Brown v. Master

104 Ala. 451

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

McCLELLAN, J.

Margaret Master is plaintiff and Annie brown is defendant in this action. The complaint contains two counts. The first count alleges that the defendant, being the landlord of the plaintiff in respect of a storehouse which the latter occupied with a stock of merchandise, made an affidavit for an attachment against the property of plaintiff in said store, stating therein as the ground for said attachment that the tenant had “made substantially a transfer” of the stock of goods in the store so rented from affiant, without her consent and without the rent for said store having been paid; and that upon said affidavit, “the defendant wrongfully and vexatiously and maliciously caused an attachment to issue against the estate of the plaintiff’ ’ out of the office of the justice of the peace before whom the affidavit was made, “and wrongfully, vexatiously and maliciously caused said attachment to be levied upon a large amount of personal property belonging to the plaintiff, in value many times the amount of the debt for the collection whereof said attachment was sued out.” This count further avers that the ground of attachment alleged in the affidavit did not exist, and that the defendant did not have any probable cause to believe that the ground so alleged did exist. Damages are claimed for that the defendant, under color of said attachment, entered plaintiff’s storehouse and wrongfully and maliciously stopped plaintiff’s business, greatly mutilated and disarranged and injured plaintiff’s stock of goods, and broke up and destroyed her business, injured plaintiff’s credit as a merchant, and took away or caused to be taken away a large quantity of plaintiff’s goods, and detained them for several months, and so kept said goods while detaining them as to greatly depreciate their value.

The second count claims damages “for a willful and malicious wrong committed by the defendant upon a certain lease-hold' interest in real estate then and there owned and possessed by the plaintiff, and upon certain personal property then and there in possession of the plaintiff,’ ’ in that the defendant sued out said attachment, and “willfully, wrongfully, knowingly and maliciously caused the same to be levied upon property of the plaintiff kept in her said store in the conduct of her business as a part of her mercantile stock, worth many times the amount of the debt upon which said attachment was sued out, and did cause said large and excessive amount of property to be kept and detained from the plaintiff for a long time, and by reason thereof said property was damaged and injured, and the value thereof greatly reduced; and did cause said attachment to be levied in an arbitrary, rude and angry manner;” and in that, further, the defendant, under the pretense of having the right so to do by virtue of said attachment proceeding, did “knowingly, willfully, wrongfully and maliciously enter upon plaintiff’s possession of said store,.in plaintiff’s absence, and while her business was being then and there conducted by her clerks, and stopped her business and closed up her store, and mutilated and damaged her stock of goods, and thereby injured and damaged plaintiff’s property, and broke up her business, and injured and destroyed her credit as a merchant,” &c., &c.

1. It is'first to be observed that neither count of the complaint is upon the attachment bond. The first is clearly an action on the case for malicious prosecution. The second is an action on the case for malicious abuse of process and rude and aggravating misconduct under color of the attachment writ. Several assignments of demurrer were laid against each count. The first assignment against the first count is, that “it fails to negative or deny that any statutory ground existed for the issuance of the attachment.” It does negative, as we have seen, the existence of the statutory ground stated in the affidavit. This, in our opinion, was sufficient. There is, we take it, a prima facie presumption of law that if any one of the grounds upon which the statute authorizes the issuance of an attachment exists it is that one which is stated in the complaint, since it can not be supposed that the plaintiff in attachment would state a ground which did not exist when he might have stated one which did exist; and hence prima facie the negation of the ground stated is the negation of all basis for the issuance of the writ. And while it is true that proof of the existence of any other of the grounds will serve the defendant in actions like this as well as proof of the specified ground, such proof goes to overturn the prima facie case made by the complaint, is purely defensive in its character, and the initiative and burden in respect of it is upon the defendant. — Baxley v. Segrest, 85 Ala. 183 ; Gabel v. Hammerwell, 44 Ala. 336.

2. A like presumption prevails in relation to the existence of probable cause. If the defendant did not have probable cause for believing that the ground he states in his affidavit existed there is an inconclusive presumption, sufficient, until rebutted, for all the purposes of the plaintiff, that he was without probable cause for believing that any ground did in fact exist, since it is unreasonable to suppose he would have stated facts which he had no probable cause to believe to be true, when he might have stated facts which he had such cause to believe to be true, and which would equally have served his immediate purpose, and also have saved him from ultimate liability for the absence of probable cause for the statement he in fact made. So that we hold that the averment of this count of the complaint that the defendant had no probable cause to believe the facts laid in her affidavit, as constituting a ground for the issuance of the attachment, is prima facie a negation of probable cause to believe the existence of any ground for the writ, and that while probable cause in respect of some other ground may be shown, it will be defensive matter and the evidence of it must come from the defendant.

