Dillard v. McClure

Ellison, J. This is an action in replevin, in which plaintiff obtained judgment for $1,225.73. Defendant contends that the petition is fatally defective in not alleging that plaintiff had any interest in the property by ownership, or otherwise, but merely alleging that plaintiff was entitled to the possession thereof. The petition, under the authority of Benedict v. Jones, 60 Mo. App. 219, is subject to the objection taken by defendant, but it is relieved of the objection by the answer filed, wherein the nature of plaintiff’s right is asserted. Donaldson v. County of Butler, 98 Mo. 163; Beckman v. Ins. Co., 49 Mo. App. 604. The verdict of the jury was in the following language: “We, the jury, find for plaintiff in the sum of twelve hundred and twenty-five and 73-100 dollars ($1,225.73).” We think this was a sufficient finding under the evidence in the cause. It was shown that defendant had the possession of the property andsoldit, so that at the time of trial it was not in their possession and it was impossible that the possession could be restored to plaintiff. It was, practically, as impossible for it to have been restored to plaintiff as if it had been out of existence. In case where the defendant has the property in possession and fails in his defense there should be a finding of the value and of damages, for in such case the prevailing party has the right of election to take the property or its value. But in a case where the defendant has not the possession, there can not be any necessity, or utility, in finding the value. The whole case is resolved into one of damages. The statute itself reads: “Bee. 7412. If the defendant has not the property in possession, the court or jury shall assess the damages, and the judgment shall be against the defendant and his sureties, for the damages so assessed and costs of suit; and in all cases the prop [492] erty shall be presumed to be with the party who should have it, until the contrary be shown.”' It may be suggested that the statute contemplates a case where the property has been delivered to the plaintiff, at the institution of the suit, but there is no reason for restricting its language to such a case. Here the property was not delivered to the plaintiff and it had been sold by defendants before the trial, so that plaintiff’s whole case consisted in his damages. Suppose an article of property of the value of $100, is replevied, but possession retained by defendant, and it is damaged between his taking and detaining, and the time of trial, in the sum of $95. In such case, the plaintiff would recover, as the value of the property at the time of trial, the sum of $5, and as damages to the property, the sum of $95. Such a recovery compensates his loss and meets the character of his loss. But suppose the defendant had entirely destroyed the property. There would then be nothing in existence to set a value upon, as such, and his whole recovery would be damages. And such, practically, was this ease. Defendants complain of remarks of plaintiff’s counsel while addressing the jury, both in the opening and closing argument. The remarks objected to, which were made by counsel in the opening argument, if of sufficient importance to be noticed at all, were corrected by the court. Those made by counsel in the closing argument were not noticed by the trial court, perhaps for two reasons — one, that they were not of such a character as to be at all likely to affect the jury, to the prejudice of the defendants; the other, that counsel himself, in great measure, withdrew what he had said. It is quite true that an argument to the jury should be based upon the facts of the case, together with the record. But it will' readily occur to anyone, that an ironclad rule, prescribing what an at [493] torney shall or shall not. say, by way of argument or illustration, would be altogether impracticable. Appellate courts must necessarily defer largely to the discretion of the trial court in a matter of that nature. Of course, cases may, and do, occur, where counsel may be led into manifest impropriety in their zeal for their clients, and in such cases, where not corrected, the appellate tribunal must interfere. Huckshold v. Railroad, 90 Mo. 548. We find no substantial objection to plaintiff’s instruction on the measure of damages. The property was shown to be of much greater value than the amount of plaintiff’s mortgage. The property had been disposed of by defendant McClure. The instruction directed the jury to find for plaintiff the value of the property, but not exceeding in amount the plaintiff’s claim. The effect of the instruction was that if the finding was for plaintiff, it should be in a sum equal to his claim on the property. It has now become familiar to the courts and bar, that replevin is an action so flexible in its nature and results, that it may be used as a remedy to satisfy the very wrong which has been done to the property, on which the aggrieved party had a lien, and to the possession of which he was entitled. Hickman v. Dill, 32 Mo. App. 509; Dilworth v. McKelvy, 30 Mo. 149. Each of these cases give ample support to what we have said. Indeed, what we now apply to this case is but giving effect to what was determined in those cases. Counsel for defendants complain at length that the verdict is not supported by the evidence. An examination of this objection to the result below has satisfied us that it is not well founded. It would serve no useful purpose to go into a detailed analysis of the matters shown at the trial. It is sufficient to say, that under the- fundamental rules governing jury trials and [494] the right which belongs exclusively to the jury to pass on the weight of the evidence and to draw reasonable inferences therefrom, we would be wholly unauthorized to interfere in this case. Other suggestions in opposition to the judgment have been urged, but we do not deem any of them sufficient to properly secure a reversal of the judgment and it is accordingly affirmed. All concur.