Milburn v. Beach

• Decision Date: 31 March 1851
• Citation: Milburn v. Beach, 14 Mo. 104 (Mo. 1851)
• Court: Missouri Supreme Court
• Parties: WM. MILBURN ET AL. v. BEACH & EDDY.

14 Mo. 104

WM. MILBURN ET AL.

v.BEACH & EDDY.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST, LOUIS CIRCUIT COURT.

CROCKETT & KASSON, for Plaintiffs. 1st. The instruction of the court was wrong respecting smart money, and vindictive damages. Potter v. Lansing. 1 Johns. 222, 226; Smith v. Putney, 6 Shep. 87. And also in saying the jury could assess what “smart money” they pleased. It is too indefinite. Cleaveland v. Davis, 3 Mo. R. 331. This was an odious and injudicious phrase calculated to mislead and exasperate the jury. 2nd. The court erred in refusing the instructions asked by the defendants with respect to damages. Brannin v. Johnson, 19 Maine R. 361; Huntly v. Bacon, 15 Conn. R. 271, 225; Pacific Ins. Co. v. Carard, 1 Bald. 138; Nicoll v. Conard, 4 Peters, 291; Sedgwick on Damages, 550; Woodham v. Gelston, 1 Johns. 137. 3rd. The court presumed malice or wantonness, which the jury alone could do, with reference to exemplary damages, by taking certain facts in evidence and saying if they found those facts, doubly as facts, and not as proof of malice or wantonness, or other bad intent, they might assess what damages they pleased. It was for the jury to construe those acts. 4th. The damages were excessive. There is no evidence making the defendants liable as for a joint test. Guille v. Swan, 19 Johns. 381; Williams v. Sheldon, 10 Wend. 654. The very essence of exem plary damages is the wanton conduct, and bad intent, and court should have instructed the jury accordingly.

TODD, for Defendants. 1st. The instructions given by the court below covered the case and were correct. That, touching whom the jury should find guilty (if any) was correct. 1 Saund. R. 207, n. 2; 9 Pick. 555; 2 Johns. 382; 10 Wend. 654; that touching damages was correct. 12 Maine R. 474; 9 Pick. 156; 10 N. Hamp. R. 130; Sedgwick on Measure of Damages, 38 and following; 10 Peters, 80. The trespass was without evidence in palliation or justification. The property was taken out of the hands of the plaintiffs below, with notice of their right, exhibition of their title, with full warning of the wrong being done them and that if persevered in, the fullest damages would be required to indemnify them for their injury. The reply was a kind of defiance, and the property was taken, and the business of the store was thereby broken up. There was not even any evidence that Sherman owed the plaintiffs in the writs of attachment anything. This is necessary--2 Pick. 411. 2nd. The court did not err in refusing to give the instruction asked for by the defendants below, stating an hypothesis upon which vindictive damages should not be allowed. First, there was no evidence of any indebtedness from Sherman to the defendants below, and plaintiffs in the attachment suit against Sherman. Second, by parties taking and causing to be taken the property of third persons out of their actual possession under writs against another person, and subject to exemplary damages for gross negligence in such taking as well as for actual malice or evil design. It is oppression, vexation and harassment, and an abuse of the power of process, provided ordinary diligence to learn the truth would have prevented the taking. This was such a case and the defendants gave no evidence to show an honest belief in them against the truth of the claim and representations of the plaintiffs made before and at the time the property was taken; on the contrary, the sheriff did believe in the truth of the plaintiffs' claim and title, and so fully that he resolved not to touch them and thus take the risk of becoming liable to the plaintiffs in the attachment suits for all damages by reason of such refusal, until indemnified. This the sheriff made known to the plaintiffs in the attachment suits. Yet they indemnify him--direct him to take the goods, and then on trial give no evidence to palliate the act, it thereby appearing a wanton trespass. The court, therefore, did not err in refusing this instruction, and did right in instructing the jury that if they saw fit under all the circumstances, they might give exemplary damages. Third. The hypothesis of the instruction is put to the jury at large, and not confined to their belief thereof from the evidence, so that under it the jury would feel at liberty to judge of the truth of the hypothesis from any and other evidence and means besides that of the evidence given in the case. Fourth. The same is true in regard to the next instruction asked on behalf of Milburn and refused. Besides, as between joint trespassers the law does not recognize any grades of liability on the ground of one being more guilty than another. 9 Pick. 555.3 rd. The verdict was not excessive. It does not appear to contain any exemplary damages. It scarcely exceeds the value of the goods at selling prices and yet a period of more than four years has elapsed since the goods were taken. The sheriff was told if he took the goods, the selling prices would be required of him, and his reply was, that he did not care--or, to that effect--that he was indemnified and would take them. 4th. The court did not err in refusing to grant the motion for a new trial. Under all the circumstances of the case, the verdict is for a less amount than supposed by the plaintiffs below. It is for the right party, and nothing excessive appears in it. In such a case this court does not reverse. 8 Mo. R. 224, and cases there reported. Besides, this was a second application for a new trial by the same party, and none of the causes exist therefor, required by statute. See Rev. Stat. p. 830, § 3, and decisions therein; 4 Mo. R. 86, 87; 7 Mo. R. 57, 259.

