(dissenting.) Appellants ask for a rehearing of this cause upon two grounds:
First. Because the court overlooked the error contained in an instruction given by the trial court to the jury in the following words: “By actual damages is meant such sum as will compensate for actual loss sustained; and, if you find for plaintiff, you will assess the actual damages at the value of the property at the time of the seizure, with six per cent, interest thex-eon from the time of seizure up to this date, and such further sum as you will find from the proof the plaintiff has sustained from being deprived of his business.”
Second. “Because the evidence was not sufficient to support the verdict of the jury.”
It is unnecessary to say anything as to the second ground of the motion, in addition to what has already been said in the opinion of the court. Counsel for appellants have filed no briefs nor made any argument in support of their motion, but rely upon their brief which was on file when this cause was submitted for decision. No reason for additional comments has been suggested.
The motion seems to be based upon the belief that the instruction copied in this opinion was overlooked by the court. I know of no reason for this belief, except the failure to make mention of it in the opinion of the court. In preparing that opinion, I carefully considered the instruction, and thought no specific mention of it was necessary. In speaking for the court, and referring to that and other instructions, I said: “Many other instructions were given, but it is not necessary to set them out in this opinion.” Referring to these instructions and all other proceedings of the trial court, this court said: “Finding no prejudicial errors in the proceedings of the trial court, its judgment is affirmed.”
I think the opinion of the court is correct, especially as to the instruction mentioned in the motion. The part of the instruction objected to is in these words: “And such further sum as you will find from the proof the plaintiff has sustained from being deprived of his business.” In the opinion it is said: “The evidence does not show the damage suffered, further than the value of the goods sold.” Inasmuch as the jury were told by this instruction to return a verdict in favor of the appellee for such damages as they found from the proof that he had sustained by the loss of his business, and the evidence did not show that he had sustained any, it is difficult, if not impossible, to see how it could be prejudicial.
The record in the case clearly shows that the appellants were not prejudiced by the alleged error contained in the instruction. In connection with it, the court instructed the jury as follows: “Exemplary damages are given by law as a punishment, and to deter other’s from the commission of like trespass. In order to justify exemplary damages, the sale and the conversion of the property must have been malicious, and the sale is maliciously made under the law if made without reasonable cause to believe that it should be made under execution in hand; and if in this case you find (the) property to have been partnership property, and also 'find that Heard in writing notified the defendant, Graham, or his deputy in charge of his interests, and that,'notwithstanding the notice, the goods were sold under execution, the law will imply malice, and you will, in your sound discretion and judgment, assess such sum as you see proper as exemplary damages.” The evidence showed that the value of the goods sold was variously estimated at $400 and $1,400, and that the goods were invoiced, by the person selected by the constable to appraise them, at $930.06. The jury returned a verdict in favor of the appellee for $930, actual damaages, and six per cent, interest thereon from the 15th of April, 1895, the date of the levy of the execution, and $250, exemplary damages; and the trial court compelled him to remit the exemplary damages and$230 of the actual. Why did they return a Verdict for $930 for actual damages? Manifestly, because the goods were estimated to be worth that much by the persons selected by the court to appraise them. If so, they found that the $930 was the value of the goods, and that that was the damage sustained by the loss of the same. This is further evidenced by the fact that the court instructed the jury that, if they found for the appellee, they would assess his damages at the actual value of the property sold and six per cent, interest thereon from the time of the seizure thereof, and the fact that they were not instructed to allow any interest on any other damage, and by the fact they returned a verdict for $930 and six per cent, interest thereon from the time of the seizure. But it has been said that they might have been induced, by the objectionable part of the instruction, to estimate the actual damages at $930. This is an unreasonable assumption. They were told by that part of the instruction not to allow the appellee any damages for loss of business unless they found from the proof that he had sustained such loss. The evidence did not show that he had. There was no cause in the instruction for the prejudicial effect attributed to it; and the jury manifested no disposition to travel beyond the instruction of the court to increase the actual damages of the appellee, as is shown by the faet that they could have found the aetual value of the goods sold to be $1,400, according to the evidence, instead of $930.
In assessing the actual damages at $930, did the jury intend to compensate the appellee for loss of business in addition to the value of the goods sold? I think not. There was no occasion for them to cover up an award for sueh loss by the assessment of $930, without evidence to sustain them in so doing, when they could have found-the actual value of the goods to be a much larger sum. Neither did they do so. The eourt instructed them that if they found the “property to have been partnership property, and also found that Heard, in writing, notified the defendant, Graham, or his deputy in charge, of his interest, and that, notwithstanding the notice, the goods were sold under execution, the law will imply malice,” and they might return a verdict for exemplary damages in such sum as to them might seem proper. In response to this instruction, the jury returned a verdict in favor of appellee for $250. This sum was awarded as a punishment Of appellants for depriving appellee of his business. The return of the verdict for $930 could not have been the result of any prejudice of the jury against appellants on account of such loss. If there was any, it found full gratification in the l’eturn of the verdict for $250. The award of $930 for actual damages, as appears from the record, was based solely upon the invoiced value of the goods sold.
I think the motion should be denied.
Hughes, J., concurs with me in this opinion.