Gardner v. Minea

If the jury believed the testimony of the plaintiff, it justified the conclusions, not only that the defendants caused her property to be taken, but also that they did it with full notice that she, and not W. S. Gardner, from whom they had taken a mortgage upon it, owned it, — did it without any show or pretence of right. It justified the conclusion that their taking was malicious, and in wanton disregard of her rights. It is true, each of the defendants directly contradicted her testimony so far as it tended to show that they caused the taking; but this merely made a question on the credibility of the witnesses, — a question peculiarly for the jury. They have manifestly accepted her testimony, and we see no reason for the court to interfere. The testimony of those present- at the taking, standing by itself, made a case of apparent taking by and on behalf of others than defendants; but it did not impair the force of plaintiff’s testimony as to the conversations between her and the defendants, nor did it render improper the conclusion which the jury must have drawn from those conversations as related by her, — that the defendants caused the taking. The case was a proper one for the jury.

The court instructed the jury that they might allow punitive dam*297ages if they found from the evidence that the act of the defendants (in case they found that the taking was their act) “was malicious or fraudulent or oppressive, and was of such a character as to show that they acted with a reckless disregard of the rights of the plaintiff.” This was, in substance, the definition of a case justifying punitive damages as stated by this court in Lynd v. Picket, 7 Minn. 328, (184.) From the evidence the jury might find this to be such a case. They might find that the defendants caused the'property to be taken, knowing they had no right to do so. In the ease cited, which was the ease of a levy on personal property, knowing it to be exempt, the court says: “When he seizes it with such knowledge, it is impossible to ascribe any other than a malicious motive to the act; and the jury, we think, would be justified, from that fact alone, to find that it was done for the purpose of harassing and oppressing the plaintiff. ”

What was said by the defendant to the witness Hawthorne the day after the taking was in no sense a part of the res gesta. The transaction was then fully completed, and the rights of the parties to the cause of action were fixed.

The attempt to impeach the verdict by the affidavits of jurors comes within the rule in Knowlton v. McMahon, 13 Minn. 358, (386.) No other assignment of error need be specifically mentioned.

Order affirmed.

Note. A motion for a reargument of this case was denied November 10, 1891.