Kukowski v. Emerson-Brantingham Implement Co.
| Decision Date | 08 October 1919 |
| Docket Number | 1915 |
| Citation | 175 N.W. 706,43 N.D. 333 |
| Court | North Dakota Supreme Court |
Appeal from District Court of Golden Valley County, Crawford, J.
Reversed in part and affirmed in part.
Judgment reversed as to the appellant Emerson-Brantingham Implement Company, and affirmed as to appellants Madison and Northwestern Trust Company.
Lawrence & Murphy, for appellant Emerson-Brantingham Implement Company.
There is no statutory liability on the part of the attaching auditor for the safe-keeping of the property attached. Comp Laws 1913, §§ 4431, 7540, 7542, 7543, 7553, 7559.
"The sheriff must deliver over to the defendant or to the person entitled thereto, on reasonable demand, all of the attached personal property remaining in his hands." Comp. Laws 1913, § 7562.
Where plaintiff's judgment is satisfied, the sheriff must surrender the property to the defendant. Comp. Laws 1913 § 7563.
This appellant is not liable jointly with the sheriff for his failure to safely keep the property held under the warrant of attachment. 99 Am. Dec. 554; Blanchard v. Brown, 3 N.W. 248; Michaels v. Storke, 5 N.W. 1036.
"An attaching creditor cannot be held liable for the wrongful acts of the sheriff not shown to have been done at his direction." Webb v. Van Vleet-Mansfield Drug Co. 120 Ark. 236, 179 S.W. 357; Pittsburg, J. E. R Co. v. Wakefield Hardware Co. 143 N.C. 54, 55 S.E. 422; Munns v. Loveland, 49 P. 743; Abbott v. Kimball (Vt.) 47 Am. Dec. 710; Hyde v. Cooper, 26 Vt. 558.
If an officer, in the discharge of his official duty, commits a trespass, and the party does not control the officer in any way, then the party cannot be implicated in the original wrong. Abbott v. Kimball (Vt.) 47 Am. Dec. 710; Burt v. Decker (Iowa) 19 N.W. 874; Sparkman v Swift, 81 Ala. 231, 8 So. 160.
One who places in the hands of an officer a valid writ, without directions as to the manner of its service, will not be liable for torts committed by the latter while engaged in the execution thereof; but where he, with knowledge of the facts, advises an abuse of the process of the court, such as a trespass against the person or property of another, he will be regarded as a wrongdoer from the beginning. Taylor v. Ryan, 15 Neb. 573, 19 N.W. 475; Hyde v. Cooper, 26 Vt. 552; Murray v. Mace (Neb.) 59 N.W. 388; Supply Co. v. Hunter (Okla.) 148 P. 83; Adams v. Hotel Co. (Wis.) 82 N.W. 703; Teel v. Miles (Neb.) 71 N.W. 296; Cole v. Edwards (Neb. ) 72 N.W. 1046.
R. F. Gallagher, for appellant John J. Madison.
"A sheriff is held to the same degree of prudence, vigilance, and care with respect to property under seizure and in his custody as a careful and prudent man would be likely to exercise over his own property; but he is not liable as an insurer." 35 Cyc. 1670; Creswell v. Burt, 16 N.W. 1730; 106 Am. St. Rep. 394.
It is generally held that the degree of care required of a sheriff in respect to property under attachment is the same as that of a bailee. Standard Wine Co. v. Chipman, 97 N.W. 679; 6 C. J. 1160, 1161.
Whether the bailee has exercised the care is a question for the jury. 6 C. J. 63.
Negligence in a particular case is generally a matter for the jury to determine, and is always so when the measure of duty is ordinary and reasonable care. Williams v. Sleepy Hollow Min. Co. 37 Colo. 62, 7 L.R.A.(N.S.) 1170, 86 P. 337; Cunningham v. Union R. Co. 4 Utah, 206, 7 P. 795; West Chester, etc., R. R. Co. v. McElwell, 67 Pa. 315.
A question of negligence cannot be taken from the jury, although the facts are not in dispute, if they are such that from them different minds might draw different conclusions. Williams v. Sleepy Hollow Min. Co. 7 L.R.A.(N.S.) 1170, 86 P. 337; Williams v. Sleepy Hollow Min. Co. 35 L.R.A.(N.S.) 350, 116 P. 786; Winona v. Botzet, 23 L.R.A.(N.S.) 204; Jackson v. Grand Forks, 45 L.R.A.(N.S.) 75; Farmers Mercantile Co. v. N. P. R. Co. 146 N.W. 550; Lane v. Lenfest (Minn.) 42 N.W. 84.
Where a jury returns a special verdict alone, unaccompanied by a general verdict, defendant's failure to object that no question was submitted to them as to whether or not defendant was negligent and as to whether the accident or damage was caused by such negligence, is not a waiver of his right to afterwards attack the special verdict because of its failure to pass on all material and controverted questions. Sherman v. Menominee River Lumber Co. 45 N.W. 1079; Kelly v. R. Co. (Wis.) 9 N.W. 861; Ottell v. Ry. Co. (Wis.) 61 N.W. 289; Dugal v. Chippewa Falls, 77 N.W. 878.
It is the duty of the trial court to frame the special verdict, and to include therein every material issue raised by the pleadings and evidence.
