Elmore v. McQuestion
| Decision Date | 31 January 1967 |
| Docket Number | No. 41307,41307 |
| Citation | 423 P.2d 1016 |
| Parties | Jack ELMORE, Plaintiff in Error, v. Dr. Mae Derr McQUESTION, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
This court is committed to the rule that a motion for new trial is addressed to the sound legal discretion of the court, and that every presumption will be indulged in favor of the ruling of the trial judge and that where such motion is granted, then on review this court will not disturb the same in the absence of a clear and convincing showing that such action constituted error on an unmixed question of law, or that such action was arbitrary or capricious.
Appeal from the District Court of Oklahoma County; A. P. VanMeter, Judge.
Action to recover damages for conversion of property and the removal of said property from the premises theretofore rented by a tenant and for the failure to surrender said property to plaintiff. After a jury returned a verdict in favor of plaintiff, defendant filed a motion for new trial, which the court sustained unless the plaintiff would agree to a remittitur. Plaintiff refused to agree to the remittitur and appealed. Affirmed.
Richard J. Spooner, Oklahoma City, for plaintiff in error.
Jarman & Jarman, by J. H. Jarman, Oklahoma City, for defendant in error.
The parties to this appeal appear as they did in the trial court. The final pleadings are simple, consisting of a second amended petition and a verified answer.
In the petition the plaintiff alleges that he was in the peaceful possession of certain premises located in Oklahoma City and had therein certain of his possessions, the latter described in detail in Exhibit A attached to said Second Amended Petition; that plaintiff was the lessee and defendant was the lessor of said premises.
The plaintiff alleges that while in possession of said property the defendant, acting without any right or authority, through her duly authorized agents, maliciously entered on said premises by breaking plaintiff's lock and forcibly took possession of the premises and forcibly excluded plaintiff therefrom by placing a padlock on said premises.
Plaintiff further alleges that at the time he was engaged in the construction business and occupied said premises as his place of business and kept therein tools of his trade, etc., to the possession of all of the property described in plaintiff's petition he alleged he was entitled, the same having a reasonable value of $7,400.64 at the time of said ouster.
Plaintiff further alleges that the acts of the defendant and her agent were malicious and were done with the deliberate intent to deprive plaintiff of his property and to injure him in his business by reason of which plaintiff claimed additional punitive damages in the sum of $5,000.00.
In the verified answer of the defendant above mentioned, she denied all of the allegations of the petition of plaintiff.
The plaintiff testified on his own behalf and recited that he had rented the property from defendant at a rental amounting to $55.00 per month and that he had used said premises for the purposes indicated in the petition. Plaintiff further testified that he had paid his rent for the month of October, 1960 but that in said month, after an absence from Oklahoma City, he went to the place, which he had rented, and found that the lock had been changed on the door and that he was unable to get into the property.
Plaintiff further testified that he had learned that during his absence from the city the defendant's son-in-law, Roy Hicks, had changed the locks whereupon plaintiff told the defendant that he desired to gain entry to the property but that said landlady refused to let him have a key to the door.
Plaintiff testified that he had further conversations with the defendant and that she stated she had authorized her son-in-law to remove his property and put the same in storage. Defendant continued to refuse to permit plaintiff to have his property, contending that he owed additional rent.
Plaintiff testified that he had made an inventory of the different items he had in the rented property, 'based upon a fair market value price as to what he had paid for the different items * * * from memory of what he had in the store * * * and that the total fair market value thereof was $7,400.00.' At this juncture in the testimony of plaintiff the Exhibit attached to the petition was offered in evidence and was, in the language of the court 'received for what it is worth.'
Some time thereafter, perhaps in the month of August, 1962, the plaintiff had further conversations with the defendant concerning his property and had asked to be permitted to see the property where stored, but the defendant refused. Thereafter the plaintiff testified that the fair market value of the property in question was $7,400.64.
Subsequently the court sustained the objection of the defendant to the evidence of the fair market value of the property and stated to the jury that it would be necessary for the plaintiff to deal with each item separately. The plaintiff then testified that his tools had a fair market value of $614.00, the wrecker $250.00, furniture $289.00 and some odd cents. After considerable discussion of the method of proof, the court stated:
'Now, for the Court's information and for the Court's and Jury's both, so we can understand it, you are claiming that these different items total $7,400.00 or not?'
to which counsel for plaintiff answered $7,400.64. Once again the plaintiff testified that the value of the property, which he lost, as listed in his inventory, was $7,400.00 and that he sought judgment for that sum and for punitive damages in the amount of $5,000.00.
On cross-examination defendant's counsel sought to elicit proof to the effect that the property alleged to have been converted did not total any such figure as that claimed.
The plaintiff introduced a witness by the name of Neal and from this witness elicited the evidence that his appraisal of the total value of the property involved was $6,480.81. It will be observed in this connection that this witness' valuation of the property was approximately $1,000.00 less than that testified to by the plaintiff.
At the conclusion of plaintiff's evidence the defendant interposed a motion for a directed verdict on the theory that the plaintiff having continued to claim the property, after the alleged conversion and the knowledge of the facts surrounding the alleged conversion, and to the possession of the property, estopped himself from recovering damages for the value of the property. The court overruled said motion allowing an exception and added that there was no proof as to punitive damages and sustained a demurrer thereto.
Defendant introduced as her first witness her daughter, Mrs. Hicks, who testified that the property involved was exposed and visible from...
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