Farr v. Swigart

• Decision Date: 26 March 1896
• Docket Number: 619
• Citation: 44 P. 711,13 Utah 150
• Court: Utah Supreme Court
• Parties: MARTHA FARR, RESPONDENT, v. W. B. SWIGART, ET AL., APPELLANT

44 P. 711

13 Utah 150

MARTHA FARR, RESPONDENT, v. W. B. SWIGART, ET AL., APPELLANT

No. 619

Supreme Court of Utah

March 26, 1896

Appeal from the judgment of the district court of the Fourth judicial district, Territory of Utah, Hon. H. W. Smith Judge.

Action by Martha D. Farr against W. B. Swigart and the Consolidated Implement Company for a forcible and malicious trespass upon real estate, and for the conversion of personal property. Judgment for plaintiff. Defendants appeal.

Affirmed.

N Tanner, Jr., and E. M. Allison, for appellants.

The court erred in refusing to permit the witness Martha D. Farr to answer the following question upon cross-examination:

"Q. Mrs. Farr, I will ask you to state if in and about the time this horse was conveyed or given to you in the month of May 1891, if your husband did not convey a large amount of real estate to you, real estate outside of this?" and erred in sustaining the objection of the plaintiff's counsel to said question.

The defendants in propounding the above question to plaintiff were seeking to prove that Newton Farr had perpetrated an intentional fraud upon creditors (among whom was the defendant, the Consolidated Implement Company) by making voluntary conveyances of the horse and other property to his wife; and in order to prove the gift of the horse to have been fraudulent, fictitious and void, evidence of the voluntary conveyance of other property to her by him at about the same time, in pursuance of a general plan to defraud creditors, was admissible under all of the authorities. Butler v. Watkins, 13 Wall. 456; Eames v. Kaiser, 142 U.S. 488; Cary v. Houghtaling, 1 Hill 311; Amsden v. Manchester, 40 Barb. 158; Foster v. Hall, 12 Pick. 88, 99; Van Kirk v. Wilds, 11 Barb. 520; Fuller v. Acker, 1 Hill 473; Taylor v. Robinson, 2 Allen 562; Castle v. Bullard, 23 How. 172; Lincoln v. Claflin, 7 Wall. 132; Winchester v. Chester, 97 Mass. 140; S. C. 12 Allen 611; Fogg v. Griffin, 2 Allen 1.

The court erred in charging the jury that the plaintiff was entitled to recover exemplary or punitive damages if they found that the trespass was willful, malicious and perpetrated with a design to oppress the plaintiff.

The plaintiff herself testifies:

"I know of no feeling or ill will or malice that Mr. Swigart might have had against me; I never knew him to be an enemy of mine. So far as I know all that Mr. Swigart was doing upon that occasion was done in the performance of his official duty; that is what he said, and I know of nothing to the contrary. I know of no reason why Mr. Swigart should entertain any feeling of ill will towards me; I know of no reason why the Consolidated Implement Company or Mr. Burton, its manager, should entertain any feeling of ill will towards me; I know Mr. Burton personally, but not very well; I know him slightly; he was the manager of the Consolidated Implement Company at the time of the levy in Ogden; * * * I know of no reason why Mr. Burton, as manager of the Consolidated Implement Company, desired to injure me or why he should entertain any feeling of ill will towards me."

The defendant Swigart testified that he did not have any malice or ill will against the plaintiff; that he had never met her before making the levy upon the horses; that he entertained the best of feelings towards her; and that he went upon those premises in performance of an official duty as constable under the execution then in his hands, and actually believing at the time that he was levying upon the property of Newton Farr. And in addition thereto the court expressly charged the jury:

"If they were his (Newton Farr's) property, there is no claim that the officer did any more than was necessary to seize them, and that he had a right to do."

The instructions therefore upon the subject of punitive damages were given upon hypothetical statements of fact of which there was absolutely no evidence, which fact was practically conceded by the court below in that portion of the charge just quoted. The court ought not to have submitted that question to the jury. It is the province of the court to determine whether there is any evidence; and if there is a failure of evidence on any material fact or issue, that issue ought not to be submitted to the jury. 2 Thompson on Trials, sec. 2242; Grall v. Tower, 85 Mo. 249; U. S. v. Breitling, 20 How. 254; Chandler v. Van Roeder, 24 How. 227; Ins. Co. v. Baring, 20 Wall. 162; Clay Co. v. Harvey, 9 Utah 497; Snell v. Crowe, 3 Utah 26; Holt v. Pearson, 41 P. 561 (Utah) ; Min. Syndicate & Co. v. Fraser, 130 U.S. 611; Keyser v. Hitz, 133 U.S. 138; R. Co. v. Paine, 119 U.S. 561; Ins. Co. v. Baring, 20 Wall. 162; Rosenkranz v. Barker, Ill. 115, 331.

