Younglove v. Knox

• Decision Date: 14 October 1902
• Parties: YOUNGLOVE et al. v. KNOX.
• Court: Florida Supreme Court

33 So. 427

44 Fla. 743

YOUNGLOVE et al. v. KNOX.

Florida Supreme Court

October 14, 1902

Error to circuit court, Alachua county; William A. Hocker, Judge.

Action by William M. Knox against G. D. Younglove and C. B Younglove doing business under the firm name of G. D Younglove & Son. Judgment for plaintiff, and defendants bring error. Affirmed on conditions

Syllabus by the Court

SYLLABUS

1. In replevin, where the verdict for plaintiff finds as damages only interest upon the value of the property from the date it was taken by defendant, error, if any, in admitting evidence as to profits that might have been realized by plaintiff from the property while it was detained is harmless, it affirmatively appearing that such evidence in no way affected the verdict.

2. Where the evidence in replevin shows that the property sued for, with other property, was taken into defendant's possession at the same time and in the same manner, and plaintiff claims it was taken forcibly, and without his consent, and defendant claims that it was voluntarily delivered to him in payment of a debt, evidence that plaintiff recovered the other property in another suit wherein defendant permitted the judgment to be taken without a defense being made is relevant and admissible.

3. Error in permitting an improper question is harmless if the answer given in response thereto contains no incompetent testimony.

4. Where the allegations of an answer and a cross-bill, filed by the defendant in a common-law action, in another suit in equity, wherein such defendant and the plaintiff in the common-law action were parties both to the original and the cross-bill, conflict with the testimony of the defendant in the common-law suit upon material matters, such answer and cross-bill, or the matters therein conflicting with such testimony, are admissible as evidence in the common-law suit.

5. Where assignments of error are predicated upon the giving or refusal of instructions requiring statements of the substance of the testimony upon which they were based in order to determine their propriety, such statements must be set forth in the bill of exceptions and abstracts in connection with the instructions, or the supreme court cannot, under its rules, consider them.

6. Where the abstracts of record do not purport to set forth all the instructions given by the court, and it appears therefrom that other instructions than those set forth were given, the supreme court will be bound to presume that requested instructions were properly refused because embraced in substance in the instructions given.

7. An assignment of error alleging generally that the court erred in giving two or more instructions will be considered by an appellate court no further than to ascertain that one of such instructions was properly given, where the instructions assert separate and distinct propositions of law.

8. In an action of replevin, an instruction to the effect that, to enable plaintiff to recover, it must appear from the evidence that he was entitled to the possession of the property sued for, or some of it, at the time suit was brought, is not erroneous.

9. Where, in an action of replevin, the affidavit and declaration described the property sought to be recovered consisting of several different items of the alleged total value of $1,500, but affixed no separate valuation upon each item, and upon the trial the jury found for the plaintiff each item of the property sued for, affixing to each a specific valuation amounting in the aggregate to $1,670, the trial court was not authorized to permit the declaration to be amended after verdict by changing the alleged value of the property to a sum exceeding the amount found by the jury, so as to authorize the entry of a judgment for the valuation so found. In such a case the court should grant a new trial upon permitting an amendment of the nature stated.

10. The ad damnum clause of the declaration in an action for the recovery of specific goods and chattels does not cover their value, but only the damages claimed for their detention.

11. Where assignments of error properly raise the question of the sufficiency of the evidence to support the verdict, they cannot be considered unless all the evidence is presented by an evidentiary bill of exceptions properly made up and abstracted, if the cause is to be determined upon abstracts of the record.

COUNSEL

W. W. Hampton, for plaintiffs in error.

R. L. Anderson, for defendant in error.

OPINION

PER CURIAM.

This cause was referred by the court to two of its commissioners Messrs. Maxwell and Glen, for investigation, who report that the judgment of the circuit court ought to be reversed, unless a remittitur is entered by the defendant in error, as hereinafter stated.

