MILLER et al.
CONDON et ux
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Clark & Clark, of Phoenix, for appellants.
Moore, Romley & Roca, of Phoenix, for appellees.
Kelly, Superior Judge. Stanford, C. J., and Udall, J., concurring.
Kelly, Superior Judge.
[66 Ariz. 35] Appellees were plaintiffs in the court below, and appellants were defendants. They will be so referred to herein. Plaintiffs sued upon two claims -- for damages for the alleged conversion of personal property consisting of household furniture and other personal effects, and for their alleged wrongful eviction from a home. The personal property was in the home when defendants took possession of the realty, and it was crated, moved, and stored at the cost of defendants under the circumstances hereafter related and in the process some items of the personal property [66 Ariz. 36] were lost to plaintiffs, and substantial expenditures were entailed upon them before any of it was recovered. In addition to their actual losses they also sued for the recovery of punitive damages.
The verdict of the jury was in favor of plaintiffs in the sum of $ 6,417.20, and judgment was entered upon the verdict.
Though defendants established in their proofs the expenditure of a substantial sum in caring for the personal property after it was taken into possession by them, and asked recoupment therefor, this matter was withdrawn from the consideration of the jury. No instruction was given authorizing the award of exemplary damages.
Upon motion for new trial an order was made granting the motion upon the subject of damages only, conditioned upon the filing by plaintiffs of a remittit damna in the sum of $ 5,300. The remitter was filed, final judgment entered in the sum of $ 1,117.20, and new trial denied. Defendants have brought this appeal.
The principal assignment of error relied upon for a reversal is the giving of this instruction: "I instruct you that as a matter of law the defendants did not have a legal right to enter upon and take the plaintiffs' property at the time and in the manner the same were (was) taken. Therefore you are instructed that all expenses which a preponderance of the evidence shows were necessarily incurred by the plaintiffs as a direct and proximate result of having been evicted, the plaintiffs are entitled to recover."
As a corollary to this assignment it is urged by appellant that it was error to fail to instruct the jury that it might consider the claim of set-off or recoupment for the outlay, as above mentioned, of defendants.
Appellants also urge, and quite independently of the assignments already referred to, that the amount of the verdict is so disproportionate to the recovery allowed by the court as to manifest that it was given under the influence of passion and prejudice, that the remitter does not cure it of this inherent vice, and that to allow the ...