Janssen v. Kohler
| Decision Date | 11 August 1941 |
| Docket Number | 6712 |
| Citation | 299 N.W. 900,71 N.D. 247 |
| Court | North Dakota Supreme Court |
Rehearing Denied September 25, 1941.
Syllabus by the Court.
1. Where evidence is properly admissible for a limited purpose although not admissible upon other issues in the case, it is not error to receive it.
2. Where exemplary damages are demanded and the motives upon which defendants acted are at issue, any evidence bearing upon motive, including the circumstances surrounding the transaction and the information upon which the defendants acted is properly admissible.
3. Where plaintiff offers herself as a witness, that is to be deemed a consent to the examination of her attorney upon the same subject. Sec. 7924, C.L. 1913.
4. Where one party's witness is allowed to refer to a memorandum for the purpose of refreshing his recollection while testifying and no foundation is laid to make the memorandum competent for any other purpose, and where the memorandum is not offered by the adverse party, it is not error to exclude it from evidence.
5. It is for the jury to determine the weight which shall be given to the uncontradicted testimony of a party to an action where there is in the case evidence of facts and circumstances which are inconsistent with its truth.
Appeal from District Court, Burleigh County; R. G. McFarland, Judge.
Action by Erna Janssen against J. A. Kohler, sheriff in and for Burleigh County, N.D., and others, to recover for the alleged unlawful seizure and conversion of property by the sheriff and his deputies, and oppression, fraud and malice on the part of the sheriff and his deputies. On a judgment in favor of the defendants for a dismissal of the action, the plaintiff moves for a new trial. From an order denying the motion for the new trial, the plaintiff appeals.
Order denying plaintiff's motion for a new trial affirmed.
Murray & Murray, for appellant.
As a general rule, with few exceptions, hearsay evidence is inadmissible. 22 CJ 199, § 167.
An admission is, however, to be considered and weighed like other evidence and cannot overcome clear proof that the fact is otherwise than admitted. Geddes v. McElroy, 171 Iowa 633, 154 NW 320; Waters v. Lakewood Utilities Co. 203 Mich. 166, 168 NW 1021.
The officer may enter upon the debtor's premises to levy upon his goods without committing a trespass, but he is not authorized to turn the debtor out and take exclusive possession of the premises. 23 CJ 435, § 223; Bayne v. Patterson, 40 Mich. 658.
23 CJ 921, § 1223; Buchanan v. Goeing, 3 Ill App 635; 23 CJ 466, § 281.
It is the duty of the court to instruct the jury on the legal effects of all facts disclosed by the evidence. 64 CJ 607, § 545.
Testimony may be admissible, if competent, relevant, and material for any purpose, even though it might be inadmissible for another purpose, provided that the court sufficiently limits its purpose by appropriate instructions to the jury. Wagner v. Atchison, T. & S.F.R. Co. 292 P 645.
Unchallenged possession and control of property is sufficient evidence of ownership, but is not conclusive. 23 CJ 57.
A verdict cannot rest on incompetent testimony. Continental Lumber Co. v. Ed Munshaw & Co. 77 Neb 456, 109 NW 760; Habeck v. Chicago N.W.R. Co. 146 Wis 645, 132 NW 760; Schmidbauer v. Omaha, C.B.S.R. Co. 104 Neb 250, 177 NW 336; St. Louis & S.F.R. Co. v. Akerd, 60 Okla 4, 159 P 344.
George S. Register, State's Attorney, and W. J. Austin, for respondents.
A condition or state of mind may be shown by the accompanying circumstances as well as by the direct testimony of the party himself. Proof of matters apparently collateral is admissible in many cases, especially upon issues regarding one's knowledge of a fact or his intention or purpose in doing or omitting to do an act. 20 Am Jur § 335.
Intent may be proved by one's words or inferred from his conduct. 20 Am Jur § 337; Nash v. Minnesota Title & Ins. Co. 163 Mass. 580.
Motive and intent being the essence of the inquiry where exemplary damages are sought, any evidence which fairly tends to their disclosure is admissible. McClurg v. Brenton, 123 Iowa 368, 98 NW 881.
Where a motion for a new trial is made in the lower court, the party making such motion is limited on appeal to a review of the grounds presented to the trial court. Zimbelman v. Lah, 61 ND 65, 237 NW 207.