On March 27, 1888, defendant in error instituted an action of replevin against the plaintiffs in error in the circuit court of Alachua county to recover certain horses, buggies, carriages, etc., alleged in the affidavit to be of the value of $1,500. The property was redelivered to defendants upon their forthcoming bond. The declaration subsequently filed averred that defendants, on the 25th day of March, A. D. 1888, wrongfully took the said personal property, and wrongfully detained the same from the possession of the plaintiff; that said property was of the value of $1,500, and it claimed $2,000 damages. A plea of not guilty was filed, and a trial had on May 12, 1896, resulting in the following verdict in plaintiff's favor: 'We, the jury, find the plaintiff entitled to right of possession of said property as described, viz.:

One brown horse, name Colt, valued at	$ 175
One bay horse, called the Dupree horse, valued at	125
Two gray horses, named Joe and Bob, valued at	400
One mare, named Mary, valued at	200
One bay horse, named Sealim, valued at	175
Three top buggies valued at	195
One three-seated hack valued at	65
Two carriages valued at	200
One one-horse wagon valued at	40
Three saddles and bridles valued at	15
Four sets single harness valued at	30
Three sets double harness valued at	50
	------
	$1,670

'The total amount, sixteen hundred and seventy dollars, with interest at eight per cent. per annum from date of dispossession, March 25, 1888, up to present date.'

Prior to the rendition of judgment the plaintiff moved to amend his declaration so as to allege the value of the property to be $1,700, and also to increase the damages claimed to $3,000, which motion was granted, and the amendments duly made. A motion of defendants for a new trial was denied, and likewise a motion in arrest of judgment. Judgment was entered on the verdict that the plaintiff recover from defendants the property, and $1,085, the interest upon its value, as fixed by the jury, from March 28, 1888, to day of trial, as damages for its detention; and also against the defendant and the sureties upon the forthcoming bond for $1,670, the value of the property as fixed by the verdict. From that judgment the present writ of error was taken.

I. The first assignment of error alleges error in permitting the following question to be propounded to W. M. Knox, the plaintiff: 'State what income, net, you were realizing from the property sued for on the 25th day of March, 1888?' The witness answered, 'I was receiving about $5.00 a day net.' It appears from the verdict rendered by the jury that the only element of damage found by them was interest upon the value of the property from the time it was taken. They allowed nothing whatever for loss of profits upon its use. It affirmatively appears, therefore, that the defendants were not prejudiced by the ruling here complained of, even if erroneous, as it in no way affected the verdict.

II. The second and third assignments of error are argued by counsel for plaintiffs in error together. Plaintiff was asked the following question on direct examination: 'Did the defendants, on or about the 25th of March, 1888, obtain possession of any other property belonging to you besides that described in the declaration of this case? If so, state all the facts showing when, where, and under what circumstances.' This question was answered by the witness as follows: 'He did obtain other property in the same manner and at the same time that he took the property described in the declaration. He took $43.64 worth of cabbage crates, thirty bushels of corn, a keg of nails, 6 or 7 buggy robes, 7 halters, 5 buggy whips, 3 bales of hay, and a new top buggy that had not been used.' G D. Younglove, one of defendants, on cross-examination was asked the following question: 'Did Knox bring suit in the county judge's court after you took possession of the crates, the feed, whips, and other articles, for recovery of same, and obtain judgment against you therefor?' He replied as follows: 'He commenced suit against me, and I let it go by default, as my lawyers advised me it was not worth fighting.' Both questions were objected to by defendants, but the court overruled the several objections, and the sole ground of objection urged in this court is that the evidence sought was outside the issues on trial. The answers to these questions related solely to other property obtained in the same manner and at the same time as that described in the declaration. Error in permitting an improper question is harmless if the answer given in response thereto contains no incompetent testimony. Railway Co. v. Van Vleck, 143 Ill. 480, 32 N.E. 262; Goodrich v. McClary, 3 Neb. 123. Plaintiff testified that he was the owner and in possession of the property sued for, together with the other property here inquired about, at the...