Union Mill Co. v. Prenzler

• Decision Date: 20 January 1897
• Citation: 69 N.W. 876,100 Iowa 540
• Parties: UNION MILL CO. v. PRENZLER.
• Court: Iowa Supreme Court

100 Iowa 540

69 N.W. 876

UNION MILL CO.

v.PRENZLER.

Supreme Court of Iowa.

Jan. 20, 1897.

Appeal from district court, Des Moines county; James D. Smyth, Judge.

This is an action at law, aided by attachment, originally commenced against L. Seuffert to recover the sum of $2,655 claimed to be due plaintiff for flour and feed sold and delivered. The defendant answered, admitting the claim, and pleading a counterclaim against the plaintiff and sureties upon the attachment bond for the wrongful suing out of the writ. After the filing of the answer, and before the case was called for trial, Seuffert died, and his administrator was substituted. The case was tried to a jury, resulting in a verdict and judgment for defendant in the sum of $3,114. Plaintiff appeals. Affirmed.Burns & Sullivan, W. W. Dodge, and Stutsman & Stutsman, for appellant.

Seerley & Clark and Power, Huston & Power, for appellee.

DEEMER, J.

1. Appellant first complains of the ruling of the court denying a motion for change of place of trial. The case was brought for the September, 1894, term of court, and was continued to the November, and afterwards to the January, 1895, term. At the January term a trial was begun, and during the progress of the trial defendant died. His administrator was substituted, and, upon this substitution being made, plaintiff moved for a continuance. This motion was sustained, by agreement of parties thereafter made, and the trial of the case was resumed, resulting in a verdict for defendant. A new trial was granted, and the case continued to the April, 1895, term. The motion to change the venue was filed April 13, 1895. The statutes of this state provide that such a motion cannot be made after a continuance, except for a cause not known to the affiant before such continuance. Code, § 2591. It would seem that the motion was filed too late, and for this reason was properly overruled. But, if this be not true, the statute provides that the trial court, in the exercise of a sound discretion, must decide whether a change shall be granted according to the very right and merits of the matter. Code, § 2590. It does not appear that the court abused its discretion in denying the motion. The affidavits filed by appellant tending to show prejudice on the part of the inhabitants of Des Moines county were met by an equally large number of counter affidavits tending to show the contrary; and, if there is any difference in the statements, it is in favor of those made for the defendant, for the witnesses making them seem to have had the better opportunity to know of the situation.

2. Just before the commencement of the last trial plaintiff asked leave to file an amendment to its petition claiming interest on its account. The request was denied by the court, and error is assigned on the ruling. The court below was vested with a large discretion in such matters, and, while the rule is to allow amendments, yet to refuse them is not reversible error, especially where, as in this case, no prejudice resulted. The amendment claimed interest on the account from January 25, 1895. The action was commenced and the attachment levied in July, 1894. The jury found that plaintiff's claim was liquidated by the damage resulting from the attachment; hence, plaintiff was not entitled to interest. The ruling, even if erroneous, was without prejudice. Again, the amendment was proposed on the very day the case was called for trial, and the practice of allowing amendments at such a time should not be encouraged.

3. Plaintiff asked the court to submit the following special interrogatories to the jury: “(1) Did the plaintiff, the Union Mill Company, by its president, A. McElhinney, make a fair statement of all the facts within his knowledge to J. F. Burns, an attorney at law, before the writ of attachment was sued out? (2) Do you find, on the case submitted as set forth in interrogatory 1 hereof, that said attorney advised that a good cause of action and a right to sue out the writ of attachment existed?” The request was refused, but the court did submit the following: “(3) Was the writ of attachment directed to be sued out on the advice of J. F. Burns, an attorney at law, after a fair statement of all the facts at the time in the possession of A. McElhinney, president of the company?” To this the jury answered: “No; all the facts were not given.” It seems to us that this interrogatory embodies all the essential facts called for by the two refused, and that appellant had no cause of complaint. The jury clearly answered all material and relevant matters called for by the two interrogatories which were refused. An affirmative answer to interrogatory 1 would not have been a complete defense, as counsel argue. See Acton v. Coffman, 74 Iowa, 17, 36 N. W. 774;Myers v. Wright, 44 Iowa, 38.