BIRCH, J.

Sherman, a retail merchant in St. Louis, being largely indebted to Beach & Eddy (wholesalers in the same place), sold them his entire stock of goods, at cost prices, towards payment of said indebtedness. The defendants in error (plaintiffs below) thereupon took possession of the store, added some $700 worth of goods, and commenced carrying on the business through clerks placed there for the purpose. Five days after the sale, a number of firms in the city, claiming to be creditors of Sherman, sued out writs of attachment against him, upon the alleged ground that he had fraudulently disposed of his property. The deputy of Sheriff Milburn being directed by those parties to levy their attachment upon those goods, and having proceeded to the store to do so, was there told by one of the clerks that they belonged to Beach & Eddy, who had bought out Sherman, and that he had better go and see Mr. Eddy; this the deputy proceeded to do, and being told by him the same as at the store, asked him for the evidence thereof, alleging that, otherwise, he would proceed with his levy, under the writ. Eddy replied that he had no right either to touch the goods or to see the evidence, and refused, therefore, to exhibit it, until the deputy again remarking that he would then be obliged to levy; the bill of sale was at length produced to him. The deputy informed the attaching plaintiff of the facts, and very properly declined to levy unless the sheriff was indemnified. The plaintiffs, thereupon (each for himself), gave bond of indemnity, and having again directed the sheriff to levy, it was done accordingly. When the levy was made, Eddy was at the store, and again told the deputy he had better not take the goods, but that if he did so, he had better take an inventory of them. The deputy replying that he was indemnified, was ordered to take the goods and would do so. Refused at first, but afterwards consented, to take an inventory. Eddy told him that he took them at his own risk, and that he desired the inventory, as he should hold him accountable at retail prices, to which the deputy replied that that made no difference to him. He then commenced taking the goods--appropriating to each suit what was thought would be sufficient to cover the amount claimed. The goods being inventoried as taken down (the retail prices amounting to $2,370 28), were the same mentioned in the declaration.

For having thus taken these goods, the defendants in error commenced against them their action of trespass de bonis asportatis, including the sheriff as one of the defendants. The declaration counts amongst other things, for special damages in breaking up the store of the plaintiffs, by reason of the levy. Evidence was given on the trial showing, in addition to the facts above stated, that the business of the store was large and good; that this levy so broke up the assortment of the goods, and left so few, as to cause it to be closed; that the goods taken were of those bought by the plaintiffs of Sherman; that they were in good condition, and entirely suitable for the locality and trade of the store, which (being at the upper market), was with the farmers from the country; and that to one carrying on that store, the goods were suitable and worth their cost, comprising as these did a fresh renewal for the fall trade. It was further proven, that the retail prices in this store ranged from 12 1/2 to 33 per cent. on the cost prices.

This was the substance of the testimony of the clerks, some of whom had long been in...