In the case of Tracey v. Swartwout, 10 Peters 80, the supreme court of the United States said:

"Where a ministerial officer acts in good faith, for an injury done, he is not liable to exemplary damages."

Indeed, the rule is not questioned, that a tort committed by mistake, in good faith, in the assertion of a supposed right, or without any actual wrong intention and without such recklessness or negligence as evinces malice or a conscious disregard of the rights of others, will not warrant the giving of punitive damages. 1 Suth. Dam. 724; Kulb v. O'Brien, 86 Ill. 210; Hamilton v. R. Co., 53 N.Y. 25; Allison v. Chandler, 11 Mich. 542.

E. T. Hulaniski and Rhodes & Tait, for respondent.

MINER, J. BARTCH, J., ZANE, C. J., concurring.

OPINION

MINER, J.:

This is an action against the defendant Swigart and the Consolidated Implement Company for an alleged forcible and malicious trespass, and for conversion of personal property. The first count in the complaint alleges "that defendants wrongfully, forcibly, and maliciously entered upon the plaintiff's premises, and by force broke open a lock on the door of the barn, and forcibly and maliciously took therefrom one horse of the plaintiff, valued at $ 250." The second cause of action is the same as the first, except that the horse taken is valued at $ 200. The answer of defendant Swigart denies all the allegations of the complaint and alleges that, at the time in question, he was a constable, and that he took the horses as such, by virtue of an execution regularly issued upon a judgment, rendered April 5, 1893, in favor of the defendant, the Consolidated Implement Company against Newton Farr, one of the judgment debtors, for $ 102.38 and costs, and that he sold said horses under and by virtue of said execution, and that the horses were the property of the said Newton Farr. The answer of the Consolidated Implement Company is a specific denial of the trespass and conversion in both causes of action. Upon the trial, a judgment was rendered in favor of the plaintiff on the first cause of action for $ 128, and $ 77 on the second cause of action, amounting to $ 205, and costs. This appeal is from an order overruling defendants' motion for a new trial, and from the judgment.

It appears from the evidence that the plaintiff was the wife of Newton Farr, and claimed the horses as her separate property, as well as the building from which they were taken by force, and against her objections and personal efforts to prevent it; that the horses were levied upon by defendant Swigart, as constable, to satisfy an execution against Newton Farr, as judgment debtor, on a judgment rendered April 5, 1893. The plaintiff testified that one of the horses, called "Johnny," was given her by her husband in May, 1891, and she had kept it ever since in her barn, adjoining the house which she owned, and had used it ever since; that the house and barn were conveyed to her by her husband, Newton Farr, in January, 1887, and she had lived there continually for seven years with her husband; that on May 24, 1893, she owned the horse called "Johnny," and another horse called "Dan;" that the defendant Swigart took the horses out of the plaintiff's barn by breaking the lock, and was notified at the time that the horses belonged to plaintiff, who tried to prevent him from taking them; that Johnny was valued at $ 250, and Dan at $ 150. Upon cross-examination, plaintiff testified that she had paid her husband nothing at the date of the deed for the house and barn, but that he had $ 1,000 in money of hers at the time; that her husband built the house and barn, and she paid him back for it prior to the commencement of this action; that she bought Dan at an auction sale in the fall of 1891, and paid her money for it, which she obtained from her father's estate; that she managed, kept, and used the horses, and permitted her husband to use them, and he acted as her agent in some matters she could not attend to. Thereupon the defendant asked the plaintiff the following questions: "Mrs. Farr, I will ask you to state if, on or about the time this house was conveyed or given to you, in the month of May, 1891, if your husband did not convey a large amount of real estate to you,--real estate outside of this?" This was objected to as being incompetent, irrelevant, and immaterial, and the objection was sustained, and an exception taken, which ruling defendants assign as error.

We do not think the question was proper. The inquiry was concerning a transaction which occurred several months before the debt in question was incurred, or judgment rendered, and at a time, so far as it appeared from the testimony, when Newton Farr was not indebted or in failing circumstances, and when he would have a perfect right to make a gift to his wife if he choose to do so. We recognize the rule that, "where the purchase or sale of property is in issue, evidence of other frauds of like character committed by the same parties at or near the same time, is admissible. Its admissibility is placed on the same ground that,...