McCormick Harvesting Mach. Co. v. Drake

• Decision Date: 14 May 1897
• Citation: 48 P. 944,5 Kan.App. 882
• Parties: McCORMICK HARVESTING MACH. CO. v. DRAKE.
• Court: Kansas Court of Appeals

48 P. 944

5 Kan.App. 882

McCORMICK HARVESTING MACH. CO. v. DRAKE.

Court of Appeals of Kansas, Southern Department, Central Division

May 14, 1897

Syllabus

1. The evidence in this case examined, and the damages awarded found to be excessive. Excess indicated, allowed to be remitted and judgment entered for the remainder.

2. New trial granted if the mandate of this court is not complied with within 30 days after the same is filed in the trial court.

Error from court of common pleas, Sedgwick county; Jacob M Balderston, Judge.

Action by E. J. Drake against the McCormick Harvesting Machine Company. Judgment for plaintiff. Defendant brings error. Reversed.

Holmes & Haymaker, for plaintiff in error.

Amidon & Conly, for defendant in error.

OPINION

SCHOONOVER, J.

This was an action in replevin brought by E. J. Drake, defendant in error, against the plaintiff in error, to recover certain personal property, and damages for its unlawful detention. Trial by jury. Verdict for defendant in error for the possession of the property, and for $150 damages. Motion for a new trial overruled, and the plaintiff in error brings the case here for review.

The errors complained of are that: "The court erred in overruling the motion of the plaintiff in error for a new trial, in this: that the damages given in the verdict appeared to be excessive, and to have been given under the influence of passion and prejudice, and that the verdict is not sustained by sufficient evidence." We have carefully examined the pleadings and record, and can find no such elements of fraud, malice, gross negligence, or oppression as would entitle the plaintiff below to exemplary or vindictive damages. The value of the property replevied was $750. No claim is made for interest on the value of the property, or any portion of it, during the time it was detained. The principal items of personal property replevied were work horses and farm implements, and had a usable value. The court was very liberal in the admission of testimony tending to prove the value of the use of the property, or the damage plaintiff below sustained by reason of the detention of each item, which in the aggregate amounts to $94. Plaintiff below testified to the loss of one kit of tools. There is no evidence as to the value of their use, or their value at the time they were taken. In the replevin affidavit the value of the kit of tools is fixed at $5. With this...