CONCURRING OPINION. I am unable to agree with Judge TRIMBLE that defendant is now in a position to urge that his demurrers to the evidence should have been sustained because there was no proof of the value of the separate items of property claimed to have been converted and that plaintiff has failed to show that she was the owner of all of such property.
The property claimed to have been converted may be divided into three classes; (1st) That owned by plaintiff's mother, (2nd) That "given" to plaintiff by her father when he was insolvent, and (3rd) That acquired by plaintiff from other sources than from her father. Under the last class, the evidence tends to show that plaintiff owned much more property than Judge TRIMBLE gives her credit. A substantial part of the property taken by defendant consisted of furniture that plaintiff acquired as wedding presents and by purchases made by her from money given her by guests at the hotel. However that may be, Judge TRIMBLE admits that there was evidence that she was the bona-fide owner of some of the property.
All of defendant's instructions in the nature of demurrers to the evidence were general. There was no instruction withdrawing from the jury the furniture that plaintiff acquired from her father as a "gift" when he was insolvent, or the mother's furniture and, defendant, in at least two instructions submitted to the jury the question of whether there was a fraudulent conveyance by the father of the "gift" property. In one of defendant's instructions the matter of whether some of the property was the mother's was submitted. It makes no difference whether there were actually a fraudulent conveyance by the father, if defendant tried the cause on the theory *Page 734 that the matter was for the jury he is bound by that theory on appeal, regardless of how strongly we may feel that the evidence conclusively shows that the conveyance was fraudulent. Defendant was not forced to submit the matter to the jury on account of the fact that his general demurrers to the evidence were overruled. Had there been no evidence that plaintiff had taken other property than that given her by her father, then the demurrers would have raised the question. However, in view of the evidence in this case, that question could have been raised only by an instruction withdrawing that class of property from the jury, but defendant, not having offered such an instruction and of course, none such was refused by the court, he was not forced to submit to the jury the question of fraudulent conveyance.
There is no merit in the complaint that the demurrers to the evidence should have been sustained because there was no evidence of the separate values of the various classes of property I have mentioned. Plaintiff introduced evidence clearly tending to show that she was the bona-fide owner of some of the property. As defendant took that property she was entitled to at least nominal damages and defendant offered no instruction confining her recovery to such damages. Therefore defendant is not now in a position to contend, and could not have contended in the motion for a new trial, that there was no evidence of the value of the property owned by plaintiff and taken by him. The point was not attempted to be raised in the trial court in any other way that I can find in the record. However, the fact that defendant did not challenge the sufficiency of the evidence as to the right of plaintiff to recover did not justify the court in assuming that the property sued for was owned by plaintiff, as was done in plaintiff's instruction No. 5. Defendant tried the case on the theory that there was evidence for the jury's consideration that plaintiff was the bona-fide owner of the property taken and not that such evidence was true or conclusive. I, therefore concur in reversing the judgment and remanding the cause as to the recovery of actual damages.
I do not concur in what Judge TRIMBLE says in reference to the instruction on exemplary damages. The word "allow" is not a technical term and the jury was as well qualified to pass upon the meaning as are we. The word is not equivalent to the word "must" and is in no sense a command. I am not convinced that the jury was misled when it read together the two instructions on this subject. However, I am, by no means, saying that the instruction containing the word "allow" is approved as a model for future use.
I think that Judge TRIMBLE has fairly stated the evidence bearing on the question of exemplary damages and while I do not agree in all of his comment in reference to the same. I do agree that there was *Page 735 not sufficient evidence to submit to the jury that element of damage. I therefore concur in reversing the judgment in toto and remanding the cause.