Askin & Marine Co. v. King

116 So. 804, 22 Ala. App. 452, 1928 Ala. App. LEXIS 134

• Court: Alabama Court of Appeals
• Decided: April 17, 1928
• Docket: 6 Div. 171.
• Status: Published

Opinions

Appellant was the defendant in the court below, and appellee the plaintiff. We adopt as the basis of what we shall have to say the statement of facts contained in appellant's brief, filed on this appeal, viz.:

"Defendant runs a ready-to-wear clothing business in the city of Birmingham, Ala. A woman who claimed to be the wife of the plaintiff went to the defendant's place of business and purchased an article of merchandise and had it charged to the plaintiff, and the bill was never paid. In March, 1925, defendant brought suit and garnishment against the plaintiff for this debt, $20.95. Plaintiff then appeared at the defendant's store and claimed that the woman was not his wife and had no authority to have the bill charged to him, and the defendant thereupon, immediately and without controversy, released the garnishment. Later, after the garnishment had been released and the plaintiff had collected his wages, plaintiff brought suit against the defendant, claiming that the garnishment was wrongful, malicious, and without probable cause. The case was tried before a jury and resulted in a verdict in favor of the plaintiff for $300. Defendant made a motion for a new trial, and this was overruled, and now defendant prosecutes this appeal."

Actions of this nature are actions on the case, and governed by the same principles as an action for malicious prosecution. Ala. Co. v. Norwood, 211 Ala. 385, 100 So. 479; McCarty v. Williams, 212 Ala. 232, 102 So. 133. Hence the case of City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, and authorities consonant therewith are without application. Ala. Co. v. Norwood, supra. It follows that the objections taken to the single count of the complaint, by demurrer, are without merit, and the demurrer was properly overruled.

Appellant complains aggressively at the action of the trial court in leaving to the jury the determination of the question of whether or not there was probable cause for believing the issuance of the writ of garnishment necessary. It would seem that technically its criticism is justified. Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651. But waiving, as immaterial, any dispute in the testimony, and assuming as true the version of the facts as given by appellant's witnesses, we are persuaded that they fail to form a satisfactory basis for the existence of probable cause. Hence any error committed by the trial court in leaving this question to the jury could not have been other than beneficial to appellant.

The testimony elicited, over appellant's objection, from the appellee's two witnesses Bryant and Cowart seems all to fall within the protection of the rule announced in the case of Bell et al. v. Seals Piano Organ Co., 201 Ala. 428, 78 So. 806, to wit:

"Credit being a conclusion of fact, partly based on opinion founded more or less on reputation and partly on personal observation and knowledge of the collective fact, a witness having knowledge of the collective fact may testify to the inferential fact of damage to credit."

We therefore hold that the trial court committed no reversible error in overruling the appellant's objections to any of the series of questions put to these two witnesses calling in a general way for information as to the damage to appellee's credit or credit standing.

What we have said above seems to dispose of those contentions of appellant which have been more strongly urged upon us in brief as being based upon matters constituting error to reverse. All the assignments argued have been carefully considered, and we do not find any of them to be based upon rulings which constituted prejudicial error. The verdict of $300 we do not think so excessive as to warrant any revisory action at our hands.

Note: The foregoing opinion expresses the views of RICE, J., of this court, to whom this case was assigned. The majority, however, are not in accord therewith, as shown by the following opinion: