Meeker v. Howard, 938--I

• Decision Date: 26 June 1972
• Docket Number: No. 938--I,938--I
• Citation: 499 P.2d 53,7 Wn.App. 169
• Parties: Paul E. MEEKER, Appellant, v. Duane HOWARD and Jane Doe Howard, his wife, et al., Respondents.
• Court: Washington Court of Appeals

Page 169

7 Wn.App. 169

499 P.2d 53

Paul E. MEEKER, Appellant, v. Duane HOWARD and Jane Doe Howard, his wife, et al., Respondents.

No. 938--I.

Court of Appeals of Washington, Division 1, Panel One.

June 26, 1972.

Rehearing Denied July 17, 1972.

Review Denied Aug. 18, 1972.

Rutherford, Kargianis & Austin, Russell A. Austin, Jr., Seattle, for appellant.

Siderius, Lonergan & Crowley, Patrick W. Crowley, Seattle, for respondents.

HOROWITZ, Chief Judge.

Plaintiff, Paul E. Meeker, sued the defendants Howard for conversion by defendant husband of various items of personal property. Plaintiff recovered judgment. He appeals, claiming that the amount of the judgment is inadequate.

The evidence shows the following. We shall refer to the respondents as defendant. In June 1969 plaintiff rented an apartment from defendant under a lease terminable on 3 days' written notice. Plaintiff became delinquent in two monthly rental payments in the total sum of $358. On October 1, 1969, defendant, without giving the 3-day required notice and in the absence of the plaintiff, entered his apartment and removed plaintiff's personal property therefrom. He then installed a so-called 'clamshell' on the doorknob to prevent plaintiff's entry. Defendant removed the personal property, including plaintiff's tools, to an unoccupied apartment where it remained under his control until the time of trial.

On October 6, 1969, plaintiff was offered another job as a motorcycle mechanic. The job required that he furnish his own tools. Plaintiff was unable to accept the job because defendant had possession of his tools and refused to surrender them until plaintiff paid the delinquent rent claimed.

The trial court found the defendant had obtained illegal possession of plaintiff's personal property, including his tools, because he failed to give the required 3-day notice of termination of tenancy under the lease. He granted judgment for damages by way of conversion in the sum of $500. He held further, however, that defendant was entitled to a $250 setoff, representing $75 for unpaid rent (after giving plaintiff credit for sums subsequently paid on account of rental owing) and $175 for apartment cleanup costs as provided in the lease not compensated by plaintiff's $75 damage deposit.

Plaintiff contends on appeal that $500 is inadequate and that the offsetting damages should have been limited to $75. He also claims that the court improperly denied him damages for lost earnings caused by defendant's conversion of plaintiff's tools. The controlling question is whether substantial evidence supports the findings. We find the evidence sufficient and affirm the judgment.

The trial court's fact-finding function and our function are dissimilar. We may not substitute our own findings for those of the trial court if its findings are supported by substantial evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). Questions of witness credibility are peculiarly for the trial court, not for this court. This rule applies even though the testimony of a witness is uncontradicted. However, uncontradicted testimony is not to be arbitrarily disbelieved. There must be a reason for doing so. See Cochran v. Cochran, 2 Wash.App. 514, 468 P.2d 729 (1970). Thus, the uncontradicted testimony of the witness may disclose discrepancies or inconsistencies, or may be inherently improbable. In the case of expert testimony by the owner or other witness, the court may consider the qualifications of the person testifying to be minimal, or may consider the reasons he gives in support of his opinions to be inadequate.

In Swenson v. Lowe, 5 Wash.App. 186, 486 P.2d 1120 (1971), we upheld the trial court's refusal to accept in its entirety the uncontradicted testimony of an expert witness as to value. The court said:

The trial court may well have believed that some of the deficiencies did not exist. As to the 'deficiencies' for which the court made an allowance, in each case the amount allowed was substantially less than Mr. Ceis estimated the cost of repair to be. The trial court could have believed that Mr. Ceis did not give sufficient reasons for his estimates on various claimed deficiencies to be persuasive; or the trial court may have been of the opinion that the reasonable cost at the date of trial in May of 1969 would not prove the reasonable cost of repair either at the date when performance of the contract reasonably should have been completed, or at the date when the contractor ceased performance on August 15, 1967. . . . The credibility of expert testimony dealing with cost estimates and their reasonableness, even though uncontradicted, is for the trier of the facts. See State v. Melrose, 2 Wash.App. 824, 470 P.2d 552 (1970); Rognrust v. Seto, Supra (2 Wash.App. 215, 467 P.2d 204 (1970)); Annot., 62 A.L.R.2d 1191 (1958). The court might have declined to credit the testimony at all. Nevertheless, he made offsetting allowances in the sum of $625 for items which are detailed in finding 6. Defendants complain that the allowances were insufficient. However, the court impliedly found that Mr. Ceis' testimony furnished the court with an inadequate basis for a greater allowance. Such an implied finding was within the trial court's power to make.

5 Wash.App. at 191--192, 486 P.2d at 1124. See Rognrust v. Seto, 2 Wash.App. 215, 467 P.2d 204 (1970); Riblet v. Spokane-Portland Cement Co., 45 Wash.2d 346, 274 P.2d 574 (1954).

In the instant case, exhibit 8 admitted in evidence itemizes the personal property taken by defendant. Plaintiff, as an owner, testified to the value of these items. He made no showing that he had investigated the fair market value of the items as of the date of conversion. In certain instances he gave no reasons to support his opinions, or the reasons he gave could have been properly found by the court to be inadequate. His opinions on value were little more than estimates. Thus, he was unable to testify concerning the cost of any of the items taken other than the cost figure of $350 with respect to one motorcycle. He did not even offer photographs of the items taken, although these could have been supplied by resort to CR 34. Under the circumstances, we cannot find that the court exceeded his powers as a trial judge in determining that at best the evidence was sufficient merely to show that the property taken had a fair cash market value of $500.

Plaintiff contends the court erroneously held as a matter of law that lost wages, even if proved, are not recoverable in an action for conversion of tools needed to obtain such wages. He cites C. McCormick, Damages § 123 (1935). Indeed, he assigns error to the entry of the portion of conclusion of law 2 reading:

The damage for taking and retaining a man's tools are the reasonable value of the tools, and not the consequential loss of income flowing therefrom.

The record in the instant case makes it unnecessary to determine whether the quoted portion of conclusion 2 is a correct statement of the law.

Plaintiff had the burden of proving that the conversion of the tools proximately caused the loss of the wages claimed. He was required to obtain a finding to that effect. Failure to obtain such a finding would ordinarily mean that no such fact had been proved. McCutcheon v. Brownfield, 2 Wash.App. 348, 467...