In Crystal Dome Oil Gas Co. v. Savic, 51 Idaho 409, 6 P.2d 155 (1931), the ousted president of plaintiff, stating that if he could not run the company "he would `wreck it' or tie it up so that all operation would cease," 51 Idaho at 411, 6 P.2d at 156, converted and withheld from the company a geologic report which caused an offer to purchase the company to be withdrawn.Summary of this case from Hatfield v. Max Ronse Sons Northwest
December 14, 1931.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.
Action in claim and delivery, seeking damages for retention of a geological report. Judgment for plaintiff. Affirmed.
S.L. Tipton, for Appellant.
To recover damages for the detention of personal property there must be evidence of its usable value during the time of its detention. ( Cunningham v. Stoner, 10 Idaho 549, 79 P. 228; Duck Lee v. Boise Dev. Co., 21 Idaho 461, 122 P. 851.)
Compensatory damages will not be awarded in an action in claim and delivery unless there is evidence of loss and the extent of the loss. ( Mergenthaler Linotype Co. v. Kansas State Printing Co., 61 Kan. 860, 59 P. 1066.)
It was error on the part of the court to instruct the jury on the usable value of the report, there being an entire absence of evidence as to its usable value while detained. ( Gwinn v. Gwinn, 5 Idaho 271, 48 P. 295; Lloyd v. Anderson, 39 Idaho 314, 227 P. 32; Mahaffey v. Carlson, 39 Idaho 162, 228 Pac. 793; Brown v. Morris, 3 Kan. App. 86, 45 P. 98.)
J.B. Eldridge, for Respondent.
Punitive damages are allowable in replevin actions in all cases where there has been peculiar circumstances of outrage, oppression and wrong in the taking or detention of the property sought to be recovered. ( Unfried v. Libert, 20 Idaho 708, 119 Pac. 885; Gunnell v. Largilliere Co., 46 Idaho 551, 269 Pac. 412; Arzaga v. Villalba, 85 Cal. 191, 24 P. 656; Hall v. Smeldley Co., 112 Conn. 115, 151 Atl. 321; McCormick Harvesitng Machine Co. v. Drake, 5 Kan. App. 882, 48 P. 944; Heard v. James, 49 Miss. 236; Dreimuller v. Rogow, 93 N.J.L. 1, 107 Atl. 144.) In this state where a party desires other instructions than those given on the question of damages he must offer them at the trial, otherwise, error cannot be predicated on the failure of the trial court to give the proper instruction. ( Boomer v. Isley, 49 Idaho 666, 290 P. 405; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460; Joyce Bros. v. Stanfield, 33 Idaho 68, 189 P. 1104.)
Plaintiff and respondent, Crystal Dome Oil Gas Company, sued defendant and appellant, Paul G. Savic, seeking to replevin a geological report, of which it claimed to be the owner and which, it alleged, Savic "wrongfully, wilfully, maliciously and unlawfully took possession of" and "wrongfully, wilfully, maliciously and unlawfully" continued to withhold and retain, to plaintiff's damage in the sum of $10,000. The value of the report was declared to be $3,085. Defendant and appellant denied "each and every allegation in plaintiff's complaint contained." Verdict was rendered in respondent's favor for the value of the property and for $1,000 damages; and from that part of the judgment carrying damages came this appeal.
The errors specified may be resolved into two contentions, viz: That there was an utter lack of evidence to establish any actual damage as a prerequisite to punitive damages, and that the trial court erred in giving Instruction No. 11 directing the jury to find from the evidence what, if any, was the usable value of said report, appellant insisting that "there is no evidence in the record as to the value of the geological report during the time of its detention by the defendant."
From the record, it appears that there had been trouble between the parties. Appellant had been deposed as president and his salary stopped. Five witnesses testified that thereafter at divers times he stated that, if he could not "run the company," he would "wreck it" or tie it up so that all operations would cease. The record further shows that, due to its inability to exhibit the withheld report, respondent suffered repeated cessation of negotiations looking to the purchase of stock, on one occasion, parties interested in "taking over the whole enterprise" refusing "to go any further, unless we could get it."
In replevin actions, where the taking or detention is accompanied by wanton, malicious or oppressive conduct, the general rule is that the jury may assess exemplary or punitive damages in the nature of "smart money." The rule was clearly enunciated in Unfried v. Libert, 20 Idaho 708, 119 P. 885. In such cases, definite proof of actual damages is unnecessary. To show that a legal right has been violated is sufficient, the violation itself, supplying a foundation for nominal damages. Western Union Tel. Co. v. Lawson, 66 Kan. 660, 72 P. 283, defining nominal damages as those arising "by implication of law for the violation of the rights of another, from which injury arises but which is either incapable of ascertainment, or the value of which the proof wholly fails to show," Duggan v. Baltimore etc. R. Co., 159 Pa. 248, 39 Am. St. 672, 28 Atl. 182, declaring nominal damages recoverable "where a legal right is to be vindicated from an invasion that has produced no actual present loss of any kind," Maher v. Wilson, 139 Cal. 514, 73 P. 418, denominating them "a trifling sum awarded . . . . where, from the nature of the case, some injury has been done, the amount of which the proofs fail entirely to show," Blake v. Atlas Supply Co., 51 Okl. 426, 152 P. 81, recognizing them as a "trivial sum properly awarded in certain cases for mere technical injury as contradistinguished from actual or compensatory damages," Chaffin v. Fries Mfg. Power Co., 135 N.C. 95, 47 S.E. 226, quoting Cooley on Torts, 2d. ed., p. 74, to the effect that "in the case of a distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary and proximate result." Almost the same language was employed by the South Carolina court in Reaves v. Western Union Tel. Co., 110 S.C. 233, 96 S.E. 295, holding that "where there is evidence of a reckless or wilfull invasion of a legal right the law presumes sufficient actual damages to sustain the verdict for punitive damages." The requirement that actual damage be shown before punitive damages are recoverable is satisfied by nominal damages merely. (17 C. J. 974, note 23, and authorities cited; Reaves v. Western Union Tel. Co., supra; Webb v. Western Union Tel. Co., 167 N.C. 483, 83 S.E. 568; 2 Sutherland on Damages, 4th ed., p. 1324, and citations.) Appellant, in his brief, insists that "all the damages the jury could award plaintiff under the proof were nominal damages." Damages, though nominal, are none the less actual, whether established by proof or implication of law; damage implied is not a figment but a reality upon which may rest a judgment carrying a substantial bill of costs.
Instruction No. 11 was not erroneous. Given as a guide for damages generally, it was correct as far as it went. In the absence of statute to the contrary, where both actual and punitive damages are, as here, recoverable, a general verdict is sufficient; and, unless requested, the failure to instruct for a distinctive verdict is not fatal error. (17 C. J. 1083, and notes.) If appellant desired a specific instruction on punitive damages he should have requested it. ( Boomer v. Isley, 49 Idaho 666, 290 P. 405; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460; Joyce Bros. v. Stanfield, 33 Idaho 68, 189 Pac. 1104; Manley v. Bailey, 151 S.C. 366, 149 S.E. 119.)
Judgment affirmed; costs to respondent.
Budge, Givens, Varian and McNaughton, JJ., concur.