On September 15, 1939, the defendant, J. A. Kohler, sheriff of Burleigh county, by his deputy, the defendant Schmitz, levied upon part of a stock of merchandise located in a store building at 408 Broadway in Bismarck, which store was known as "The Smart Shop." The levy was made pursuant to an execution issued by the clerk of the district court of Cass county upon a judgment rendered in said court against one W. L. Jones. The property was levied upon as the property of Jones. On September 18, 1939, the plaintiff, Erna Janssen, filed with the sheriff a third party claim in which she asserted that she was the owner of the seized property and made a demand for its return. Thereafter the sheriff sold the property at execution sale and the proceeds of the sale were applied in partial payment of the judgment against Jones. Plaintiff thereupon filed a claim against the State Bonding Fund upon the sheriff's bond. The claim was not allowed and plaintiff commenced this action against the sheriff, his deputies and the State Bonding Fund alleging in her complaint, ownership of the property seized, its unlawful seizure and conversion by the sheriff and his deputies, oppression, fraud and malice upon the part of the sheriff and his deputies and demanding actual damages in the sum of $15,000 and punitive damages in the sum of $ 5,000. The action was tried in the District Court of Burleigh county and the trial resulted in a verdict and judgment in favor of the defendants for the dismissal of the action. Plaintiff made a motion for a new trial which was denied by the trial court and the case is here upon an appeal from the order denying the motion for a new trial.
In her motion for a new trial plaintiff sets forth fifty-seven specifications of error. Upon this appeal these specifications are grouped under four general assignments.
1. Erroneous admission of hearsay testimony upon the issue of ownership of the property.
2. Erroneous admission of testimony as to the confidential communications made by the plaintiff to her attorneys.
3. Erroneous exclusion of testimony as to admissions made by the sheriff and his deputies to the attorney for their codefendant the State Bonding Fund.
4. That the verdict is against the weight of the evidence.
The first general assignment relates to the testimony of the defendant Schmitz and of Mr. Shafer, the attorney for the execution creditor, as to the conversation which took place between them at the time the execution was handed to the sheriff. Both witnesses testified, over a general objection, that at that time Shafter stated to Schmitz that Mr. Jones was the owner of "The Smart Shop," having recently acquired it, that he (Shafer) had seen two documents pertaining to the ownership of the store which were in the possession of a Mr. Foster and that Erna Janssen had stated to Foster and to a Mr. McLaughlin that she had transferred her interest in the store to Jones. This testimony is clearly hearsay as to the plaintiff and was not admissible upon the issue of ownership of the property. If, however, the testimony was properly admissible for any purpose, it was not error to receive it. 64 CJ 133; Driscoll v. Allis-Chalmers Co. 144 Wis 451, 129 NW 401; Gibson v. Adams Exp. Co. 187 Iowa 1259, 175 NW 331; Wilcox v. Bear, 140 Wash 39, 248 P 58. In this action plaintiff demanded punitive as well as actual damages. She alleged that the sheriff and his deputies had been actuated by malice. Thus the nature of the intent and motive of the sheriff and his deputies was one of the principal issues in the case. Any evidence, therefore, bearing on motive, including the circumstances surrounding the transaction and the information upon which the defendants acted was properly admissible. Wigmore, Evidence, 3d ed § 1789; 17 CJ 1041; Livingstone v. Burroughs, 33 Mich. 511; Phelps v. Foot, 1 Conn 387; Com. v. Stout, 14 Ky L Rep 576 (abstract); Friend v. Hamill, 34 Md 298. In the brief plaintiff argues that the defendants, under the guise of offering testimony upon the issue as to motive, "built up an illegal defense to the whole case." It is true that the testimony of Shafer and Schmitz was susceptible of being considered upon the issue of title, but that fact does not make its admission error. As stated by Professor Wigmore, Wigmore, Evidence, 3d ed p 300, § 13.
The second assignment of error relates to the admission of the testimony of the witnesses Scott Cameron and Neil Cameron. Each of these witnesses was permitted to testify over the objection that the questions called for the disclosure of confidential communications between attorney and client. Scott Cameron's testimony is simply that he was employed by the plaintiff after the sheriff had served the notice of levy...
To continue reading
Request your trial