Edquest v. Tripp & Dragstedt Co.

• Decision Date: 14 March 1933
• Docket Number: No. 6989.,6989.
• Citation: 93 Mont. 446
• Court: Montana Supreme Court
• Parties: EDQUEST v. TRIPP & DRAGSTEDT CO.

93 Mont. 446

EDQUEST
v.
TRIPP & DRAGSTEDT CO.

No. 6989.

Supreme Court of Montana.

Feb. 16, 1933.
Rehearing Denied March 14, 1933.

Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.

Action by Charles E. Edquest against the Tripp & Dragstedt Company and another. From the judgment for plaintiff, defendants appeal.

Affirmed.

J. A. Poore, of Butte, for appellants.

James H. Baldwin and Alex Levinski, both of Butte, for respondent.

ANDERSON, Justice.

Plaintiff commenced this action against the defendants for the purpose of recovering actual and exemplary damages.

The defendant corporation on November 15, 1930, and for a number of years prior thereto, was conducting an apartment house in the city of Butte. The defendant Lindquist during the same period of time was an employee of the corporation in charge of the apartment house, performing certain janitor services, and collecting the rents. The plaintiff, his wife, and grown daughter were tenants of the defendant corporation from the year 1923 to and including the month of November, 1930.

The defendant Lindquist claimed, at various times for over a period of five years prior to November 15, 1930, his money, aggregating the sum of $644, had been taken from his apartment or office; that likewise other tenants had lost various sums of money from their apartments, also certain articles of personal property. Lindquist, on or about the 10th of November, 1930, reported the loss of the money and property to the chief of police of the city of Butte, and thereupon Police Officer Hannigan was detailed to assist in the apprehension of the person or persons who had been taking money and property from the apartment house. On the morning of November 15, 1930, the defendant Lindquist and Officer Hannigan deposited near a first-floor apartment entrance, adjacent to a doorway opening from one of the streets into the apartment house, a pound of butter, a loaf of bread and a can of coffee. Thereupon these parties stationed themselves in a vacant apartment in view of these articles, where their presence was concealed from persons entering the apartment house from the street, and awaited developments. Mrs. Edquest, the wife of plaintiff, entered the apartment house from the street, carrying a sack of potatoes; observing the articles, she removed the pound of butter, inclosed in a pastboard carton not otherwise wrapped, from the floor. After taking a few steps, she was detained by the officer, placed under arrest, and removed to the city hall in the police patrol wagon, accompanied by the officer and defendant Lindquist. After a little delay the same parties departed for the office of the county attorney, where one of the deputies was interviewed, and who made inquiry of the defendant Lindquist as to whether or not he desired to file a charge against Mrs. Edquest for stealing the pound of butter, to which he replied that he did not, and the deputy county attorney remarked, “I don't know anything about this case. Take her out of here.” Mrs. Edquest was then delivered in the sheriff's office and lodged in the county jail, where she was held for several hours.

Plaintiff testified that about noon he met Lindquist in the vicinity of the apartment house and was informed his wife was in the county jail for the theft of the pound of butter. A conversation ensued wherein Edquest was informed of the shortages, and promised Lindquist to make restitution for all sums of money lost both by Lindquist and the other tenants, in order to secure the release of Mrs. Edquest. After the promise of payment, they went to the county jail; the defendant Lindquist advised the sheriff that he did not desire to prosecute Mrs. Edquest; she was then released.

Following the return home of the plaintiff and his wife upon the same day, a conversation occurred between the plaintiff and the defendant Lindquist, at which time a statement in writing was furnished plaintiff of the various items of loss suffered by Lindquist and other tenants; also Lindquist threatened to prosecute Mrs. Edquest and send her to the penitentiary for the various thefts committed in the apartment house during the past five years, if payments were not made as promised.

Lindquist testified that he departed for Mandan, N. D., the former home of plaintiff's wife, to search for missing articles of property; finding none, he returned to Butte, where he encountered the plaintiff, who, according to his testimony, protested the innocence of Mrs. Edquest, and again Lindquist threatened to cause the imprisonment of his wife in the penitentiary if complete restoration of the funds taken was not made. Plaintiff thereupon paid Lindquist by check the amount of the claimed shortage in the sum of $644, and also paid the Lindborg sisters, who were tenants in the building, the sum of $40. The action was for the recovery of the sum of $684 claimed to have been paid under duress, and for exemplary damages.

The trial resulted in a verdict in favor of the plaintiff for $684 actual damages, and $4,000 exemplary damages. A motion for new trial was made, heard, and, pending decision thereon, the trial court suggested to plaintiff that he remit $2,000 of the punitive damages. Plaintiff accepted the suggestion, and in writing consented that the amount of punitive damages be $2,000 instead of $4,000. The motion for new trial was denied. The appeal to this court is from the judgment.

The court received in evidence, over objection, two annual reports for the year ending December 31, 1928, and the year 1930, filed in the county clerk's office by the defendant corporation. These reports disclosed the amount of authorized capital, the amount of capital stock paid in cash, the debts of the corporation, the names and addresses of directors and officers, and designated the office, if any, held by each of the persons mentioned therein. The defendants objected upon the ground that, the action being in tort against two defendants for a joint judgment, evidence of wealth of the defendants was inadmissible; that the offered exhibits were incompetent, irrelevant, and immaterial.

A portion of the offered exhibits was admissible for the purpose of establishing the identity of the officers of the corporation, as during the progress of the trial conversations between the plaintiff and the same officers were received in evidence as a part of plaintiff's case. The rule is that evidence may be admissible for one purpose but not for another. If, however, offered evidence is properly admissible for any purpose, it may not be excluded. Outlook F. Elevator Co. v. American Surety Co., 70 Mont. 8, 223 P. 905;Hester v. Western L. & A. Co., 67 Mont. 286, 215 P. 508.

The objection to a series of documents as a whole is not well taken if some of them are admissible. Thornton-Thomas Mercantile Co. v. Bretherton Co., 32 Mont. 80, 80 P. 10.

Where an instrument or document is offered in evidence, a portion of which is admissible and another part of which is inadmissible, it is the duty of counsel seeking to exclude the objectionable part to specify the same, and, in the absence thereof, the whole instrument is properly received in evidence. Groot v. Oregon Short Line R. Co., 34 Utah, 152, 96 P. 1019;Walker v. Maddox, 105 Ga. 253, 31 S. E. 165;Cole v. Johnson, 103 Or. 319, 205 P. 282;Aetitus v. Spring Valley Coal Co., 246 Ill. 32, 92 N. E. 579, 138 Am. St. Rep. 221;Vinal v. Inhabitants of Town of Nahant, 232 Mass. 412, 122 N. E. 295;Arizona Power Co. v. Kellam, 13 Ariz. 291, 114 P. 561.

Objection was made to the reception of evidence with reference to the wealth of the defendant Lindquist, and also to the instructionof the jury that in arriving at their verdict, with reference to punitive damages, they might consider the wealth of the defendants. The basis of all of these objections was, the defendants being joint, a joint judgment, if any, would be obtained, with no apportionment thereof among joint tort-feasors.

This court has held that, in assessing punitive damages, the jury should take into consideration all of the circumstances surrounding the act complained of, and may consider the wealth and pecuniary ability of the defendant (Johnson v. Horn, 86 Mont. 314, 283 P. 427;Ramsbacher v. Hohman, 80 Mont. 480, 261 P. 273;Winterscheid v. Reichle, 45 Mont. 238, 122 P. 740), although some courts hold to the contrary (17 C. J. 996). In each of the above cases the action was against a sole defendant.

Defendants assert that this court has committed itself to the rule, namely, that where an action is...