1. A Sheriff who willfully acts contrary to the law while in the discharge of his duties, is liable in vindictive damages. (Duke of Brunswick v. Slowman, 8 Man. Gr. & Scott, 317; Joyce v. Barney , 20 Vt. 124; 14 Mo. 105; Ayers v. Bartlett, 9 Pick. 160; Lindsley v. Bushnell , 15 Conn. 229; 1 Dev. & Batt. 440; 3 Cal. 440.) Scannell knew Rosanna Gilbert had no interest in the property seized, and permitted himself to be made themere tool of Crowther
2. The instruction as to recaption was properly refused. There was no evidence at all tending to show a joint recaption. After the taking by appellants, respondent never had any possession of or any benefit from the property. Crowther became the purchaser at the sale. All joint possession was broken up and destroyed by this very trespass.
The respondent completely abandoned the property to the wrong-doers, as he might lawfully do after the taking.
If the property was recaptured by McCombe after the sale, and the recaption could be on the joint account of any one, it would be on the joint account of himself and Crowther--the purchaser at the sale--so that under no circumstances were appellants entitled to the instruction asked. But there is another answer, conclusive in itself--no recaption is pleaded.
3. Plaintiff had a right to prove the retail value. (Coolidge v. Choate, 11 Met. 79.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
The complaint in this case charges the defendants Scannell and Crowther with the seizure and conversion of certain goods and chattels belonging to the plaintiff and one McCombe. McCombe, refusing to unite with the plaintiff in bringing the suit, was made a defendant, in accordance with the fourteenth section of the Practice Act. The trespass is charged to have been committed willfully and with malicious motives, and various matters are set forth in the complaint as grounds of special relief. The complaint states, among other things, that the plaintiff and McCombe were merchants, and that the property taken constituted their stock in trade; that in consequence of the taking their business was broken up and destroyed, and that the plaintiff was greatly injured in his credit and reputation as a merchant. Ten thousand dollars are claimed as his proportion of the damages, and the suit is brought for the recovery of that sum.
On the trial of the case, the plaintiff, in proving the damages, was allowed by the Court to give in evidence the retail value of the goods; the defendants objecting in general terms to the introduction of this evidence. The action of the Court in that respect is assigned as error; but the plaintiff claims that if an error was committed, the defendants are not in a situation to take advantage of it. He contends that a general objection is not sufficient to support the assignment, and that in all cases a specification of the grounds of an objection is necessary to render it effectual. The defendants claim that the evidence was not admissible for any purpose, and that a statement of the grounds upon which it was objected to would have been superfluous, and was not therefore required. This view is based upon what appears to us to be the proper rule in such cases, and we see no good result to be accomplished by holding parties to a more strict and rigid practice in these matters. The Practice Act provides that where an objection is made and an exception taken, the point of the exception shall be stated; but it does not follow that a general objection to the admission of incompetent evidence is not sufficient. On the contrary, the incompetency of the evidence sufficiently indicates the ground of the objection, and the point of the exception is as clearly perceptible as if it were expressed in words. We do not understand the provision referred to as requiring anything more than that the point of the exception shall be so stated as to be apparent to the Court; and whether it be stated in express terms or appear by necessary implication from the nature and subject matter of the objection is immaterial. There is no doubt that a general objection to the introduction of evidence will not be available unless the evidence objected to is absolutely incompetent; but where that is the case, we do not see upon what principle such an objection could be held to be insufficient. Nothing more is required to put the adverse party upon notice that the competency of the evidence is called in question; and if an error intervene on account of its admission, we think the generality of the objection should not be received as an answer. The authorities cited on behalf of the plaintiff are not analogous to the present case, but essentially different, both in their circumstances and the principles involved. It is true, this Court, in Kiler v. Kimball , 10 Cal. 267, laid down the rule, that to entitle an objection to notice, its point must be particularly stated; but the objection there was to the admission of a bill of sale, the absolute incompetency of which did not appear. So in Martin v. Travers , 12 Cal. 243, the Court said: " The objection fails to specify the point upon which it rests, and does not merit consideration for its generality; " but the principle involved was the same as in the former case. In Waters v. Gilbert, 2 Cush. 27, it was contended that a memorandum attached to a deposition had been improperly read as a part of the deposition, but the Court said: " No specific objection was taken to the use of this memorandum, and a general objection to the use of the deposition is not equivalent." The inference is, that an objection in the same form confined to the memorandum alone would have been held sufficient. In Merritt v. Seaman, 2 Selden, 168, the rule adopted by us in this case was laid down and acted upon by the Court of Appeals of New York. A general objection had been taken to the introduction of evidence, and it was held that, as the difficulty could not be obviated, such an objection was all that was necessary. The same point precisely is presented in this case, and we think there is nothing in reason or propriety calling for a different determination. The evidence, say the defendants, was not admissible for any purpose; and if that be correct, the difficulty could not have been obviated, and the objection was sufficient. This brings us to the question of the admissibility of the evidence.
