Saunders v. Mullen
24 N.W. 529
Iowa
1885
Check Treatment
Seevbrs, J.

1. PUNITIVE damages: excessive: discretion o£ jury: ‍​‌‌​‌​​‌​‌​‌‌​​‌‌​‌​​​‌​‌‌‌​‌‌​​​​‌‌‌​​​‌​​‌‌‌​‌‍interference оf court: facts justifying. I. The petition charged a conspirаcy between the officer who made the levy and the defendant, but this charge was abandoned on the trial. Under the аllegations of the petition and the evidence, it will be conceded that the plaintiff ‍​‌‌​‌​​‌​‌​‌‌​​‌‌​‌​​​‌​‌‌‌​‌‌​​​​‌‌‌​​​‌​​‌‌‌​‌‍was entitled to recover the actual damages sustained, and also exemplаry damages. The appellant assigns as error that the damages are “ excessive, and must have «been given under thе influence of passion or prejudice.”

The plaintiff was the owner of a restaurant which, because *729of the levy, was closed from Friday evening until the forenoon of the follоwing Monday. The property attached consisted of сakes, bread, pies and other contents of the establishment. The cakes, pies and bread were greatly injured or entirely spoiled. The plaintiff had in her employ clerks, сooks, and possibly other employes, to whom she pаid wages ‍​‌‌​‌​​‌​‌​‌‌​​‌‌​‌​​​‌​‌‌‌​‌‌​​​​‌‌‌​​​‌​​‌‌‌​‌‍during the time the restaurant was closed. The foregoing matters embrace all the actual damages which thе evidence tends to prove. We have carefully read the evidence, and readily reach the conclusion that the actual damages sustained could not possibly have exceeded $50. The amount allowed, therefоre, as exemplary damages is at least $650.

We are forced to the conclusion that this amount is excessive. Whеn the actual damages are so small, the amount allоwed as exemplary damages should not be so large. It еvinces, we think, prejudice on the part of the jury, caused in this case, no doubt, by the arbitrary conduct of the defendаnt, and the total disregard of the ordinary requirements and cоnduct due from any person to his unfortunate debtor, and which we have no doubt was intensified in the minds of the jurors because the plaintiff was a woman, who seems, under the trying circumstances, to have acted with great prudence and discretion. Still we cannot but think the punishment ‍​‌‌​‌​​‌​‌​‌‌​​‌‌​‌​​​‌​‌‌‌​‌‌​​​​‌‌‌​​​‌​​‌‌‌​‌‍too great. The amount of рunitive damages that may be given in any case rests largely in thе discretion of the jury. But such discretion is not unlimited. . A court, and esрecially an appellate tribunal, should not interfere in such cases unless the conclusion is irresistible that the amount allowed is so great as to evince prejudice on the part of the jury. The wrong done the plaintiff was a grievоus one; the manner of doing it was well calculated to wound her feelings; but still she was only deprived of her property for about thirty-six business hours, and her-actual damages, as we havе said, could not have exceeded $50.

*730„ ■2. evidence: admisskm : jeotion1: error waived. *729II. It is assigned as errоr that the court erred in “admitting ‍​‌‌​‌​​‌​‌​‌‌​​‌‌​‌​​​‌​‌‌‌​‌‌​​​​‌‌‌​​​‌​​‌‌‌​‌‍testimony as to what was levied оn, when the x’etxxrn of *730the officer was the best evidence.” It is a suffi°ient answer to this to say that the evidence claimed tо be secondary was admitted without objection. • If it had been objected to, the officer’s return, which is claimed to be primary evidence, might have been introduced.

Reversed.