Miller v. Condon
| Decision Date | 07 July 1947 |
| Docket Number | 4866 |
| Citation | 66 Ariz. 34,182 P.2d 105 |
| Parties | MILLER et al. v. CONDON et ux |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Maricopa County; Dudley W. Windes Judge.
Judgment affirmed.
Clark & Clark, of Phoenix, for appellants.
Moore Romley & Roca, of Phoenix, for appellees.
OPINION
Appellees were plaintiffs in the court below, and appellants were defendants. They will be so referred to herein. Plaintiffs sued upon two claims -- for damages for the alleged conversion of personal property consisting of household furniture and other personal effects, and for their alleged wrongful eviction from a home. The personal property was in the home when defendants took possession of the realty, and it was crated, moved, and stored at the cost of defendants under the circumstances hereafter related and in the process some items of the personal property were lost to plaintiffs, and substantial expenditures were entailed upon them before any of it was recovered. In addition to their actual losses they also sued for the recovery of punitive damages.
The verdict of the jury was in favor of plaintiffs in the sum of $ 6,417.20, and judgment was entered upon the verdict.
Though defendants established in their proofs the expenditure of a substantial sum in caring for the personal property after it was taken into possession by them, and asked recoupment therefor, this matter was withdrawn from the consideration of the jury. No instruction was given authorizing the award of exemplary damages.
Upon motion for new trial an order was made granting the motion upon the subject of damages only, conditioned upon the filing by plaintiffs of a remittit damna in the sum of $ 5,300. The remitter was filed, final judgment entered in the sum of $ 1,117.20, and new trial denied. Defendants have brought this appeal.
The principal assignment of error relied upon for a reversal is the giving of this instruction:
As a corollary to this assignment it is urged by appellant that it was error to fail to instruct the jury that it might consider the claim of set-off or recoupment for the outlay, as above mentioned, of defendants.
Appellants also urge, and quite independently of the assignments already referred to, that the amount of the verdict is so disproportionate to the recovery allowed by the court as to manifest that it was given under the influence of passion and prejudice, that the remitter does not cure it of this inherent vice, and that to allow the judgment to stand in effect denies to defendants the right to a trial by an impartial jury.
It is at once seen upon an inspection of the instruction complained of that the tortious conduct of defendants in taking possession of the real and personal property involved is assumed, and in effect no function was conceded to the jury other than to assess the damages of plaintiffs. As "out of the facts the law ariseth" it is necessary to know both what the facts and the state of the controversy with respect to them were at the close of the testimony.
The facts are simple, but to set them forth for informed appraisement requires a detailed statement; and reference is had to the case of Condon et ux. v. Arizona Housing Corp., 63 Ariz. 125, 160 P.2d 342, for details not here repeated.
On October 28, 1942, Arizona Housing Corporation was the owner of the premises designated as 2922 N. 7th Avenue, in Phoenix. On that day the owner rented the premises to plaintiffs from month to month and placed them in possession. A dispute arose between the owner and the tenants as to whether the terms of the tenancy included an option to purchase. This dispute reached the courts, and the determination was announced in the case above noticed. It has no particular relationship to the issues herein, but serves to make clear that whether as tenant or purchaser plaintiffs came lawfully into possession of the premises, which they occupied as their home. In this posture of affairs the legal owner, Arizona Housing Corporation, in February, 1943, sold its title to defendants. Very shortly the question arose between plaintiffs and defendants as to the extent of plaintiffs' interest in the premises, the plaintiffs claiming the right to purchase as an incident to their tenancy, and defendants insisting that the only rights of plaintiffs arose from their tenancy from month to month. At this phase of the controversy the parties through their counsel, as to whose powers as representatives no doubts have arisen, came to this understanding -- that the monthly payments originally agreed upon should be continued by plaintiff and received by defendants without prejudice to the claims of either. The effect of this, and the mutual understanding of it by the parties, was that upon the final adjudication the plaintiffs should have the benefit of their claim that the payments should be applied, if any thereof became applicable, upon the purchase price; and correspondingly the defendants should have the benefit of their claims that all payments should be considered as rent. The monthly payments accruing were punctually made, by check, and each check was accompanied with a written statement that it was given under that condition. The checks were received by defendants, and all of them were cashed with the exception of the one received by defendants on or soon after December 1, 1943. This check was for a time retained by defendants, but was returned to plaintiffs on the last day of the same month.
During June of 1943 plaintiffs left Arizona, and for the period of their absence placed a family named Kennedy in the occupancy of the premises as their tenants or sub-tenants. The Kennedys vacated the premises, and these were thereafter unoccupied except on occasions when caretakers in the service of plaintiffs were present. After the departure of the Kennedy family defendants instituted an action in unlawful detainer against Kennedy et ux., but a final determination of that statutory action was never reached. Counsel for plaintiffs appeared in that action for the defendants Kennedy, and in the course of the proceedings made the statement that the premises were vacant. Evidently in reliance upon that statement, though plaintiffs were not parties to that action and though the furniture of plaintiffs was still in the premises, and plaintiffs had delivered to defendants on or about the first of December the payment due on that day, whether for rent or as in part a purchase price payment, the defendants on December 22 entered the premises by the use of a key received with the deed of conveyance, and have...
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...not of itself lead to the conclusion that the verdict was based upon motives improper for the jury to entertain." Miller v. Condon, 66 Ariz. 34, 40, 182 P.2d 105, 109 (1947) quoted in Stallcup v. Rathbun, 76 Ariz. 63, 66, 258 P.2d 821, 823 (1953). "The test for whether the jury award is the......
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.... . . "If it appears manifest that the jury were actuated by prejudice or passion its verdict may not stand; * * * " Miller v. Condon, 66 Ariz. 34, 182 P.2d 105, 109. In Stallcup v. Rathbun, 76 Ariz. 63, 258 P.2d 821, 823, we reaffirmed the correct rule of law laid down in Southern Pacific ......
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...not of itself lead to the conclusion that the verdict was based upon motives improper for the jury to entertain * * *'. Miller v. Condon, 66 Ariz. 34, 182 P.2d 105, 109. The true test, the criterion that has withstood the rigors of one hundred forty-four years of passing time, is that laid ......
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...* * If it appears manifest that they the jury were actuated by prejudice or passion its verdict may not stand; * * *.' Miller v. Condon, 66 Ariz. 34, 182 P.2d 105, 109. In Stallcup v. Rathbun, 76 Ariz. 63, 258 P.2d 821, 823, we reaffirmed the correct rule of law laid down in Southern Pacifi......