A judgment cannot be entered upon a verdict which fails to do this, if the immediate issue might have been so resolved as to prevent such judgment. Strasser v. Goldberg (Wis.) 98 N.W. 554; Ortell v. Ry. Co. (Wis.) 61 N.W. 289; Hildman v. Phillips, 82 N.W. 566; Sherman v. Lumber Co. 45 N.W. 1079; McFetridge v. Insurance Co. 62 N.W. 938; Dugal v. Chippewa Falls, 77 N.W. 878.
Where alleged negligence of the defendant is the ground upon which plaintiff seeks to recover, the question of the proximate cause of the injury or damage complained of must be fairly and substantially answered by the special verdict, or it will not support a judgment. Jewel v. Railway Co. 54 Wis. 618, 12 N.W. 83; Kerkhoff v. Paper Co. 62 Wis. 674, 32 N.W. 766; Atkinson v. Transp. Co. 60 Wis. 156, 18 N.W. 764.
The failure to submit the question of negligence and the proximate cause of the damage to the tractor in this case amounted to a withdrawal of the same from the consideration of the jury.
"The case should not be drawn from the jury unless the conclusion follows as a matter of law from the evidence, that no other conclusion can be had upon any view which could be properly taken of the facts which the evidence tends to establish." 145 U.S. 593, 12 S.Ct. 905; Elliott v. Railway Co. 150 U.S. 245, 14 S.Ct. 85; Lewis v. Prien (Wis.) 73 N.W. 654.
Madison cannot be held liable for the damage that accrued after Smith received notice of the attachment and location of the tractor. State v. Ruth, 9 S.D. 84, 68 N.W. 189; Howley v. Scott, 123 Minn. 159, 51 L.R.A.(N.S.) 137, 143 N.W. 257; Wood v. Lowdin, 49 P. 133.
Where a bailee accounts for his failure to deliver goods by showing their loss or destruction by fire or theft, and these facts appear or are proved with reasonable certainty, the burden is upon the bailor to prove that, notwithstanding such loss, the same was due to the negligence of the bailee, and the burden of proof never shifts from him. Clafin v. Meyer, 31 Am. Rep. 467; Stone v. Case, 43 L.R.A.(N.S.) 1169 and note, 124 P. 960; Yazoo, etc. R. Co. v. Hughes, 22 L.R.A.(N.S.) 975 and note; Standard, etc., Ins. Co. v. Trades Exp. Co. 148 P. 1019; Firemen Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N.W. 507; Ann. Cas. 1913E, p. 823.
Bangs, Hamilton, & Bangs and W. J. Mayer, for appellants Madison and Northwestern Trust Company.
However clear and undisputed the evidence upon the issues is found to be, the court cannot render judgment on a special verdict making such findings, without usurping a part of the functions of the jury; thereby infringing a right guaranteed by the Constitution and the laws. Moore v. Moore, 67 Tex. 293, 3 S.W. 285; Hodges v. Easton, 106 U.S. 408.
The facts to be found in a special verdict are the issuable facts presented by the pleadings. Phoenix Water Co. v. Fletcher, 23 Cal. 481; Chicago, St. L. & P. R. Co. v. Berger, 124 Ind. 275, 24 N.E. 981; Neutz v. Coal & Coke Co. 139 Ind. 411, 38 N.W. 324.
It is the duty of the trial court to frame the special verdict and include therein each material issue raised by the pleadings and evidence. Orttel v. R. R. Co. 89 Wis. 127, 61 N.W. 289.
It is error to fail to submit an issue made by the pleadings. Kenyon v. Kenyon, 72 Wis. 234, 39 N.W. 361; 22 Enc. Pl. & Pr. p. 981.
"It was the province of the jury to pass upon the issues of fact, and it was the right of the defendants, secured by the Constitution of the United States, to have them do so." U. S. Const. article 7 of Amendments; N.D. Const. § 7.
"Where it is a disputed question whether the injuries were the proximate result of the negligence complained of, the special verdict must find specially both negligence and that such negligence was the proximate cause of the injuries, or it is fatally defective." McGowan v. R. R. Co. 91 Wis. 147, 64 N.W. 891; Kucera v. Lumber Co. 91 Wis. 637, 65 N.W. 374; Deisen Ricter v. Kraus-Merkel Malting Co. 92 Wis. 164, 66 N.W. 112; Sheridan v. Bigelow, 93 Wis. 426, 67 N.W. 732 and cases cited; Groth v. Thomann, 110 Wis. 488, 86 N.W. 178; Hallum v. Omro (Wis.) 99 N.W. 1051; Jamestown v. Irving (Wis.) 99 N.W. 346.
A sheriff who seizes property under a writ of attachment has a special property therein, and by virtue of this special property he may bring trover for conversion, or sue a receiptor in assumpsit or trover, or may resort to replevin to restore the same to his possession. 20 Enc. Pl. & Pr. 113-115.
"Where the duties are such as are owed by the officer to the particular individual with whom he deals, a breach of the duty gives rise to a corresponding liability to such person only." 25 Enc. Law, 523, 723, 724.
"To charge the sureties in the officer's bond, the act complained of must either have been one which he rightfully might have done as an officer, or one which was actually done by him as an officer under a claim of right to do so, as such." 25 Enc. Law, 724.
"The duration of the surety's liability is ordinarily coextensive with the officer's official tenure of office."...
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