93 Mo. App. 501 | Mo. Ct. App. | 1902
The suit was for the conversion by defendant of the following personal property belonging to the plaintiff, to-wit, one sorrel mare, one black mare, one two-horse wagon, one set of double harness, including collars and
The answer admitted defendant to be a corporation as alleged in the petition, denied all other allegations, and set up the following specific defense:
“And answering further and more specifically, defendant denies that it has converted plaintiff’s property as alleged in plaintiff’s petition, or that it ever intended to convert same, but defendant states that the facts are that said property of defendant lias been levied upon and attached by the sheriff of St. Clair county, State of Illinois, under and by virtue of a writ of attachment issued by the circuit court of said county of St. Clair on the fourteenth day of December, 1900, and served by said sheriff on the same day it was issued, and that said property is now and was at the time of bringing this suit in custodia legis and beyond the power and control of this defendant.
“(And for a further defense, and for a counterclaim to the cause of action set forth in plaintiff’s petition aforesaid, defendant states that on or about, to-wit, the twelfth day of December, 1900, plaintiff was employed by defendant to haul and deliver parcels, packages and merchandise; that on the afternoon of said twelfth day of December, plaintiff was sent out on a route with instructions to deliver certain articles and call at Certain places and collect certain other articles and bring same to defendant’s office; that plaintiff by reason of his carelessness and negligence, and by reason of his own wrongdoing, lost certain articles of merchandise to the defendant’s damage in the sum of $361.41.)
“Wherefore, defendant prays that plaintiff’s petition may be dismissed, and that a judgment may be rendered against*506 plaintiff in the sum of $361.41 and for the costs herein accrued.”
Respondent filed a motion to strike out the special defense on the following grounds:
“Eirst, that the matter pleaded did not constitute a counterclaim within the meaning of the statute in such cases made and provided, for the reason that it does not show a cause of action arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, nor does said matter show by proper averments any connection with the subject of plaintiff’s action.
“Second, that there is no showing that said pretended cause of action existed at the time of the commencement of this suit.”
The motion was granted,
Appellant filed an amended answer setting up substantially the same special defense, but stated it with greater particularity and more in detail.
To the amended answer, respondent filed the following reply:
“For reply to the amended answer and counterclaim of defendant, plaintiff denies each and every allegation therein contained.
“Further answering, plaintiff says that the matter alleged by way of counterclaim in said amended answer, is not the proper subject of counterclaim in this action and no evidence is admissible in support thereof and that the same matter has heretofore been stricken out of the first answer filed by defendant upon motion of this plaintiff, because said matter was not the proper subject of counterclaim in this, that the facts alleged do not arise out of the contract or transaction set forth in plaintiff’s petition as the foundation of plaintiff’s claim: nor do they show by proper averment any connection with the subject of plaintiff’s action.”
The evidence is that appellant is an Illinois corporation,,
The stolen liquor was not found and respondent returned to the office of appellant at noon as instructed by Morrison. When he reached the office his team was not there and he asked Morrison if he was not going to have his team sent back. Morrison said he had no one to bring it back. Respondent then said he would go after it himself. Morrison said, “No, you continue the hunt this afternoon and to-morrow morning you come down in time for work, and I will have your team and wagon over here.” Respondent returned to the office the next morning at seven a. m. ready for work, but his team and wagon were not there. lie asked Morrison about the team. Morrison’s reply was that he did not intend to bring them over until respondent paid for the lost goods. Respondent; contended that he was not liable for the lost goods and that if Morrison did not return his wagon and team he would sue for them. Morrison’s reply was: “You can sue and be damned; you will have to hire attorneys vdiile we pay them by the year, and wdiere you will be paying out a lot of money it won’t cost us anything.”
Respondent, employed J. S. McIntyre, a7i attorney, to get his wagon and team for him. This attorney in company with T. L. Crider went to see Morrison in regard to the matter and had an interview with him, in which Crider testified Morrison made the following statement:
“We then all three walked into the office over towards
Mr. Crider said further:
“Mr. McIntyre demanded the surrender of the team, upon which Mr. Morrison said they intended to keep the team to worry Eeamer and get even with the damn cuss.”
