P. T. TULLEY v. M. TRANOR et al., 53 Cal. 274

By the Court, McKinstry, J.: When this action was commenced, sec. 3336 of the Civil Code read: “ The detriment caused by the wrongful conversion of personal property is presumed to be, (1) the value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option- of the injured party; and (2) a fair compensation for the time and money properly expended in pursuit of the property.” Prior to the, trial of the cause in the District Court, the

section was amended by striking out therefrom the words : “ Or, where the action was prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party.” There can be no reasonable doubt that the amendment was intended to be applicable to a case in which the conversion had occurred prior to its passage. The general language covers all cases of wrongful conversion.

The expression “ is presumed to be ” indicates that it was intended to establish a legal presumption to operate, and which could only operate, at the trial of the cause; and sec. 286 of the amendatory act, (Amendments to the Codes of 1873-4, 268} repeals all provisions of law inconsistent with the act. It is true the same

section provides: “No rights acquired or proceedings taken under the provisions repealed shall be impaired or in any manner affected by this repeal.” But this only renders it the more apparent that, except as to rights acquired or proceedings taken under the repealed law, the amendments were intended to operate retrospectively, so as to include all cases of previous conversions. 0 Sec. 286 of the amendatory act applies to all the provisions of the act which may affect “ rights acquired or proceedings taken.” The “ proceeding ” referred to was a proceeding under the statute amended8, whereby some right had been acquired, and which could not be disregarded without affecting the right itself.

No such proceeding could be affected by the amendment to the

section under consideration. The right of the party to appeal to the rule as to damages did not depend upon the fact that he had commenced his action when the amendments took effect. The expression “ proceedings taken ” is not the equivalent of “ suit commenced ”; for if plaintiff had not a vested right to damages according to a certain standard before the action was brought, the mere commencement of the action did not create a new and vested right.

In the present case, therefore, there is no question as to the validity of any proceedings prior to the time when the amendment to sec. 3336 took effect; nor can it be seriously claimed that the amendment—construed as applicable to plaintiff’s case —is repugnant to the Constitution of the United States, because violative of the “ obligation of a contract.” The only question to be considered, therefore, is whether the plaintiff will be deprived of a vested right if the amendment be held to be applicable to his case. “A retrospective statute affecting and changing vested rights is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void.

But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair'contracts or disturb absolute vested rights, and go only to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.” (1 Kent’s Com. 455.) It may be assumed (for the purposes of this decision only) that plaintiff, having suffered an injury for which the existing law afforded him a remedy, could not have been deprived by legislative act of every means of redress.

But the rule found either in the first or second clause of sec. 3336 of the Civil Code, as it stood prior to the amendment, is arbitrary. It does not purport to supply a standard by which exact compensation may be determined in every case. “ The detriment shall be presumed to be” that is to say, “it is impossible to determine the exact amount of injury; it cannot be said in a given case that the party injured would have retained his property until the date of the trial of the action had it not been converted, or that he would have sold at the highest price or the lowest price.

It is better then to fix a rule of damages—one in itself simple, and which on the whole shall approximate the actual damages.” We can conceive of no principle of constitutional law which is violated by a change in this rule, unless, at least, the new rule on its face deprives the party of every reasonable method of securing just compensation.

No case has been referred to in which it has been held that to change an arbitrary and statutory rule of damages in cases of tort was a deprivation of any vested right of one who had previously suffered the wrong, and we can see no reason„why it should be so held, even if it should be made to appear in a particular case that the plaintiff would not recover as much as he would have done had the former rule been continued. In the present case the District Court did not find the value of the property at the time of the conversion.

It is urged by respondent that it is unnecessary to inquire as to the rule of damages, inasmuch as the answer admits the value of the property to be more than the sum recovered. The averment in respect to the value constitutes an entire paragraph of the complaint, thus: “IV". That the said described property was and is of the value of fifteen, thousand dollars.” The answer denies that the property “ was and is of the value of fifteen thousand dollars, as alleged in

article four of said complaint.” The idea in the mind of the pleader seems to have been that the complaint, (construing it more strongly against the plaintiff) did not allege the value at the date of the conversion, but only at some indefinite period anterior to the commencement of the suit. At the trial, however, the complaint was treated by both parties as containing an averment of the value at the time of the conversion, and both parties treated the answer as containing a denial as broad as the averment of the complaint.

The plaintiff proceeded to prove the value at different dates between the conversion and the day of the trial. The defendant objected to any evidence of value except as of the date of conversion, which objection was overruled by the Court, and the defendant excepted. During the trial no claim was asserted .by plaintiff based upon the admission of the answer in respect to the value of the stocks.

If this had been done, defendant might have amended his answer; and we have repeatedly held that where a cause has been tried in the Court below upon the theory of an issue joined, a plaintiff cannot here for the first time demand judgment upon the admissions of defendant’s plea.- For the error in admitting evidence of the value of the property at dates subsequent to its conversion, the judgment and order is reversed, and cause remanded for a new trial. Mr. Justice .Rhodes did not express any opinion.