State ex rel. Robertson v. Hope

• Decision Date: 13 March 1894
• Parties: State ex rel. Robertson, v. Hope et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 893

121 Mo. 34

State ex rel. Robertson, v. Hope et al., Appellants

Supreme Court of Missouri, Second Division

March 13, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Gage Ladd & Small for appellants.

(1) The question of interest should have been left to the jury under Revised Statutes, 1889, section 4430, authorizing allowance of interest, if the jury shall think fit to allow it. See Higgins v. Sargent, 2 B. & C. 384. Interest is the creature of the statute, and in no case not provided for by statute can it be recovered. Pekin v. Reynolds, 31 Ill. 529; Chicago v. Allcock, 86 Ill. 384; Railroad v. Conway, 8 Col. 1; State, etc., v. Harrington, 44 Mo.App. 301; Randall v. Greenhood, 3 Mont. 506; Supervisors v. Klein, 51 Miss. 808; Lincoln v Claflin, 7 Wall. 132; The Scotland, 118 U.S. 507; The Alaska, 44 F. 498; Railroad v. Balthaser, 126 Pa St. 1. The matter became a subject of statutory enactment in England in 1833. 3 and 4 William IV. ch. 42, sec. 29. The earliest legislation on the subject in Missouri appears in 1845. Revised Statutes, 1845, p. 834. Under section 4430, Revised Statutes, 1889, the jury in their discretion were to allow interest. See 18 Eq. Cases, L. R. 154; Uhe v. Railroad, 54 N.W. 601. (2) The error in the instruction as to interest can not be cured by a remittitur. Schilling v. Speck, 26 Mo. 487; Railroad v. Estill, 147 U.S. 592. (3) The damages were excessive. There is no legal evidence of value except that introduced by the defendants. Were it not for that, there would be a "failure of proof." Allen v. Kennedy, 91 Mo. 324; Rose v. Taunton, 119 Mass. 99; Archer v. Schaeper, 25 Mo.App. 1; Schnaider v. Niederweiser, 28 Mo.App. 233. "Damages adjudged must be supported by legal evidence. If they are not thus supported, they can not stand." Blackwell v. Adams, 28 Mo.App. 63. (4) The verdict is against the evidence and the instructions of the court, and for that reason the judgment ought to be reversed.

Karnes & Krauthoff for respondent.

(1) Plaintiff was entitled to interest. Polk v. Allen, 19 Mo. 467; Walker v. Borland, 21 Mo. 289; Woodburn v. Cogdal, 39 Mo. 222; Miller v. Whitson, 40 Mo. 97; Spencer v. Evans, 57 Mo. 427; Charles v. Railroad, 58 Mo. 458; Watson v. Harmon, 85 Mo. 443; Stevens v. Springer, 27 Mo.App. 375. (2) It is not the law of this state that interest can be allowed only when specially provided by statute. Gray v. Packet Co., 64 Mo. 47; Dunn v. Railroad, 68 Mo. 268; Arthur v. Wheeler, 12 Mo.App. 335; McBeth v. Craddock, 28 Mo.App. 380; Webster v. Railroad, 22 S.W. 474; Sedgwick on Damages [8 Ed.], sec. 316; Wilson v. Troy, 135 N.Y. 96. It is where the defendant receives no pecuniary benefit by the wrong that interest is not allowable. Kenney v. Railroad, 63 Mo. 99; Marshall v. Schneaker, 63 Mo. 308; Railroad v. Estill, 147 U.S. 591; Arpin v. Burch, 68 Wis. 619; Robinson v. Barnes, 48 Me. 190. (3) The plaintiff is entitled to remit the interest in this court. Warder v. Henry, 23 S.W. 776; McCullough v. Ins. Co., 113 Mo. 606; Furnish v. Railroad, 102 Mo. 438; Keen v. Schnedler, 92 Mo. 516; Smith v. Railroad, 92 Mo. 359; Kimes v. Railroad, 85 Mo. 611; Clark v. Bullock, 65 Mo. 535; Miller v. Hardin, 64 Mo. 545; Western v. Kribben, 48 Mo. 37; Railroad v. Estill, 147 U.S. 591; Anchor Milling Co. v. Walsh, 24 Mo.App. 97; Lower v. Harris, 57 F. 368; Bank v. Ashley, 2 Pet. 327; Railroad v. Harmon's Adm'r, 147 U.S. 571. (4) This case has been in court eleven years; has been tried three times in the circuit court in three separate counties, and is now here on the third appeal. The merits of the controversy have been settled, and a reversal now ought not to be allowed, unless positive error has been committed. (5) Where as in this case the evidence tends to establish the issues the court will not pass on its sufficiency. Moore v. Railroad, 73 Mo. 438; Grove v. Kansas City, 75 Mo. 672; Fulkerson v. Mitchell, 82 Mo. 13; Baum v. Fryrear, 85 Mo. 154; Bank v. York, 89 Mo. 369; State v. Hert; 89 Mo. 590; Caruth v. Richeson, 96 Mo. 186; City of St. Louis v. Lanigan, 97 Mo. 175; Harrison Wire Co. v. Hall, 97 Mo. 289; Krider v. Milner, 99 Mo. 145; Gutridge v. Railroad, 105 Mo. 525; Pitts v. Sheriff, 108 Mo. 108; Blanton v. Dold, 109 Mo. 64; State v. Turner, 110 Mo. 196; Godman v. Simmons, 113 Mo. 122; Johnson v. Barnes, 23 Mo.App. 546; Costigan v. Co., 38 Mo. 219; Leesey v. Boekhoff, 38 Mo.App. 445.