The defendants are sued as joint trespassers, and the same circumstances of aggravation are charged against both. Their defense is, that the property belonged to one Rosanna Gilbert, and that they took it under an attachment against her in favor of Crowther; Scannell being the officer who executed the writ. It is admitted that the evidence complained of would not have been competent, if the case had been free from circumstances entitling the plaintiff to exemplary damages, and the most that seems to be claimed is that it was properly submitted to the jury to enable them to exercise intelligently their discretion in relation to the damages to be allowed beyond the actual value of the property, with interest. But it is contended that as against Scannell, this value constituted the sole measure of relief; and that under no circumstances can exemplary or vindictive damages be awarded against an officer for an act done in the discharge of his official duties. If by this is meant that every act committed by an officer under color of process is to be considered for the purposes of relief without reference to the motives which prompted it, we cannot assent to the proposition, and it has, we think, no support in the previous decisions of this Court. The case of Phelps v. Owens , 11 Cal. 22, is relied upon as authority to that effect, but such has never been our understanding of the doctrine laid down in that case. The decision was placed expressly upon the ground of the absence of any circumstance of malice or oppression, and there is nothing in the opinion which justifies the inference that such a circumstance would have been regarded as immaterial. We had occasion to examine the law upon this subject in Dorsey v. Manlove , 14 Cal. 553, and we see no reason to be dissatisfied with the views there expressed. We think an officer is no less responsible for the consequences of a malicious act than a private person, and the effect of a different rule would be to turn loose upon every community a set of licensed wrong-doers. In the present case, the malicious character of the act is distinctly charged, and if the facts disclosed by the record were sufficient to sustain this charge, we should have no difficulty in holding the case to be a proper one for exemplary damages. But we are unable to discover any proof supporting the charge as against Scannell, nor can we find in the record a single fact from which it can reasonably be inferred that his conduct was influenced by any improper motive. As against Crowther the evidence appears to be conclusive, but it is clear that Seannell cannot be made the victim of his malice, and visited with the consequences of a motive to which he was a stranger. The plaintiff claims that the rule in such cases is different, and that the damages are to be estimated according to the amount which the most culpable party ought to pay. There are no doubt cases in which this is the only practicable rule, but it is evident that the case at bar does not belong to that class. There is no case in which it has been held that the motives of one person might be given in evidence in aggravation of damages against another. " It is difficult," said Pollock, C. B., in Clark v. Newsam, 1 Exch. 130, " to say that there are no cases in which the motives of the parties would be important, still I think it would be very unjust to make the malignant motive of one party a ground of aggravation of damage against the other party, who was altogether free from any improper motive. In such case the plaintiff ought to select the party against whom he means to get aggravated damages." We might safely rest the determination of the case upon this point, but we are satisfied that in any view which can be taken of the matter the evidence objected to was incompetent. The object was to recover damages on account of the profits which the plaintiff might have realized upon a sale of the goods. There may be cases in which it would be proper to award damages upon the basis of a calculation of profits, but in this case there were no data for the calculation to proceed upon. The subject was so involved in uncertainty that it was impossible for the jury to be informed of all the circumstances necessary to enable them to arrive at a correct conclusion. There was no criterion by which an estimate could be made, and the least that can be said is that the calculation must have proceeded upon conjectures and not upon facts. Besides, the most that the plaintiff could claim was the right to show the value of the business which he alleged had been broken up and destroyed. This value depended upon the general profits of the concern, and not upon the profits which might have been realized from the sale of these particular goods. But in any view of the case, the impossibility of showing what these profits might have been was sufficient to preclude the introduction of evidence upon the subject.
We are of opinion that the instruction asked in regard to the recaption of the goods should have been given. The recapture by McCombe inured to the benefit of the plaintiff to the extent of his interest, and damages for the value should not have been allowed. In this respect, the case falls within the principle laid down by this Court in Kimball v. Gearhart , 12 Cal. 27. It is immaterial whether the recaption was after or before the commencement of this suit, or in what manner it was effected. The trespass did not divest the title, and when McCombe acquired possession of the property, he held it for the plaintiff as well as himself. They owned it in partnership, and the possession of one was the possession of the other. The evidence was admitted without objection, and under the stipulation dispensing with an answer, we cannot disregard it.
Judgment reversed, and cause remanded for a new trial.