Tannahill v. Lydon

• Decision Date: 23 July 1918
• Citation: 173 P. 1146,31 Idaho 608
• Parties: ANNA TANNAHILL, Administratrix of the Estate of GEORGE W. TANNAHILL, Deceased, Respondent, v. HARRY LYDON, Sheriff of Nez Perce County, Appellant
• Court: Idaho Supreme Court

173 P. 1146

31 Idaho 608

ANNA TANNAHILL, Administratrix of the Estate of GEORGE W. TANNAHILL, Deceased, Respondent, v. HARRY LYDON, Sheriff of Nez Perce County, Appellant

Supreme Court of Idaho

July 23, 1918

CLAIM AND DELIVERY-DAMAGES-MEASURE OF-INSTRUCTIONS-VERDICT-JUDGMENT.

1. In an action of claim and delivery where the property wrongfully taken and detained has a usable value, the measure of damages is the value of the property wrongfully taken at the time of the taking with the reasonable value of the use of said property from the time of the taking to the date of the judgment, and an instruction to that effect is not erroneous.

2. When a general verdict is submitted to the jury and no special verdict is requested, a general finding for either party is sufficient.

3. In actions for claim and delivery the verdict need not be in the alternative.

4. A judgment in claim and delivery which awards the plaintiff the return of the property or the value of it, and also awards an additional sum as damages, is in the alternative and is not void for indefiniteness as to the amount upon which interest is to be paid, for if the property is returned the amount assessed as damages will alone draw interest from the date of judgment; if the property is not returned the amount assessed as the value of the property and also the amount assessed as damages will draw interest from the same date, the plaintiff in either event, being entitled to the damages awarded.

[As to the measure of damages recoverable in replevin, see note in 22 Am.St. 285]

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action in claim and delivery. Judgment for plaintiff affirmed.

Judgment affirmed. Costs awarded to respondent.

P. E Stookey, for Appellant.

"A charge that the measure of damages is 'the value of the use or hire of the property while in the possession of the defendant, from the time of the demand' is prejudicial to the defendant when unaccompanied by considerations of whether the property could have been constantly employed by plaintiff at a given rate of earnings, either letting for hire or by employment at home." (Brunell v. Cook, 13 Mont. 497, 34 P. 1015.)

The verdict in this case should have passed upon the question of ownership and wrongful taking and detention. (Hickey v Breen, 40 Mont. 368, 106 P. 881, 20 Ann. Cas. 429; Johnson v. Fraser, 2 Idaho 371, 373, 18 P. 48.)

The verdict makes no mention of the essential facts of either possession, ownership or wrongful taking, all of which are essential to a judgment in plaintiff's favor. The basis of every action in claim and delivery is ownership or possession, and without a verdict on these important facts plaintiff is not entitled to a judgment in his favor. ( Castagnino v. Balletta, 82 Cal. 250, 251, 23 P. 127; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114; Venine v. Archibald, 3 Colo. 163, 169; Deasey v. Thurman, 1 Idaho 775, 779; Barker v. State, 48 Ind. 163, 167. Cited to the point stated, in 90 Am. Dec. 390, and 97 Am. Dec. 499, note.)

The judgment in claim and delivery should be in the alternative,--first for the delivery of the property, and second for the payment of a specific sum in case delivery cannot be had. The judgment in this case is not clear on that point, and is also indefinite as to the item on which interest is to be charged. (Hynes v. Barnes, 30 Mont. 25, 75 P. 523.)

Charles L. McDonald, for Respondent.

"The measure of damages in actions of replevin where the property sought to be recovered has a usable value is the value of the property at the time of the taking with the value of its use from the time of taking." (Cornwall v. Mix, 3 Idaho 687, 34 P. 893; Sebree v. Smith, 2 Idaho 359, 16 P. 915; Cowden v. Finney, 9 Idaho 619, 75 P. 765; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

Since this appeal was taken the respondent, George W. Tannahill, has died, and his wife, Anna Tannahill, has been appointed the administratrix of his estate. A stipulation was filed in this court that the administratrix be substituted for and in place of respondent, George W. Tannahill, and an order of substitution has been made in accordance therewith.

This is an action in claim and delivery to recover the possession of a mare, or for her value in case recovery could not be had, and for damages for her detention. The appellant, as sheriff of Nez Perce county, took possession of the mare and sold her under a writ of execution to satisfy a judgment in the probate court of that county by one R. B. McKissick against one Hugh Terry. The case was tried to a jury and a verdict returned in favor of respondent, placing a value of $ 60 on the mare and fixing the damages for the unlawful detention at $ 85. This appeal is from the judgment entered on the verdict.

The assignments predicating error upon the rulings of the court touching the admissibility of certain evidence are without merit. The fifth assignment is that the court erred in giving the following instruction:

"The jury is instructed that in an action of this character if it is shown by a preponderance of the evidence that the plaintiff was the owner of the property in controversy, which was taken by the defendant, and entitled to the immediate possession thereof, and that said taking was wrongful, the measure of plaintiff's damage herein is the value of the property so wrongfully taken at the time of the taking, with the reasonable value of the use of the said mare from the time of the taking to this date."

It is contended by appellant that this instruction is erroneous and prejudicial because not accompanied by considerations of whether the property could have been constantly employed by plaintiff at a given rate of earnings by letting for hire or by employment at home. Appellant relies upon the case of Brunell v. Cook, 13 Mont. 497, 34 P. 1015, where the judgment was reversed, as to the damages allowed, for the giving of a similar instruction. While the Montana decision clearly supports the contention of appellant, nevertheless the instruction as given has been repeatedly approved by this court. (Sebree v Smith, 2 Idaho 359, 364, 16 P. 915; Cornwall v. Mix, 3 Idaho 687, 690, 34 P. 893; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.) In any event the amount of the damages must be proven by the evidence introduced at the trial. It is apparent from the verdict that the jury took into consideration the fact that this mare would not have been earning money for respondent during all of the time she was unlawfully detained by appellant. The usable value of the mare was placed by the witnesses at from fifty cents a day up; taking the minimum of fifty cents a day would make fifteen dollars a month. The mare was wrongfully detained approximately ten months, which would make her usable value on this basis about $ 150,--but the verdict fixes it at $ 85. It is apparent that the jury gave a practical application of the instruction...