4. Complaint is made of the instructions given by the court, and of the refusal to give certain instructions asked by plaintiff. We need not set out the ones complained of. It is sufficient to say that they state the law as it has been announced by this court in numerous decisions, and are singularly free from error or misstatement. The instruction with reference to exemplary damages closely follows the rule announced in Nordhaus v. Peterson, 54 Iowa, 71, 6 N. W. 77, and Hurlbut v. Hardenbrook, 85 Iowa, 606, 52 N. W. 510. The effect to be given advice of counsel was properly set forth, and instruction No. 13, asked by plaintiff, to the effect that the uncontradicted evidence showed that plaintiff had taken the advice of counsel, was properly refused, because there was a conflict on this point. The jury allowed defendant, as a part of the damages, interest on money which came into the hands of the sheriff on garnishment proceedings. This is said to be error, because no claim for such damages is made in the counterclaim. We think the matter is sufficiently covered by the pleading, and need give the matter no further consideration. It is further contended that the court erred, in stating the issues to the jury, in not limiting the recovery of exemplary damages to $2,120.50. This is based upon the thought that defendant asked judgment for $10,000 in all, $7,120.50 of which was actual damages. This contention is fully met by the amendment to the counterclaim which claims but $2,000 actual damages, and in all, both actual and exemplary, $10,000. Complaint is made of the instructions as to the burden of proof. There is no merit in this. The instructions state the rule given by this court in numerous cases. We need not further refer to the numerous objections urged against the instructions. It is sufficient to say that we find no error.

5. It is said that the amount of the damages allowed, both actual and exemplary, are excessive, and are the result of passion and prejudice. The amount found by the jury as actual damages was $770.06; as exemplary, $5,000.

As to the actual damages, it is sufficient to say that there was a decided conflict in the evidence as to each and every claim made by the defendant, and, under well-known rules, we cannot interfere. Defendant claimed that, at the time of the attachment, a certain account held by him against R. Hodgens & Co. was good, and that the firm became insolvent after the attachment was rendered, and that he lost the same. To prove the solvency and insolvency of the firm, he introduced a witness, who said he knew their financial standing, who was permitted to give it as it was both before and after the attachment. It is said that this is error, for the reason that the witness based his testimony on, and had reference to, the rating of the firm by commercial agencies. An examination of the record discloses that this is not true, and that the court sustained objections to questions calling for the commercial ratings of Hodgens & Co.

As to the exemplary damages allowed, three objections are made: (1) It is said that the right to recover such damages ceases on the death of the complainant; (2) it is claimed that the evidence shows conclusively that the plaintiff acted on the advice of counsel; and (3) that they are grossly excessive, and indicate passion and prejudice on the part of the jury.

The first objection presents a question which is new to the courts of this state, and we have not been cited to, nor are we able to find, many cases in which the question seems to have been considered. Appellant insists that exemplary damages are not compulsory, and, therefore, not property, and that, although, under the statute, causes of action survive, yet the representative of a deceased person cannot recover them; and he cites, in support of his contention, Sheik v. Hobson, 64 Iowa, 146, 19 N. W. 875. That the general rule, both at common law and under the statute, is as claimed, must be conceded. 7 Am. & Eng. Enc. Law, 477; Dwyer v. Railroad Co., 84 Iowa, 479, 51 N. W. 244;Rose v. Railway Co., 39 Iowa, 246. But it must be born in mind that, where the action is brought by a representative of one deceased, it is to repair the injury due to the estate, and the damages are assessed with reference thereto. Consequently, pain and suffering are not taken into account. Neither can exemplary or punitive damages be awarded, as a general rule, for they are peculiar to the person, and do not relate to pecuniary or property rights. And, notwithstanding all causes of action now survive, and may be brought despite the death of the person entitled to the same (Code, § 2525), yet, in assessing the...