De Celles v. Casey

• Decision Date: 28 February 1914
• Citation: 139 P. 586,48 Mont. 568
• Parties: DE CELLES v. CASEY.
• Court: Montana Supreme Court

139 P. 586

48 Mont. 568

DE CELLES v. CASEY.

Supreme Court of Montana

February 28, 1914

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Minnie J. De Celles against James S. Casey. From a judgment for plaintiff and an order denying a new trial defendant appeals. Reversed and remanded.

Frank & Cary, of Butte, for appellant.

BRANTLY C.J.

This action was brought to recover of the defendants Casey and Frank A. Shoemaker damages for the conversion of certain personal property of plaintiff, consisting of a set of Werner's Edition of the Encyclopedia Britannica and miscellaneous books, sheet music, and articles which may be classed as domestic utensils. The prayer was for a judgment for $500 compensatory and $1,000 punitive damages. The defendants filed separate answers in which they denied generally all the allegations of the complaint. They also alleged affirmatively certain matters as special defenses by way of justification or in abatement, upon which the plaintiff joined issue by reply. At the trial the issues in this behalf were eliminated from the case; the defendants relying exclusively upon the issues tendered by the denials. The jury returned a verdict in favor of the plaintiff for $1,050, of which, as is disclosed by a special finding returned with the verdict, by direction of the court, the sum of $50 was for the value of the property converted, and $1,000 for punitive damages. Judgment was entered accordingly. The defendants moved for a new trial. The court made an order granting their motion unless within 30 days the plaintiff would file with the clerk her consent in writing that the amount of the judgment be reduced by deducting from it, as of the date of its rendition, the sum of $500. The written consent was thereafter filed, and the judgment was amended accordingly. A new trial was then refused. The defendant Casey has appealed from the order and the judgment as amended. Counsel for plaintiff has not filed a brief. We are thus left to determine the appeals as best we may upon the contentions made by counsel for defendant Casey.

The first contention is that the complaint does not state a cause of action for a conversion. The sufficiency of it was questioned by general demurrer, which the court overruled. At the close of the evidence and at the suggestion of the court the pleading was amended by striking out one paragraph and amending another, so as to render definite and certain the allegation that at the time of the taking of the property in question the plaintiff was entitled to the immediate possession of it. The defendants objected to the amendment at that time, on the ground that it made the complaint sufficient, whereas prior to the amendment it was wholly insufficient and therefore the court could not lawfully permit or direct the amendment. They did not thereafter question the sufficiency of the pleading in any way. Counsel now contends that the court erred in overruling the demurrer. This contention is without merit. The pleading as amended took the place of the pleading as it stood at the beginning of the trial. Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 P. 303; Bordeaux v. Bordeaux, 43 Mont. 102, 115 P. 25. If therefore it be conceded that the original pleading was open to attack by general demurrer, for present purposes the integrity of the judgment must be determined upon the pleading as amended, and not upon the original pleading. The error, if such there was, in overruling the demurrer, cannot now avail the defendant.

But counsel insist that the complaint as amended is insufficient, in that it fails to allege in terms that the defendants converted the property. While the complaint is not a model and would have been open to an objection by special demurrer on the ground of uncertainty, it is sufficient to withstand an objection to it on the ground of insufficiency, made for the first time in this court.

Counsel contend, also, that the court had no power to permit or direct an amendment at that stage of the trial. Wherein the defendant suffered prejudice by reason of it, however, is not pointed out; nor is prejudice disclosed by the record. The power to allow or disallow amendments at any stage of the trial is within the discretion of the court. Rev. Codes, § 6589. If no abuse is shown, the court's action will be approved on appeal. Sandeen v. Russell Lumber Co., 45 Mont. 273, 122 P. 913; Dorais v. Doll, 33 Mont. 314, 83 P. 884. This discretionary power authorizes a court in proper cases, even on its own motion, to direct an amendment if in its opinion a nonsuit or mistrial may be avoided.

It is further contended that the evidence is wholly insufficient to justify the verdict in any amount as against Casey, or, in any event, that it does not justify a finding of punitive damages. The facts out of which this controversy grew are briefly the following: In August, 1910, the plaintiff and her husband were occupying a house in Butte which they had rented fully furnished. The husband, having closed up his business went to Great Falls to seek employment, expecting the plaintiff to follow him. Before leaving he packed into a barrel and three boxes the glassware belonging to the plaintiff, and other similar articles usually found in a household, together with a set of the Encyclopedia Britannica, and a number of miscellaneous books, sheet music, etc. These latter articles were packed in one of the boxes. The barrel and boxes were marked plainly as the property of the plaintiff and stored at the warehouse of one Dorais, who kept a grocery store in Butte. Dorais kept the packages gratuitously and merely as an accommodation. Presently the plaintiff also went to Great Falls, leaving the packages stored. Some time later Dorais' grocery business went into the hands of the Credit Men's Association of Butte, to be wound up for the benefit of its creditors. The association at first attempted to continue sales by retail, but finally concluded to sell out the stock by wholesale. This was done on or about October 12, 1910. The defendants Casey and Shoemaker were employés of the Butte Grocery Company. This company purchased a part of the Dorais stock and had it carted from the Dorais warehouse to its own warehouse. Both Casey and Shoemaker knew about the packages belonging to the plaintiff. While the purchases of the Butte Grocery Company were being carted to its warehouse under the direction of Casey and Shoemaker, Casey directed the drayman to bring plaintiff's packages to the company's warehouse. This order was countermanded by Shoemaker, and, for the time, the packages were left at the Dorais place. On a later day the box of books and one of the other boxes were brought to the warehouse with other goods. By whose order this was done does not appear. Casey, who was at the time receiving the goods as they were brought to the warehouse of the Butte Grocery Company, ordered one of the helpers to take the packages up to the second story of the warehouse and store them. What the contents of the second box were the evidence does not disclose, nor does it disclose their value, nor what became of the barrel and the other boxes. In December Mr. De Celles returned from Great Falls to look after the property, but could not find any of the packages in the Dorais warehouse or that of the Butte Grocery Company. He was told by both Casey and Shoemaker that they knew nothing about them. Later on, about February 10, 1911, Mr. De Celles, in company with a constable armed with a search warrant, went to the home of Shoemaker and there found the set of Encyclopedia Britannica and a lot of glassware which he identified as belonging to the plaintiff. He did not find the miscellaneous books and sheet music, nor any other of the articles. They were not found anywhere. Mr. De Celles took away the books but left the glassware where he found it. About a week or ten days after the boxes were taken to the grocery company's warehouse, in a conversation between Casey and...