Bowman v. Lewis

• Citation: 102 P.2d 1,110 Mont. 435
• Decision Date: 25 April 1940
• Docket Number: 8044.
• Parties: BOWMAN v. LEWIS et al.
• Court: Montana Supreme Court

102 P.2d 1

110 Mont. 435

BOWMAN v. LEWIS et al.

No. 8044.

Supreme Court of Montana

April 25, 1940

Appeal from District Court, Ninth District, Pondera County; C. F Holt, Judge.

Action for conversion of personal property by Eva Bowman administratrix of the estate of Leah H. Lewis, deceased against Frederick F. Lewis, Laurine Storms, and Mrs. Roscoe Thompson, also known as Anna Thompson, and another. From an adverse judgment, the named defendants appeal.

Judgment affirmed, except as against Mrs. Roscoe Thompson, and as to her judgment set aside.

Speer & Hoffman, of Great Falls, and H. H. Hullinger, of Conrad, for appellants.

D. W. Doyle, of Conrad, for respondent.

ERICKSON Justice.

This is an action involving the conversion of personal property. The jury brought in the following verdict: "We, the jury in the above entitled action find in favor of the plaintiff and against the defendants F. F. Lewis $300.00, Mrs. Laurine Storms $300.00, and ______, in the sum of $600.00 dollars as actual damages. And we, the jury, find in favor of the plaintiff and against the defendant, Frederick F. Lewis in the sum of $500.00 Dollars exemplary damages, and against the defendant Laurine Storms in the sum of $200.00 Dollars as exemplary damages, and against the defendant Mrs. Roscoe Thompson in the sum of $100.00 Dollars as exemplary damages, and against the defendant Simonton Transfer and Storage Company in the sum of _____ Dollars as exemplary damages."

The judgment on the verdict was that the plaintiff recover "from the above-named defendants, Frederick F. Lewis and Laurine Storms the sum of $600.00 as actual damages and that the plaintiff have and recover of and from the above-named defendant Frederick F. Lewis the further sum of $500.00 as exemplary damages and that the plaintiff have and recover of and from the above-named defendant, Laurine Storms the further sum of $200.00 as exemplary damages and that the plaintiff have and recover of and from the defendant, Mrs. Roscoe Thompson the sum of $100.00 as exemplary damages and that the plaintiff have and recover of and from the said defendant Frederick F. Lewis, Laurine Storms, and Mrs. Roscoe Thompson the plaintiff's costs and disbursements herein taxed at the sum of $105.80."

The defendants' four specifications of error are: 1. That the verdict of the jury was contrary to the given instructions, that is, against the "law of the case." 2. That the jury had no power to apportion damages. 3. That the jury could not assess exemplary damages against Mrs. Roscoe Thompson, since there were no actual damages assessed against her. 4. That the court erred in rendering the foregoing quoted judgment amending the jury verdict, and erred in taxing costs against F. F. Lewis, Laurine Storms and Mrs. Roscoe Thompson.

We shall discuss first the question of whether the jury violated the instructions given in bringing in a verdict holding part of the defendants responsible for damages while freeing the others. It is settled law that the instructions given to the jury become the law of the case, and a verdict brought in in disregard of them will be set aside. LeClair v. School District No. 28, 74 Mont. 385, 240 P. 391.

The instructions claimed to have been disregarded were: "If the defendants (italics ours) unlawfully, and wrongfully took the property owned by the plaintiff from the possession of the plaintiff, it will be your duty to find for the plaintiff in an amount equal to the value of the property belonging to the plaintiff and taken by the defendants;" and also the instruction: "Unless you do find from a preponderance of the evidence that on or about the 15th day of June, 1938, the defendants, Frederick F. Lewis, Laurine Storms, Mrs. Roscoe Thompson, and Simonton Transfer and Storage Company, did wilfully, unlawfully, or wrongfully take and carry away personal property belonging to the plaintiff and described in the complaint from the possession of the plaintiff, your verdict must be for the defendants."

The precise question raised is, under the instructions that refer to the defendants plurally, and not also singularly, may the jury legally find only one or some of the defendants liable? It certainly could not have been the intention of the trial court to tell the jury that they must find all the defendants liable, or none of them. Such an instruction would have been erroneous, since "the fact that no case is made or recovery obtained against one defendant does not necessarily enable another defendant to escape liability." 65 C.J. 65.

We have no bill of exceptions before us, but apparently the jury found evidence of conversion by some of the defendants only. The jurymen used common "horse-sense" in interpreting the above instructions, realizing that just because all the defendants did not commit acts of conversion, they must turn them all loose. In a conversion case "a verdict may be found against one or more defendants and in favor of the others." 65 C.J. 127.

It seems to us that counsel is trying to "stretch a point" in arguing that the above instructions referred to the defendants plurally only. It might have been more distinct to have added the words "or any one of them" after the word "defendants," but apparently the jurymen had a full...