Wallace v. Cox
| Decision Date | 19 December 1916 |
| Docket Number | 18944 |
| Citation | 160 N.W. 992,100 Neb. 601 |
| Parties | WILLIAM E. WALLACE, APPELLANT, v. A. W. COX ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Webster county: HARRY S. DUNGAN JUDGE. Affirmed.
AFFIRMED.
L. H Blackledge, for appellant.
Bernard McNeny, contra.
This action is upon a replevin bond. It was once before in this court, and in the first opinion the judgment of the district court was affirmed. 92 Neb. 354. Afterwards, upon rehearing, it was reversed and the cause remanded. 94 Neb. 194. There has since been a trial in the district court and the case is again appealed.
In this last trial the court instructed the jury to find for the plaintiff the amount that the jury in the first trial found as damages, together with the costs of the first trial, and then instructed the jury that the only question for them to determine was whether the property in question was damaged after the trial in the original replevin suit, and the amount of such damage. The plaintiff asked the court to instruct the jury that they should find all damages which "occurred while the property was in the possession of the Clark Implement Company or its agents from the time it was taken in the replevin suit * * * to the time of the offered return" of the property. The court in several different instructions made it plain to the jury that they should not allow any damages to the property in this suit upon the bond, which damages occurred before the trial of the replevin suit. This was upon the theory that the defendants in replevin must upon the trial recover any damages that have occurred to the property up to that time, and this is the principal, if not the only substantial, question that is presented in this record. The statute provides that, when the finding is for the defendant, the judgment shall be "for a return of the property or the value thereof in case a return cannot be had." Rev. St. 1913, sec. 7833. The "value thereof" is instead of a return of the property when a return cannot be had, and should be the equivalent of the property itself as it was at the time of the trial, that is, should be its value at the time of the trial, and, if it has been decreased in value by the action of the plaintiff in replevying it, such loss of value would be damages which should be included in the judgment in favor of the defendant in replevin. The New York court has so decided under a similar statute; that is, the New York court construes the statute to mean that the value thereof which is to be recovered in case the property cannot be returned is the value at the time the property should be returned, that is, at the time the judgment is entered. The contention of the plaintiff in this case now is that he ought to be allowed to prove that as a matter of fact the jury did not take into consideration any damages to the property in their verdict in the original replevin suit.
DISSENT BY: HAMER
I am unable to agree with the majority opinion. William F Wallace, the defendant in the replevin suit and the plaintiff in this case, testified that there was taken from him a threshing machine. It was a 10-horse Russell engine, separator, blower, feeder, driving belt, water tank--a threshing machine outfit. It was returned to his shed, and he testified that he refused to receive it; also that the property was in bad condition; that the cylinder was pitted where it had been run without oil and burned; that the driving wheels were broken; that the canopy top was torn; that the cylinder guides were all cut; that the axle on the water tank was broken; that the grain pan was warped, and where there was a strip of tin to separate the grain it had come loose, and nails had been driven in the separator along the side; that the driving belt was worn out and the other belts were badly worn; that the engine was not getting enough oil; that the man who was running it said that he tried to pump oil into it, but the cylinders were so worn that it would not take any effect; that they started about 9 or 10 o'clock in the morning to go 2 3/4 miles, and it took until after 2 o'clock in the afternoon to go that distance; that it took a big tank of water and eight tanks besides to run the machine to town; that the property was not worth over $ 700; also that he offered to prove that he had had no access to the machine and engine, and that there was no opportunity to examine it from the time it was taken from him until it was offered back; that he did not know its actual condition till that time; that he offered to prove by a witness on the stand that the difference in the value of the outfit in controversy in the replevin suit from the time it was taken from him until it was offered back to him was $ 1,200; that between the time when it was taken from him under the replevin proceedings and the time when it was offered back it was kept in the possession of the Clark Implement Company and its agent, Eli H. Cox, and away from him, and without his having any access or means of access to it, or any knowledge or means of knowledge of its condition, and that the actual condition at the time it was tendered back was not known to him, and that the condition at the time of the trial of the replevin suit could not be ascertained by him; that the said Clark Implement Company and its agent, Cox, concealed the fact of the damage and injuries from him, so that he did not know the same. This is the third time this case has been before this court.
The action is one brought upon a replevin bond by the successful defendant in a replevin suit. The machine, when returned, was in so badly a damaged condition as to give the defendant in the case the option of rejecting it and suing for its value on the bond. Upon the trial of the replevin suit the jury found that the defendant (plaintiff herein) was the owner and entitled to the possession of the property, and that, at the time the property was taken under the writ, its value was $ 2,000, and that defendant had sustained damages by the wrongful taking and using of said property in the sum of $ 404.50, and costs $ 121.60. Upon the trial of the action on the replevin bond, there was a verdict and judgment for the plaintiff in that case for $ 2,686.33. The judgment was first affirmed. (92 Neb. 354) upon condition that plaintiff remit from the judgment the sum of $ 404.50. The badly damaged condition of the property controlled the views of the majority. It was said: The citations are: "--which we have examined.
It was then said that the judgment of the district court would be reversed and the cause remanded, unless the plaintiff within 60 days from the rendition of the order remitted from the judgment $ 404.50 as of the date of the judgment: "If such remittitur is filed, the judgment of the district court for the sum of $ 2,121.60, with interest at 7 per cent. on $ 2,000 from the 19th day of July, 1909, will be affirmed, but at the costs of the appellee."
Judge Sedgwick dissented from the above opinion, and he claimed in his dissent that the plaintiff was not justified in refusing to accept the property when it was returned. He claimed that the petition and the evidence failed to make a case for the plaintiff, because they did not allege or prove that there was any other or different damage than that which the jury allowed in their verdict. He stated that no reason was given for refusing a return of the property: "The evidence and the rulings of the trial court show plainly that the court tried the case upon the incorrect theory that this plaintiff would be justified in refusing to receive a return of the property if he could show that the property was not in the same condition when it was returned as it was when it was replevied, without regard to the fact that he had been allowed $ 404.50 because of the change in the condition of the property." Judge Sedgwick's contention was: "If the property replevied is delivered to the plaintiff and the plaintiff has damaged the property in any way while so in his possession, there seems to be no doubt that the defendant may upon the trial of the replevin action recover such damages." Judge Sedgwick's view is clearly apparent when he says: "If he (plaintiff) fails to return the property at once, and retains it, and the property is damaged in his possession while he retains it after the judgment in replevin, a different question is presented, which is not involved in this case." He was then of the opinion that the judgment of the district court should be reversed. The majority opinion affirmed it.
The case was heard on rehearing before this court, and Judge Rose delivered the majority opinion....
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