174 P. 908 | Cal. Ct. App. | 1918
Plaintiff brings the action in claim and delivery. In his amended complaint he alleges that defendant is the duly elected, qualified, and acting constable of Sacramento Township, Sacramento County, and that, on the twentieth day of July, 1917, as such constable, defendant wrongfully took possession of a certain automobile under a writ of attachment, in a certain action, pending in said township, wherein Vina Hall is plaintiff and P. A. Smittcamp and Sadie M. Smittcamp are defendants; that, on July 21, 1917, plaintiff "made a verified demand upon said constable for the release of said automobile from the lien of said attachment, and of the said automobile so attached aforesaid by defendant, but defendant then and there failed, refused, and neglected and ever since has failed, refused, and neglected *790 to release said attachment, or said automobile, and the possession of said automobile is wrongfully held by said defendant"; that plaintiff at all the times mentioned in said complaint has been, and still is, the owner and entitled to the possession of said automobile; that the value of said automobile is $650, and that "plaintiff purchased said automobile from Sadie N. Smittcamp and Alice Tanner on the nineteenth day of June, 1917, and paid therefor the sum of $350"; that plaintiff paid one Mrs. Hall the sum of $125 to discharge a lien held by her on said automobile; that plaintiff has expended the sum of $153.75 for necessary tires and other equipment of said automobile; that the rental value of said automobile is $10 per day. The prayer is for possession, "or for its value if delivery cannot be had, with damages for the detention of said automobile, and for costs of suit." The complaint is duly verified.
Defendant, in his answer, justifies under the attachment referred to in the complaint; denies plaintiff's alleged ownership or right of possession; denies that plaintiff made demand for the release of said attachment; "denies that the value of said automobile is the sum of $650," but does not aver the value; denies that plaintiff purchased the automobile from the persons as alleged or for the sum as alleged "or any other sum"; admits the payment of $125 to Mrs. Hall as alleged, but denies that it was secured by lien on said automobile; denies that plaintiff has expended the sum of $153.75 for repairs or otherwise on said machine, or any sum whatever; denies that the rental value of said automobile was $10 per day "or any other or greater sum than four dollars per day."
The cause was tried by the court without a jury. By a minute order the court ordered judgment in favor of plaintiff for the return of the automobile, "or in lieu thereof, plaintiff is to receive the sum of $450 from defendant as the price of said automobile, and it is further ordered that plaintiff do have and recover from defendant damages for the detention of said automobile at the rate of five dollars per day from the twenty-first day of July, 1917, to the date hereof, amounting to the sum of $585." Findings were waived and judgment was entered in accordance with said minute order. *791
Notice of motion for a new trial was served and filed and at the hearing the court, on December 3, 1917, ordered that the "motion will be granted unless plaintiff files in court his written consent within five days to accept four dollars per day as damages in lieu of the damages heretofore ordered." Such consent was duly filed, December 8, 1917, but the motion for a new trial was not denied until December 31, 1917. Defendant served notice of appeal, December 12, 1917, from the order made on December 3, 1917, and from the judgment, but did not appeal from the order of December 31, 1917, denying motion for a new trial. There is no bill of exceptions or statement in support of the motion. The case is here on the judgment-roll alone and without findings of fact, which were waived.
The only question presented by appellant relates to the measure of damages. His contention is that damages for the detention of the property, in the absence of circumstances of aggravation or malice, "is legal interest on the value of the property detained, within a reasonable time after the property was taken."
The judgment is "that plaintiff have and recover of said defendant the sum of four hundred fifty dollars the value thereof; and that plaintiff do have and recover of said defendant damages for the detention of said automobile at the rate of five dollars per day from the 21st day of July, 1917, to the date hereof (November 15, 1917), amounting to the sum of five hundred eighty-five dollars, together with plaintiff's costs."
Respondent's contention is that appellant is seeking to apply the rule in conversion, whereas "in an action for claim and delivery the rule is different, the plaintiff is entitled to judgment for possession of the personal property, or the value thereof, and damages for the detention, which damages for the wrongful detention may be fixed by the court in a certain sum."
It is quite clear that the court fixed the damages on the basis of the rental value per day of the automobile. The admission of defendant justifies the fixing of this value at four dollars per day, but it does not necessarily admit that it was the proper measure of damages in the case.
The ordinary measure of damages for the wrongful detention of property is interest. Where, however, the property *792 has a usable value which exceeds the lawful rate of interest this rule has no application. In such a case the successful party is entitled to recover, as damages for the detention, the value of such use during the period that he was wrongfully deprived thereof. And this value is to be estimated by the ordinary market price of the use of such property. (34 Cyc. 1562-1564.) There are exceptions to this rule, but as there is neither evidence nor finding from which it may be ascertained whether or not the case falls within any of the exceptions, we must apply the rule as above stated.
It is to be observed that we have a statute specifically defining the measure of damages in actions for the conversion of personal property, viz.: "The value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party." (Civ. Code, sec.
The reason for the rule in replevin is that interest or the value of the property does not furnish adequate compensation for the wrongful detention. In some of the cases it is correctly said that the wrongdoer who had had the use of the property would make a profit out of his own wrong, which the law does not tolerate; and that it would deny to a plaintiff damages which naturally and certainly follow from a wrongful invasion of his rights. In the notes to the text (34 Cyc. 1563) the rule as above given is shown to have been applied in the case of household furniture; to buggies; boats; milk cows; threshing-machines, in the latter case holding that "the measure of damages for such detention is the fair rental value of the machine, less the damages which would result to it from the extra wear and tear caused by the use of it while so rented." (Peerless Machine Co. v. Gates,
The reason for the distinction between trover or conversion and replevin is well stated in Farrar v. Eash,
It may be that damages which cannot be ascertained with reasonable certainty, or which are contingent or speculative, cannot be allowed in an action of replevin. But here we have a distinct claim in the complaint for the rental value, $10 per day, for the machine, and a denial that the rental value was any greater than four dollars per day. We must assume that there was sufficient evidence to support the judgment upon this issue of rental value as being the damages for the detention. There is nothing so startling in the fact that the rental value allowed by the court amounts to more than the value of the machine as to compel a reversal of the judgment.
We have examined the cases cited by appellant in support of his contention. He cites also section
Freeborn v. Norcross,
In Kelly v. McKibben,
Livestock Co. v. Union etc. Co.,
We think the trial court was authorized to fix the damages for the detention of the property, under section
The judgment is affirmed.
Burnett, J., and Hart, J., concurred.