reversed. The presumption is that the jury followed the instruction of the court, which was to allow such expenses only, if any had been incurred; that is, if any had been proved, 'the court did not instruct the jury what to allow, nor to allow anything, but to make an allowance only in case it appeared from the evidence that respondent had incurred any expenses in that regard. We do not think the jury was misled by what the court said in this respect. A somewhat similar question was involved in Leak v. Railway Co., 9 Utah 246, 33 Pac. 1045, affirmed in 163 U. S. 280, 16 Sup., Ct. 1020, 41 L. Ed. 160. In that case there was neither pleading nor evidence to support the instruction, and still the court held that under all the circumstances disclosed by the record the error was not prejudicial. In view of the whole record, we are clearly of the opinion that no pre
Another assignment of error is based upon the ruling of the court in excluding certain secondary evidence with respect to the contents of a certain conditional sale note, Avhich the appellant Harris claimed respondent had made and delivered to him as evidence of the purchase of some of the articles in question, and to which Harris claimed title by reason of this alleged note. Respondent denied the execution and delivery of the note. Neither Mr. Harris nor any AAÚtness in his hehalf testified to any fact or facts Avhich justified the court in holding that such a -note was ever executed by the respondent, even though the court had been justified in holding that there was some evidence that some such note at one time existed. It Avas not sufficient to show that a note existed at some time, but Harris Avas required to produce some competent evidence that tended to' show that the note was one Avhich was executed by the respondent. This he failed to do, and hence no secondary evidence of the contents of any note purporting to bind the respondent was admissible. The most the evidence tended to prove was that Harris at some time saw a note to which he claimed the name of respondent Avas subscribed, without being able to state that it was her signature. This falls far short of offering evidence Avhich tended to establish the fact that respondent had signed the note. Upon this point the lack of competent evidence is so palpable that, if the court had permitted secondary evidence of the contents of the note, it Avould have constituted error against respondent. If promissory notes or written obligations could be established in the Avay it Avas attempted to be done in this case, no one would be invulnerable against claims of this kind. The court committed no error in excluding the evidence.
Numerous other errors are assigned relative to the admission and exclusion of evidence. None of these rulings require special consideration. In passing upon those it must suffice to say that Ave have carefully examined the whole evi-
This brings us to the last assignment, which, as we view it, presents the only serious question in the case, namely: That the damages allowed by the jury, and as reduced by the court,' are. excessive, and not supported by the evidence. We remark that counsel for both parties have thoroughly sifted the whole evidence, and in doing so have set forth in a list in the printed abstract all the articles, together with the value as testified to by respondent. This has been a great aid to us in determining the question now under consideration. We have likewise gone over the entii'e evidence as preserved in the bill of exceptions, and from it have verified the correctness of the list prepared by counsel. In rechecking the list we have found some slight errors, both for and against both parties. The value, including all conjectural and speculative-values of all the articles as testified to by respondent, after-crediting the errors aforesaid, we find amounts to the sum of $1,412.15, instead of $1,376.60 as claimed by counsel for appellant, and $1,433.10 as claimed by counsel fqr respondent. From the amount as found by us must-be deducted the-sum of $173.45, which is the conceded value of the articles which belonged to Mr. Harris under his conditional sale note, referred to- in the statement of facts. This would leave an apparent net value of $1,238.70. We say apparent net value, for the reason that in arriving at this amount we have taken the testimony of respondent exclusively as to values. This we are obliged to do. It was for the jury to weigh the evidence and pass upon the credibility of the witnesses. In case, however, where there is no- competent evidence in support of any fact, or, as in this case, in support of the value of the articles as found by the jury, it becomes a mere question of law1, since no finding can be upheld as a matter of law unless it is based on some competent.evidence. Upon a very careful-examination and recheeking of the whole of respondent’s testimony with regard to values, we have found numerous in
There are quite a number of small articles, which the respondent termed “heirlooms” or “keepsakes,” upon which she placed no value in money, but said that gold or money could not have obtained them from her. They were not for sale at any price. As we have pointed out, the jury fixed her loss at $2,202.20, and the court reduced it to the value claimed by the respondent in her complaint, namely, to $1,800. Counsel for the appellants contend that the amount is excessive and is not supported by the evidence, while counsel for respondent assert that the law in certain cases permits a recovery in excess of the ordinary value for certain articles. This claim is based upon the doctrine stated in 4 Sutherland on Damages (3d Ed.), section 1099, where the author states the rule as follows:
*234 “One criterion of damage may be its actual value to the owner, and this is the rule where it is chiefly or exclusively valuable to him. Such articles as family pictures, plate, and heirlooms should be valued with reasonable consideration of and sympathy with the feelings of the owner.”
See, also, Bateman v. Ryder, 106 Tenn. 712, 64 S. W. 48, 82 Am. St. 910, where the rule is illustrated and applied. In view of this, it is asserted by counsel for respondent that the jury were authorized to fix the damages at the amount allowed by them, and that the trial court should not have disturbed the verdict, and in doing so, if any one was injured, it was the respondent, of which she does not complain, but insists that the amount as found by the trial court should not be further disturbed by this court.
We have no hesitancy in saying that the rule as laid down, by Mr. Sutherland is just and salutary. In view of all the evidence, however, it can be applied only to a very limited extent in this case, and, so far as it can be, we have given it full scope in fixing the amount as stated above. The articles to which the rule could be applied were very few, and there was practically no evidence with respect to. their cost, and where there is any the cost was shown to be insignificant. In addition to this there is no evidence with regard to the value of these articles, either sentimental, sympathetic, or nominal. There is no basis, therefore, from which eithpr the court or jury could fix their value. The jury, no doubt, was influenced in arriving at the amount by the conduct of appellants, and especially the conduct of Harris, towards respondent after she demanded her property from him -after the conversion^ ¡The case was, however, not submitted to the jury upon the theory of allowing punitive damages, and the jury were not authorized to allow such. In view of the facts that respondent had not obtained the title to all of the property, and had mot fully paid for it, and had not paid either the costs of packing or storing, nor advised either of the appellants of her plans or residence, the appellants were justified in resorting to legal methods in obtaining the amounts due themA^Vrhey had no right, however, to do it in the man
I We feel constrained to say that, if this were merely an .ordinary case of conversion, we would be inclined to reverse the judgment unconditionally upon the ground that the jury allowed excessive damages. ¿¿The case is, however, unusual in many of its features, and in view of the circtunstances, and the apparent impossibility of the appellants to either justify their conduct or to replace the very numerous articles converted by them, it is not likely that any jury would very much reduce the amount found by the present one. ] We arrive at this conclusion because the verdict of the jury does not appear to have been based upon passion or prejudice, but seems to have been induced by what they considered a wrong
It is therefore ordered that the amount of the judgment be reduced from $1,800 to $1,130.55, with interest as aforesaid ; that in case the respondent shall remit from the judgment the difference between the amount of the judgment as it now stands and the amount as stated above, and will file such remittitur with the clerk of this court within fifteen days after being notified of this decision, the judgment will be affirmed as modified; otherwise, it will be reversed, and a' new tidal ordered. In case the .respondent shall not remit the amount from the judgment as above stated, but shall elect to have the