State v. Hope

• Decision Date: 13 March 1894
• Citation: 25 S.W. 893,121 Mo. 34
• Parties: STATE ex rel. ROBERTSON v. HOPE et al.
• Court: Missouri Supreme Court

25 S.W. 893

121 Mo. 34

STATE ex rel. ROBERTSON v. HOPE et al.

Supreme Court of Missouri, Division No. 2.

March 13, 1894.

CONVERSION — DAMAGES — INTEREST — WHEN QUESTION FOR JURY — APPEAL — REVIEW — EXCESSIVE JUDGMENT — REMITTITUR — REVERSAL.

1. Where the jury on the trial of an inquisition of damages may, "if they shall think fit," give damages, in the nature of interest, above the value of the goods at the time of the conversion (Rev. St. 1889, § 4430), the allowance of such interest to the owner of goods wrongfully seized by the sheriff is in the discretion of the jury.

2. Where the evidence is conflicting, and the instructions cover the whole case, a judgment will not be disturbed.

3. Where a verdict is merely excessive, and plaintiff offers to remit the excess, the judgment will not be reversed, but the remittitur will be allowed.

Appeal from circuit court, Saline county; Richard Field, Judge.

Action by the state of Missouri, on the relation of John M. Robertson, against John C. Hope and others, on the official bond of defendant Hope as sheriff of Jackson county, Mo., to recover the value of certain goods wrongfully levied on and sold by such sheriff, and claimed by relator. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. Affirmed.

Gage, Ladd & Small, for appellants. Karnes, Holmes & Krauthoff, for respondent.

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, Mo. The case has been twice before this court, and will be found reported in 88 Mo. 430, and 102 Mo. 410, 14 S. W. 985, 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 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 No. 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 27th 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 6 per cent. per annum from the 27th 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 action for the conversion of chattels, interest on their value should be allowed from the time they were taken. Arpin v. Burch, 68 Wis. 619, 32 N. W. 681; Hamer v. Hathaway, 33 Cal. 117; McCormick v. Railroad Co., 49 N. Y. 303; Buford v. Fannen, 1 Bay, 273; 1 Suth. Dam. (2d Ed.) § 105. In Canard v. Insurance Co., 6 Pet. 262, the court says: "The general rule of damages is the value of the property taken, with interest from the time of the taking down to the time of the trial. This is generally considered as the extent of 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...