The evidence in respect to the value of the property converted is that the wagon was worth from two hundred and twenty-five to two hundred and fifty dollars. The two horses from one hundred and twenty-five to one hundred and fifty-five dollars, and the harness twenty-five dollars, altogether three hundred and seventy dollars to four hundred and five dollars.
Appellant offered to prove that respondent was intoxicated on the evening of the. twelfth of December, when his team was stolen and driven off, and offered evidence tending
The team was found by the police and taken to a livery stable, and Morrison testified that the company was notified and sent and got the team and wagon, and sent them over to East St. Louis to deliver the packages that were not taken from the wagon and had the team put up in the company’s stables and taken care of, and afterwards attached as the property of the respondent, for the payment of the loss on the goods that were stolen from the wagon, valued at three hundred and sixty-one dollars and forty cents. Respondent never saw his property after it was sent to East. St. Louis by Morrison.
The jury returned a verdict for respondent, assessing his actual damages at four hundred and one dollars, and his punitive damages at five hundred dollars. After an unavailing motion for new trial, defendant appealed.
I. The motion for new trial was not signed when filed. This fact was not noticed until the motion was taken up for argument, when the court permitted it to be signed by appellant’s counsel, and then considered it. Respondent contends that for the reason that the motion was not signed until after the lapse of four days from, the return of the verdict, there was no motion for new trial. We can not take that view of the ' matter. The omission to sign the motion before it was filed was a mere oversight of appellant’s counsel that did not prejudice the appellant, and we think the trial court exercised a wise discretion in permitting counsel to sign the motion after it had been filed.
II. The sixth ground set forth in the motion for new trial is as follows:
“The court erred in remarking (in the presence and hearing of the jury) during the trial of the cause, that the defendant did not have the right fio take the law into its own hands,’ since said words had a tendency to prejudice the minds*511 of the jury against defendant on the claim of punitive damages and otherwise.”
The remark, if made by the court, is not found in the bill of exceptions, the only repository known in our appellate practice for preserving the evidence of what takes place during the progress of a trial. State v. Grant, 144 Mo. 56; Stern v. Foltz, 152 Mo. 552. The remark complained of is, therefore, not. before us for review.
III. The principal error relied on by appellant for a reversal is that the court refused to admit any evidence tending to prove its counterclaim. Section 605 of our Practice Act (R. S. 1899) defines a counterclaim as “one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action arising out of one of the following causes of action: Eirst, a cause of action arising out of a contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action . . .” The transaction out of which a counterclaim may arise, includes all the facts and circumstances out of which the injury complained of arose. Ritchie v. Hayward, 71 Mo. 560; Emery v. Railroad, 77 Mo. l. c. 345.
The transaction which furnishes the plaintiff with a cause of action must in itself furnish the defendant with a cause of action against the plaintiff, or, it must furnish the facts and circumstances upon which the defendant’s right of action is founded, in order to entitle the defendant to recoup when he is sued by the plaintiff.
Suppose the respondent was guilty of culpable negligence by leaving his team unattended in the street, thus affording the thief an opportunity to drive off the team and take appellant’s goods from the wagon, what connection had respondent’s negligence with the subsequent taking and conversion of his team and wagon by the appellant? The transactions did not take place at the same time, neither was dependent upon
IV. The contention of appellant that the verdict for actual damages is excessive is not borne out by the evidence. The actual damages assessed by the jury are below the maximum value of the property as estimated by respondent’s witnesses.
V. Appellant moved the court to instruct, in substance, that there was not sufficient evidence of wantonness, willfulness or malice to authorize the jury to award punitive damages. These instructions were denied and we think correctly so. The evidence discloses the most high-handed and oppressive conduct on the part of appellant in its effort to extort money from the respondent by removing his property beyond the boundaries of the State and refusing to return it unless respondent would comply with appellant’s demand to pay for the property the thief’had stolen from the wagon, and when he refused to submit to this extortion instituted an attachment proceeding in the jurisdiction to which it had -wrongfully taken the property and where respondent did not reside and had the property attached there under judicial process which it had obtained by artifice and fraud. Such conduct falls but a slight degree below a positive crime and afforded an appropriate occasion for the award of punitive damages.
We discover no prejudicial error in the record and affirm the judgment.