Wray v. Great Falls Paper Co. Book Reviews

Wray v. Great Falls Paper Co. by Supreme Court of Montana Book Summary

Conversion ? Exemplary Damages ? Malice ? Husband and Wife ? Separate Property of Wife ? Constructive Notice in Attaching Creditor ? Complaint ? Sufficiency ? Surplusage ? Trial ? Instructions ? Law of Case. Conversion ? Exemplary Damages ? Malice ? Instructions. 1. In an action in conversion in which exemplary damages were asked, an instruction defining the terms "actual" and "presumed" malice held not open to the objection that it authorized an award of punitive damages for malice in law as well as malice in fact. Same ? Malice ? How Established. 2. Malice may be established either by direct or circumstantial evidence, and when once established, the result is the existence of malice, not malice in law nor malice in fact. Trial ? Instructions ? Abstract Rules of Law Improper. 3. An instruction stating mere abstract rules of law without applying them to the facts of the particular case should not be given. Conversion ? Husband and Wife ? When Attaching Creditor Chargeable With Constructive Notice of Wifes Claim to Property Attached ? Exemplary Damages. 4. Evidence in an action for the conversion of restaurant fixtures claimed by the wife of a judgment debtor as her separate property and seized by the attaching creditor with constructive notice of plaintiffs claim by reason of an inventory filed by her under section 5749, Revised Codes, over plaintiffs protests and objections, thus destroying a prosperous business in an effort to coerce her to pay her husbands debt, held sufficient to warrant an award of exemplary damages. Same ? What Constitutes. 5. Any distinct act of dominion wrongfully exerted over ones property in denial of his right or inconsistent with it is a conversion. Same ? Complaint ? Sufficiency ? Surplusage. 6. Complaint in an action for conversion alleging that plaintiff on a given day was the owner and entitled to the possession of - Page 462 the chattels in question, describing and giving their value; that on that day the defendant wrongfully took and carried them away, refused to restore them after demand and wrongfully deprived plaintiff of their possession and use, to her damage, etc., was sufficient to state a cause of action, the unnecessary subsequent allegation of ownership and possession in plaintiff at the time of verification of the complaint not destroying the cause of action already stated. Trial ? Instruction Given Without Objection ? Law of Case. 7. An instruction given without objection becomes the law of the case, whether technically correct or not. Same ? Conflicting Instructions Reversible Error. 8. The giving of conflicting instructions constitutes reversible error, hence refusal of an instruction directly contradictory of statements contained in one given was proper. Conversion ? Possession of Property ? Presumption of Ownership ? Proper Refusal of Instruction. 9. The presumption declared by subdivision 11, section 10606, Revised Codes, to the effect that "things which a person possesses are owned by him" has reference to the present and not to the past; therefore an offered instruction in an action in conversion that if plaintiffs husband was in possession of the property in question prior to the time it was attached, the law presumes that he and not plaintiff was its owner, was properly refused.

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