Janssen v. Kohler, 6712.

• Citation: 299 N.W. 900,71 N.D. 247
• Decision Date: 25 September 1941
• Docket Number: No. 6712.,6712.
• Parties: JANSSEN v. KOHLER, Sheriff, et al.
• Court: United States State Supreme Court of North Dakota

71 N.D. 247

299 N.W. 900

JANSSEN

v.KOHLER, Sheriff, et al.

No. 6712.

Supreme Court of North Dakota.

Aug. 11, 1941.

Rehearing Denied Sept. 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, of Bismarck, for plaintiff-appellant.

George S. Register, State's Atty., of Bismarck, for defendants Kohler, Schmitz and Monsen.

W. J. Austin, of Bismarck, for State Bonding Fund.

BURKE, Judge.

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 Shafer 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 C.J. 133; Driscoll v. Allis-Chalmers Co., 144 Wis. 451, 129 N.W. 401;Gibson v. Adams Express Co., 187 Iowa 1259, 175 N.W. 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 on Evidence, 3d Ed., sec. 1789; 17 C.J. 1041; 25 C.J.S., Damages, § 159; Livingston v. Burroughs, 33 Mich. 511;Phelps v. Foot, 1 Conn. 387;Commonwealth v. Stout, 14 Ky.Law Rep. 576;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, “when an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all of the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity. This doctrine, though involving certain risks, is indispensable as a practical rule.” Wigmore on Evidence, 3d Ed., sec. 13, p. 300.

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 and that he called the sheriff and asked him to postpone action under the levy until he had an opportunity to talk to the attorney for the execution creditor. Neil Cameron testified that the plaintiff and Jones employed him to prepare Defendant's Exhibits A and B and a bill of sale of the “Smart Shop” by the plaintiff to Jones and that all three documents were signed in his presence. In the circumstances of this case it is unnecessary for us to consider whether or not the testimony adduced amounted to a disclosure of a confidential communication between attorney and client. Section 7924, C.L.1913, reads as follows: “If a person offers himself as a witness, that is to be deemed a consent to the examination, also, of an attorney, clergyman, priest, physician or surgeon on the same subject within the meaning of the first three subdivisions of the preceding section.”

[4] Plaintiff offered herself as a witness and testified with respect to the same subject matter, she did so prior to the examination of the Camerons and under the provisions of sec. 7924, supra, she thereby consented to their examination. There is therefore no merit in this assignment.

[5] Error is also assigned upon the refusal of the trial court to receive in evidence a memorandum made by Mr. Austin, the attorney of the defendant State Bonding Fund, of certain statements made to him by the defendants Kohler and Schmitz. The record shows that when the claim against the Bonding Fund was filed, Austin called Kohler and Schmitz to his office and there discussed with them all of the circumstances surrounding the levy against the “Smart Shop.” At the close of this conversation he called in his stenographer and, in the...