OPINION

Burgess, J.

This is a suit in the name of the state at the relation of John M. Robertson, against the defendant Hope and his sureties, on his official bond as sheriff of Jackson county, Missouri. The case has been twice before this court, and will be found reported in 88 Mo. 430, and 102 Mo. 410, wherein a full and complete statement of all the facts may be found up to and including the second trial. On the first trial had in Jackson county, there was a verdict for the defendants. On the second trial, which was before a jury, in Ray county, there was a verdict for plaintiff for $ 17.430.20. On a third trial, had before a jury, in Saline county, plaintiff recovered a verdict and judgment for the sum of $ 27,861.21, and defendants appealed.

There was no material change in the facts as disclosed from the evidence from the time of the first trial to the last, while in so far as the questions at issue had been passed upon in the two opinions delivered, the last trial was in compliance therewith. Defendants assail plaintiff's first instruction, which is as follows:

"1. If the jury believe from the evidence that Sam Schneider was indebted to said J. M. Robertson in the amount of the several notes read in evidence, and that for the purpose of paying said notes, on July 12, 1882, he conveyed to said Robertson the stock of liquors, cigars, fixtures, etc., in the store of said Schneider, at number 407 Delaware street, and delivered him possession thereof, and that the said property so conveyed was no more than was reasonably necessary to pay said notes, then the said property became the property of said Robertson. And if you believe that afterwards, the defendant Hope, as sheriff of Jackson county, under and by virtue of said writs of attachment against said Schneider, levied upon and took said property or any part thereof, then you will find in this action for the plaintiff, and assess his damages at the value of the property so taken, together with interest at the rate of six per cent. per annum from the twenty-seventh day of July, 1882, the date of the bringing this suit."

The objection urged against the instruction is that the question of interest should have been left to the discretion of the jury, instead of being told that if they found for plaintiff, they would assess his damages at the value of the property taken, together with interest at the rate of six per cent. per annum from the twenty-seventh day of July, 1882, the date of bringing this suit.

Aside from statutory enactment authorizing it, there are many authorities which hold that upon a recovery by plaintiff in actions for the conversion of chattels, interest on their value should be allowed from the time they are taken. Arpin v. Burch, 68 Wis. 619, 32 N.W. 681; Hamer v. Hathaway, 33 Cal. 117; McCormick v. Railroad, 49 N.Y. 303; Buford v. Fannen, 1 Bay 273; 1 Sutherland on Damages [2 Ed.], sec. 105. In Conard v. Insurance Co., 6 Peters 262, the court approves the charge of the trial judge, which was as follows: "The general rule of damage is the value of the property taken, with interest from the time of the taking down to the trial. This is generally considered as the extent of the damages sustained, and this is deemed legal compensation, which refers solely to the injury done to the property taken, and not to any collateral or consequential damages, resulting to the owner by the trespass." The rule thus announced has been followed by this court, as will appear from the following adjudications: Polk's Adm'r v. Allen, 19 Mo. 467; Walker v. Borland, 21 Mo. 289; Carter v. Feland, 17 Mo. 383; Spencer v. Vance, 57 Mo. 427; Charles v. Railroad, 58 Mo. 458.

In Wilson v. City of Troy, 135 N.Y. 96, 32 N.E. 44, the court says: "When interest may be allowed as part of the damages, in actions of this character, is a question which in the present state of the law, is involved in much confusion and uncertainty, and in regard to which the decisions of the courts are not harmonious. It is, perhaps, impossible to formulate a general rule embracing every possible case. The tendency of courts in modern times has been to extend the right to recover interest on damages far beyond the limits within which that right was originally confined. What seemed to be the demands of justice did not permit the principle to remain stationary, and hence it has been for years in a state of constant evolution. This, in some measure, accounts for many of the apparently contradictory views to be found in the adjudged cases." And, after adverting to the law in England, the court further said: "The principle that the right to interest in such cases was in the discretion of the jury was, however, gradually abandoned, and now the rule is, that the plaintiff is entitled to interest on the value of property converted or lost to the owner by a trespass as matter of law. The reason given for the rule is that interest is as necessary a part of a complete indemnity to the owner of the property as the value itself, and in fixing the damages, is not any more in the discretion of the jury than the value. * * * There is a class of actions sounding in tort in which interest is not allowable at all, such as assault and battery, slander, libel, seduction, false imprisonment, etc. There is another class in which the law gives interest on the loss as ...