3. Moreover, it would seem that the avex’ment of this count that the writ was wrongfully, vexatiously and maliciously sued out is the negation of all probable cause, as this averment can not be true if there was probable cause for the believing that any one of the statutory grounds existed. — Kirksey v. Jones, 7 Ala. 622.

4. A further objection urged by the demurrers to the first count is, that it is “ambiguous and uncertain in stating several distinct causes of action without disclosing which one is relied on in support of plaintiff’s claim, to-wit: 1. For causing said attachment to be issued without sufficient affidavit. 2. For wrongfully causing it to be issued. 3. For wrongfully causing the same to be levied. 4. For excessive levy. 5. For improper conduct in making the levy.” There is at most but an innuendo in the complaint that the affidavit for the attachment was not sufficient to authorize its issuance; and nothing whatever is claimed on that account. The other matters specified in this assignment of demurrer are all component parts of the malicious prosecution alleged in the complaint, for every act maliciously done in which the plaintiff, if she prove her case, would be entitled to recover. In many jurisdictions, indeed, this action can not be maintained in respect of a civil prosecution unless a levy has been made, and, whether'we should so hold or not were the question before us, the principles underlying that view lead also to the conclusion that, even where the contrary is held as to the necessity of a levy, the levy when made and the manner of it are .but parts of the same prosecution for maliciously instituting which the action on the case is brought. — 14 Am. & Eng. Encyc. of Law, pp. 32, et seq. (

5. We do not, as has been indicated, understand the second count of the complaint to charge that the attachment was wrongfully and maliciously sued out by the defendant without a sufficient affidavit as is assumed by the demurrers to this count; but to the contrary, that count is for the malicious, wrongful and vexatious abuse of process which has been legally and rightfully issued. Had there been no writ, or had the writ, under color of which the defendant entered upon the leasehold-premises of the plaintiff and took and carried away and detained ■ and injured plaintiff’s goods, been void on its face, the defendant would have been liable to an action of trespass quare clausum fregit et de bonis asportavit. — Herndon v. Bartlett, 4 Port. 481; Southern Suspender Co. v. Van Barries, 91 Ala. 507. But entering, as she did under a valid writ, the defendant was not a trespasser, but nevertheless liable for the wrongs which, as charged, she maliciously committed or procured to be committed upon the plaintiff’s close and the plaintiff’s personal property stored therein in an action on the case; and it is of no possible consequence whether the injuries inflicted were upon the realty or upon the personalty, or consisted in closing the plaintiff’s store, no necessity therefor in the due execution of the writ existing, or in taking away an excessive amount of personalty and so negligently keeping it as that great damage resulted to the plaintiff. All these are wrongs for which redress may be had in this form of action. — 1 Chitty Pleadings, pp. 209, et seq.

What we have said will suffice to show the grounds of our approval of the action of the court below in overruling defendant’s demurrers to the complaint as finally amended.

6. The attachment complained of was not sued out by Glennon, but by Annie Brown herself, and it is wholly immaterial what information Glennon had or the sources of it: the inquiry was what facts showing probable cause for believing that a ground for attachment against Margaret Master came to the knowledge of the defendant. The proposed evidence of Glennon as to what inquiry he made respecting the plaintiff, her character, &c., and the information he received upon such inquiry, whether the facts thus coming to his knowledge imported probable cause for an attachment or not, was properly excluded. .

But the letter from Glennon to the defendant should have been admitted. It contained facts circumstantially stated which, coming by the letter to the knowledge of the defendant, had some tendency to strengthen the circumstances already within her knowledge, according to her own testimony, going to show probable cause for believing that the tenant had transferred her stock of goods ■ without the landlord’s consent, and without paying the' rent. The court erred in excluding this letter.

