Bailey v. Walton

• Decision Date: 17 November 1909
• Citation: 24 S.D. 118,123 N.W. 701
• Parties: MAY N. BAILEY, Plaintiff and respondent, v. BYRON A. WALTON et al., Defendants and appellants.
• Court: South Dakota Supreme Court

24 S.D. 118, 123 N.W. 701 (1909)

MAY N. BAILEY, Plaintiff and respondent v BYRON A. WALTON et al.,

Defendants and appellants

South Dakota Supreme Court

Appeal from Circuit Court, Day County, SD

Hon. J. H. McCoy, Judge

Affirmed

Wells & Walton, Campbell & Taylor

Attorneys for appellants.

Sears & Potter

Attorneys for respondent.

Opinion filed Nov. 17, 1909

CORSON, J.

This is an appeal by the defendants from a judgment in favor of the plaintiff and order denying a new trial. The action was instituted by the plaintiff to recover the value of a piano alleged to have been seized by the defendants and sold upon a judgment recovered against G. O. Bailey, husband of the plaintiff. After alleging the taking and conversion of a piano valued in the complaint at $350, the plaintiff makes the following allegations:

"That on said day the defendants wrongfully took said piano and converted the same to their own use. That the said piano was taken under the following circumstances of oppression and malice, to wit: That at said time the plaintiff was, and for a long time prior thereto had been, the wife of G. O. Bailey, and resided with her said husband in the city of Webster, S. D., and was engaged in the business of keeping house for the said G. O. Bailey, and was, and had been for a long time prior thereto, the mistress of his household in Webster, S. D.; said household consisted of plaintiff, the said G. O. Bailey, and their children. That the said household resided in their home in the city of Webster, where they had maintained their home and residence for many years. That on said day the defendant Phillip A. Gross, as sheriff of Day county, S. D., held in his hand a certain execution issued in a proceeding in which one Murphy was plaintiff and G. O. Bailey defendant, which execution commanded the said Phillip A. Gross, as sheriff, to levy upon property of the said G. O. Bailey for the purpose of satisfying the same. That the defendants Wells and Walton were at said time attorneys engaged in the practice of law in the said city of Webster, and had been the attorneys for the said Murphy in procuring the said judgment. That the said Phillip A. Gross, pretending to act under said writ of execution, but in violation of the terms thereof, and for the purpose of oppressing this plaintiff, and under the direction, counsel, and advice of the said Wells and Walton, well knowing that the said piano was not the property of the said G. O. Bailey, but was solely the property of this plaintiff, entered the dwelling house aforesaid, in which the plaintiff was residing, and wherein she was the mistress of the family aforesaid, and without the consent of the plaintiff and against her will, did forcibly remove the said piano from the said dwelling house, and take the same into their possession maliciously and willfully, and well knowing that the same was not subject to levy under said execution, for the purpose of oppressing this plaintiff and for the purpose of causing her to contribute to the payment of said judgment against the said G. O. Bailey, and did thereby cause the plaintiff great shame, grief, annoyance, and mortification in having said piano taken from her, and did expose her to public shame and ridicule by the removal of the same from her house, and did then and there, as aforesaid, wrongfully take said piano and convert said piano to their own use. That the actual value of said piano was $350."

And the plaintiff further alleges that she was damaged by the said wrongful and malicious acts of the defendants in the sum of $1,000, to wit: in the sum of $350, in the actual value of said piano, and the further sum of $650, exemplary damages on account of the said wrongful, malicious, and oppressive acts of the defendant, and demands judgment for the sum of $1,000.

The defendants in their answer denied all the allegations of the complaint, except that the plaintiff with her husband resided in the city of Webster; that Phillip Gross was the sheriff of Day county; that on the 22d day of June, 1907, he held an execution issued under proceedings in which one Murphy was plaintiff and George O. Bailey was defendant, which execution commanded him, as sheriff, to levy on the property of George O. Bailey for the purpose of satisfying the same; that the defendants Wells and Walton were, at that time, attorneys engaged in the practice of law, and were attorneys for said Murphy in procuring the said judgment. It is disclosed by the evidence that the piano levied upon and taken from the home of the plaintiff and her husband was claimed by her as her individual property, having, as she claimed, been bought by her husband for her with money previously loaned to him, which was to be repaid by him by the purchase of a piano when she might desire him to do so; that on or about the 22d day of June, 1907, the defendant Gross, as sheriff, under the direction of the defendants Wells and Walton, entered into the home, occupied by the plaintiff, and took therefrom the piano so claimed by her, and the same was afterwards sold under the execution, and at the sale bid in by Mr. Wells, one of the defendants.

George O. Bailey, the husband of the plaintiff, testified that he had a conversation with both Wells and Walton prior to June 22, 1907, in relation to the ownership of the piano, and told them that it belonged to his wife; that his wife's money bought it, which had been given her by her mother and loaned to him by her; that the statement made to them by him was one or two weeks before the levy on the piano. He further testified: "I think I know about the value of pianos. I have seen them bought and sold." He was then asked the following question: "State it (the value)." Objected to by the defendants on the ground that no foundation had been laid. The objection was overruled. His answer was "I think the instrument was well worth $350. It was a well-toned instrument, and nice looking, and the instrument was just as good when it went as when it came in. There was not a scratch on it. It was in good order. I was not present when it was taken." It is contended by the appellants that the court erred in overruling the defendants' objection; but we are of the opinion that the statement of the witness that he knew about the value of pianos, and that he had seen them bought and sold, and that he thought he knew the value of pianos, was sufficient foundation for permitting him to answer the question as to the value. The witness was not subjected to any cross-examination, and prima facie his statements were sufficient to entitle his opinion of the value to 13e admitted in evidence.

The witness on cross-examination testified:

"I borrowed the money in the fall of 1902, and I put it into my business. I used it right away. I built my house here the same summer that we bought the instrument, 1904. I never gave my wife any other property on account of the money that I borrowed from her in the summer of 1902. I did not give her the house and lot in Webster. It is in her name. The money that built the house came from the house she owned in Wheaton, Minn."

The witness was then asked the following question: "Where did she get the money that went into the house in Minnesota?" which question was objected to as incompetent, irrelevant, and immaterial, and the objection was sustained. It is contended by the appellants that the court erred in sustaining the plaintiff's objection to this question; but we are of the opinion that the objection was properly sustained, as the question was clearly immaterial to the issue in this case, as the ownership of the homestead property was not involved, and it tended to introduce into the case a collateral matter not pertinent to the issues in controversy in this case, and was altogether too remote to shed any light upon the transaction then being investigated.

The plaintiff, being called as a witness, testified to substantially the same state of facts in regard to the purchase of the piano, and that it was purchased in repayment of the money loaned by her to her husband, and in the course of her testimony she stated that the piano was purchased of one Mr. Ainsworth, a music dealer doing business in the city of Webster, and she was thereupon asked the following question: "Q. When you bought this instrument, or during the negotiations or talk you had with Mr. Ainsworth, did you explain to him how this instrument was being bought?" this was objected to as immaterial, and the objection overruled. "A. I told him it was my mother's money that was buying the piano." It is contended by the appellants that this conversation between the plaintiff and Ainsworth was inadmissible, not being in the presence of either of the...