Kimball v. Betts

• Decision Date: 09 January 1918
• Docket Number: 14200.
• Citation: 99 Wash. 348,169 P. 849
• Court: Washington Supreme Court
• Parties: KIMBALL et ux. v. BETTS et al.

169 P. 849

99 Wash. 348

KIMBALL et ux. v. BETTS et al.

No. 14200.

Supreme Court of Washington

January 9, 1918

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Fred Kimball and wife against Charles E. Betts and J. H Horning, copartners doing business under the firm name and style of Betts & Horning. Judgment for plaintiff, new trial denied, and defendants appeal. Affirmed.

T. W. Hammond, of Tacoma, for appellants.

Wright Kelleher & Allen, of Seattle, for respondents.

MAIN J.

The purpose of this action was to recover damages for the conversion of household effects which were sold at the instance of the defendants at a forced sale under void process. The cause was tried to the court and a jury resulting in a verdict for $493.92 in favor of the plaintiffs. A new trial was denied and judgment was entered on the verdict. The defendants appeal.

The facts necessary to an understanding of the questions presented upon the appeal may be summarized as follows: During the year 1912, and for some time prior thereto, the respondents resided on a ranch near Redondo, Wash. During the month of July of that year the respondent Fred M. Kimball went to Vancouver, B. C., where he secured employment. About two months later his wife, Carrie K. Kimball, preparatory to joining her husband in Vancouver, caused the household furniture and effects to be prepared for shipment by packing and wrapping. These were left in the house in which the respondents had been residing, and Mrs. Kimball departed to join her husband in Vancouver. Some months later Mrs. Kimball returned to Redondo, and, after conversing with Charles E. Betts, one of the appellants, concluded to have the furniture and household goods moved to the warehouse of the appellants. At this time the respondents were indebted to the appellants for groceries which had been furnished while the respondents were living near Redondo. Mrs. Kimball, after the goods were stored in the warehouse, returned to Vancouver. Some months later the appellants, not being able to hear from the respondents, and the grocery bill still being unpaid, brought an action, caused an attachment to be levied upon the goods stored in the warehouse, and, in due time, the goods were sold at public auction, and thereafter the sale was confirmed by judgment of the superior court.

For reasons which it is not here necessary to detail, the sale under the attachment process was void. Upon this appeal there is no controversy over that question. In this action the sole question litigated was the value of the goods which had been attached and sold at the instance of the appellants under the void process.

The first question is: What is the rule by which damages for the conversion of household goods and furniture, kept for use and not for sale, should be measured? The trial court, in effect, instructed the jury that household goods and effects, owned and kept for personal use, did not have a market value by which the actual damage to the owner, sustained by reason of their conversion, could be measured; and that the measure of damage in case of the conversion of such household goods was the value to the owner, based on his actual money loss, taking into consideration all the circumstances and conditions. The appellants claim that the giving of this instruction was error, and that the correct rule of damages is what the articles would bring if sold to a secondhand dealer when there is a market for secondhand goods. The great weight of authority, and as we think the better reason, supports the rule embodied in the instruction to the jury given by the trial court. Aufderheide v. Fulk (Ind. App.) 112 N.E. 399; Mathews v. Livingston, 86 Conn. 263, 85 A. 529, Ann. Cas. 1914A, 195; Barbrick v. White Sewing Mach. Co., 180 Mich. 535, 147 N.W. 493; Head v. Becklenberg, 116 Ill.App. 576; Denver, S. P. & P. R. R. Co. v. Frame, 6 Colo. 382; Barker v. S A. Lewis Storage & Transfer Co., 78 Conn. 198, 61 A. 363, 3 Ann. Cas. 889.

In the case first above cited a considerable number of authorities which support the rule, in addition to those here cited, are assembled. In the case last cited it is said:

'It is now generally recognized that wearing apparel in use, and household goods and effects owned and kept for personal use, are articles which cannot in any fair sense be said to be marketable and have a market value, or at least a market value which is fairly indicative of their real value to their owner, and of his loss by being deprived of them. So it has been frequently, and we think correctly, held that the amount of his recovery in the event of conversion ought not to be restricted to the price which could be realized by a sale in the market, but he should be allowed to recover the value to him based on his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property; not including, however, any sentimental or fanciful value he

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