'7. The fact .that Glennon sent word to the tenant, about the time the attachment was sued out,, that “if. she wanted to keep the house at the end of the lease she would have to pay” a certain greater rental than she was paying at that time, had a tendency to weaken Glen-non’s testimony as to what he said to Sullivan, the defendant’s attorney, in her presence, to the effect that plaintiff was trying to sell out her goods in solido, intending to vacate the premises at once, &c., and was properly admitted.

8. The trial court seems to have overlooked the distinction between the action for malicious prosecution, which is presented by the first count of the complaint, and an action on an attachment bond for wrongfully, or wrongfully and vexatiously, suing out the writ, in its rulings upon charges requested. No action except upon the bond lies for the mere wrongful suing out of an attachment. By virtue of the statute — Code, § 2999— an action on the bond may be prosecuted to the recovery of actual damages when the writ is wrongfully sued out, and if sued out maliciously as well as wrongfully, the jury may in addition give vindictive damages. But in the action of malicious prosecution against the plaintiff in attachment, the attachment must be wrongful, and must have been sued out with malice and without probable cause. If not wrongful, i. e., if the facts justify and authorize its issuance, if a statutory ground exists, no recovery can be had though the defendant was actuated purely by malice in suing out the writ. If wrongful, but not malicious, no recovery can be had. If wrongful and malicious but with probable cause, the action will fail. And if wrongful and without probable cause, and also without malice, no action can be maintained. There must, in other words, to authorize a recovery, be a concurrence of the three conditions — wrong, malice and want of probable cause. The wrongfulness of the issuance of the writ would at common law have to be shown by the record of the attachment proceeding, disclosing a determination of that suit against the plaintiff therein. But under our statute the defendant in attachment can not “deny or put in issue the cause for which the attachment issued” — Code, § 2999 — and it follows that the non-existence of a statutory ground for issuance of the attachment may be, indeed has to be, shown by matter de hors the record. It would seem álso to result from the consideration just adverted to, that a suit for the-malicious prosecution of an attachment suit may be instituted pending such prosecution, since no question in-

volved in the attachment proceeding can be of any moment in the action on the case for malicious prosecution. It may be, that a different rule should prevail when the wrongful ness of the attachment rests in the non-existence of a debt, since the question of debt vel non is determinable in the attachment suit; but even here, it would seem that the wrongfulness of the prosecution might also be rested on the absence of a ground for attachment, for clearly there could be no ground for the writ against a defendant who owed the plaintiff no debt. It being shown that the attachment was wrongful, that no statutory ground for its issuance existed, the plaintiff must go on and show further that there was no probable cause for believing that any such ground existed, and also that the defendant sued out the writ with malice.— 14 Am. & Eng. Ency. of Law, p. 36, note 6 ; McKellar v. Couch, 34 Ala. 336 ; Benson & Co. v. McCoy, 36 Ala. 710 ; Tucker v. Adams, 52 Ala. 254, 256; Lunsford v. Dietrich, 93 Ala. 565, and authorities there cited. Upon these principles the circuit court erred in refusing charges 3, 4 and 5 requested by the defendant.

We find no fault with the trial court’s definition of a malicious act, to the effect that whatever is wrongfully, vexatiously and purposely done is in law maliciously done; but that part of the general charge which is in these words : “If you find that the attachment is vexatiously as well as wrongfully sued out, you can give the plaintiff exemplary or vindictive damages,” while very appropriate in an action on the bond, is affirmatively bad in this case, because it pretermits all inquiry as to probable cause.

The plaintiff is not entitled to recover damages for injuries to her sister who was clerking in the store at the time of the levy, plaintiff being temporarily absent. She is entitled to have the jury consider on the inquiry of malice any threats or insulting words used by. the defendant to her said sister at the time of the levy. Whether that part of the court’s general charge on this subject, to which an exception was reserved imports the former or the latter proposition is uncertain, and therefore it should not have been given.

Charges 6 and 7 requested by the defendant are not within the rule of approval declared in Calhoun v. Han-nan & Michael, 87 Ala. 277, 285, but are within the rule of condemnation declared in Ala. Gt. So. R. R. Co.v. Hill, 93 Ala. 514. They would have required -the jury to find against the conclusion referred to, if their minds on the point were left in confusion upon it, or if they were not certain as to the truth or falsity of the mooted fact. This is to exact too high a degree of conviction. The jury should be reasonably satisfied, but they are not required to be certain of their conclusions even in criminal cases.

The judgment of the circuit court is reversed and the cause remanded.