Beveridge v. Welch , 7 Wis. 465 ( 1859 )

By the Court,

Cole, J.

We cannot understand upon what principle the verdict and judgment in this case can be sustained.

The jury gave the respondent five hundred dollars damages for the wrongful taking and detention of the goods by the sheriff, who had them in his possession for a period not to exceed sixteen days. The stock of merchandise taken was such as is usually kept in a country dry goods store, and was valued by the jury at six thousand dollars. The goods were not removed from the building, were carefully handled and placed in a pile in the store, where they remained until the respondent replevied them, or obtained possession of them by commencing this action. The respondent was deprived of the use and control of his goods for sixteen days, and, according to the most favorable rule, the measure of damages in this case would be the legal interest upon the value of the property while it was out of his possession, and compensation for any depreciation in the value of the goods replevied, and the necessary expense of placing the goods in their proper place. Graves vs. Sittig, 5 Wis. R., 219; Morris vs. Baker et al., id., 389; Gordon vs. Jenning, 16 Mass., 465.

Now with the exception of the testimony of George Fulton, we cannot discover any evidence tending to show that the goods deteriorated or altered in value while in the possesion of the Sheriff. Fulton swears that the damage was $2,500— being as he states, $1,000 damage to character, and $1,500 to goods, trade, &c. It is very evident that this was not a case for exemplary or punitory damages. There is not a particle of proof going to show that the sheriff acted maliciously or vexatiously in making the levy. He acted with forbearance and discretion in the strict line of his duty in enforcing a legal process without abusing or perverting its true object. He made a levy upon property which he undoubtedly supposed really belonged to the defendants in execution, the Yagers. The respondent was put to trouble in recovering possession of the goods, but to no more than what must necessarily happen in all judicial proceedings properly instituted to try the contested rights of property. As the respondent recovered possession of his goods by his writ, we cannot see why he is entitled to receive more than interest on the value of his property from the time it was taken from him until its restitution, and reasonable compensation for the depreciation in its value, if any such there was. This is generally considered the extent of the damages sustained, and is deemed legal compensation. It is not a case in which the jury were authorized to take into consideration damages to the respondent’s character, or an injury sustained in consequence of interruption to his trade, &c. We express no opinion as to the validity of the sale made by the Yagers to the respondent. The jury from the evidence were led to the conclusion that it was bona fide, and not tainted with fraud. But that sale was not so free from suspicious circumstances as to convince all the world that it was a fair transaction. The sheriff might well have concluded that it was a mere sham, resorted to for the purpose of keeping the property beyond the reach of Ya-ger’s creditors.

It was suggested by the counsel for the respondent that the question of damages was one purely for the jury to determine, and that courts will not disturb verdicts upon the ground that the damages are excessive.

That is very true, but it has no application to this case for the reason that this is not one in which the jury can give excessive or speculative damages. The verdict is entirely unsupported by every fact and circumstance in the case, and it should have been set aside by the circuit court. The refusal of that court to set aside the verdict we consider such an abuse of its discretion as to authorize the interference of this court.

The judgment of the circuit court is therefore reversed and a new trial ordered.