Ewing v. Blount

BARG-AN, C. J. The rule is settled by the decisions of this court, that the measure of damages in actions of trover is the value of the goods at the time of the conversion, or at any time subsequent thereto and before the trial, with interest on such value. Tatum v. Manning, 9 Ala. Rep. 144; Lee v. Matthews, 10 Ala. Rep. 682. This rule we think a correct one, arfl^ we feel no disposition to depart from it; but it is only applicable to those [696] cases where tbe owner bad not regained possession .of tbe goods before tbe trial. Pierce v. Benjamin, 14 Pick. 354; Curtis v. Ward, 20 Conn. If tbe owner bas regained tbe possession of tbe goods, be cannot recover tbeir value, and is only entitled to tbe damages be bas sustained by tbe wrongful deprivation of bis possession, and sucb damages should be commensurate with tbe injury. If tbe chattel bas been injured, be is entitled t.o compensation for sucb injury; and as be bas been deprived of tbe use and service of tbe chattel, bis damages should be commensurate with tbe value of tbe use or service, otherwise this action would be inadequate or incapable of doing complete justice. Tbe hire or value of tbe service of tbe chattel must, in sucb cases, be one of tbe criteria by which the damages are to be ascertained. The reason of tbe rule that tbe value of tbe goods, with interest, is the measure of damages, where tbe property bas not been restored to tbe owner, is founded on tbe idea, that tbe value of tbe goods recovered is equal to tbe goods themselves; and interest on that value is tbe legal damages resulting from withholding sucb value. But when tbe property is returned to tbe owner, then tbe foundation for allowing interest is gone; for its value cannot be recovered; and we must then consider tbe plaintiff as the owner of tbe property, who bas been wrongfully deprived of its use for a time. Consequently, no other rule will do complete justice, than to allow a recovery of damages equal to tbe loss sustained; and this can only be done by allowing damages equal to tbe value of tbe use or service of tbe property. See Curtis v. Ward, supra. We also think that tbe plaintiff may retake bis goods, if be can do so without committing a breach of tbe peace; and having this right, if be is put to expense, necessary and reasonable., to regain possession, (otherwise than by suit at law), be may recover sucb expenses from tbe wrong-doer; for it was bis wrongful act that induced tbe expenditure of tbe money, and there is no injustice in bolding him liable for it. This rule is sanctioned in the case of Greenfield Bank v. Leavitt, 17 Pick. 1; and I think it a correct one. i Indeed, tbe general rule insisted upon by tbe plaintiff’s counsel, that tbe value of tbe property, with interest, is tbe measure of damages, can never apply, save in those cases where tbe owner [697] has not regained the possession of the property converted. If he has regained the possession, then all the authorities agree, that the value of the property so regained shall go in mitigation of damages only, and not in bar of the suit; and in such cases we cannot look to the value of the property, as the measure of damages; for the property the plaintiff has, and has only been deprived, for a time, of its use; we must therefore compensate him for this deprivation of .its use, which can be done only by giving him damages equal to the use or service, together with such reasonable expenses as he may have borne, in obtaining the possession. This is the only rule that will do complete justice, and it is one I cheerfully adopt. The general rule we have adverted to, that the value of the property, -with interest, is the measure of damages, was adopted,, because it was considered as coming as near complete justice, in all cases, as a general rule can; but when it cannot apply to a particular case, because the property has been returned to the owner, we then must apply such rules as will do complete justice, if we can; and those we have laid down, in my judgment, approach as near the ends of justice as any that could be applied; and there is certainly nothing in the form of the action that will prevent their application. In conclusion, we will remark, that from the bill of exceptions it appears, that the d(ffendank.w.asAhe,..qrig;lnaL wrongdoer. Had it appeared that he was a bona fide purchaser from the original wrong-doer, then the case would have been presented in a different aspect, and whether the rules we have laid down would have been applicable to him or not, we decline to express any opinion. And it may also be observed, that the bill of exceptions does not show, that the expenses for regaining the possession of the slave were incurred after the suit was brought, but rather that they were paid before the bringing of the suit; and construing the bill of exceptions most strongly against the party excepting, we are bound to consider the ease as if it had appeared that the expenses were incurred before the action was commenced. The ruling of the court is correct, and the judgment must be affirmed.