Cooper v. Scyoc

79 S.W. 751, 104 Mo. App. 414, 1904 Mo. App. LEXIS 499

• Court: Missouri Court of Appeals
• Decided: February 16, 1904
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts “as above.) — 1. Should the plaintiff have been nonsuited at the close of his evidence 1 The evidence is so clear and convincing as to leave no reasonable doubt that the defendant maliciously directed the repeated service of summons on the railroad company as garnishee, when he had no reasonable ground to believe that anything could be collected from the railroad company as the debtor of the plaintiff, and knew that the wages of the plaintiff he sought to garnish were exempt from process of garnishment, and that his purpose in having repeated service of summons on the railroad company, as garnishee, was to either force the plaintiff to pay the judgment and costs, or to so annoy the railroad company with process of garnishment as to cause it to discharge plaintiff from its employ. It is contended by the defendant, however, that conceding he was actuated by express malice and that his purpose was to oppress the plaintiff, and that he knew the process of garnishment would not be available for the collection of the judgment or any part of it, yet he had a legal right to order the executions and to have them renewed from time to time and to order the constable to garnish the railroad company, and being possessed of this legal right he can not be mulct in damages for the exercise of it, notwithstanding his motive. If nothing more had been done than the mere suing out of the executions and having them served from time to time on Cooper, and if no attempt had been made to levy upon property exempt, or to garnish wages that were exempt, no right of action could have accrued to Cooper, for it is a well-settled rule in English and American jurisprudence that an action for damages will not lie for the suing out of civil process where neither the person nor the property of the debtor is wrongfully interfered with. See 21 American Law Register, 281 and 353, where the authorities on this point are reviewed at length by John W. Lawson, Esq. But where the property of the defendant has been unlawfully taken by execution, or has been impounded by process of garnishment, and the taking or impounding of it was malicious and without probable cause to believe that it might be lawfully taken or impounded, and the defendant is prejudiced thereby in person or property, it seems to us it furnishes a foundation for an action.

In Churchill v. Siggers, 3 El. & Bl. l. c. 936, Lord Campbell said:

“To put into force the process of the law maliciously and without any reasonable or probable cause is wrongful; and if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action on the ease. Process of execution on a judgment seeking to obtain satisfaction for the sum recovered is prima facie lawful; and the creditor can not be rendered liable to an action, the debtor merely alleging and proving that the judgment had been partly satisfied and that execution was sued out for a larger sum than remained due upon the judgment. Without malice and the want of probable cause, the only remedy for the judgment debtor is to apply to the court or a judge that he may be discharged, and that satisfaction may be entered up on payment of the balance justly due. But it would not be creditable to our jurisprudence if the debtor had no remedy by action where the person or his goods have been taken in execution for a larger sum than remained due on the judgment, this having been done by the creditor maliciously and without reasonable or probable cause: i. e. the creditor well knowing that the sum for which execution is sued out is excessive, and his motive being to oppress and injure the debtor. The court or judge, to whom a summary application is made for the debtor’s liberation, can give no redress beyond putting an end to the process of execution on payment of the sum due, although, by the excess, the debtor may have suffered long imprisonment and have been utterly ruined in his circumstances. ’ ’

A case in its facts on all fours with the one at bar is Nix v. Goodhill, 95 Iowa 282, where it was ruled that an action will lie against one who maliciously and with-, out probable cause, garnishes the exempt earnings of his debtor, knowing them to be exempt, for the purpose of harrassing the .latter’s employer, thereby compelling him to pay out of such exempt money in order to avoid discharge. See also Bartlett v. Christhilf, 14 Atl. (Md.) 518, and 1 Addison on Torts (4 Ed.), 755; Crownfeldt v. Arrol, 50 Minn. 327; Lynd v. Jones, 7 Minn. 184; Harrington v. Smith, 14 Colo. 376.

On principle, an action for wrongfully, maliciously and without probable cause levying an execution upon exempt property of the debtor or garnishing his wages that are exempt, can not be distinguished from an action for maliciously and without probable cause levying an attachment against a debtor or garnishing his exempt property. Both are equally an abuse of judicial process. While a judgment creditor may have executions issued to all counties in the State in which his debtor has property subject to be taken on execution, and while he may with malice in his heart remorselessly pursue the property of his debtor for the satisfaction of his debt with impunity, provided he demands no more than is due, does not direct an excessive levy, or the levy and seizure of property exempt from execution, yet if he directs the officer to seize and levy upon property of the debtor that the law exempts from execution, and the officer makes the levy and seizure, both he and the creditor would be guilty of trespass and be jointly and severally liable to the debtor for the damages. If instead of seizing and levying upon exempt tangible property, the officer, by instructions of the creditor who is prompted by malice, impounds the wages of the debtor that are exempt from garnishment by summoning his employer as garnishee, and the creditor knows that the wages to be impounded are exempt, it seems to us, is as gross an abuse of judicial process as in the case of the levy and seizure of exempt tangible property. While the damages might not be so great as in the case of levy and seizure, yet there would bé an abuse of the process, a wrong done and an injury inflicted to the debtor for which the law should afford some remedy. A discharge of the garnishee by the court and the taxing of the costs of the garnishment to the creditor would not be an adequate remedy, in fact, no remedy at all for the wanton abuse of the process of the court, no remedy to the •debtor for his loss of time and expense in defending ■against the garnishment, nor any compensation to him for the willful and malicious attempt of the creditor to wantonly and wrongfully deprive him of his property under the guise of judicial process. We think the remedy resorted to by the plaintiff in this ease is the only adequate one, and that it is sanctioned by law, therefore, we conclude that the petition states a good cause of action and the demurrer to the evidence and motion in arrest of judgment were properly overruled.

2. In respect to the admission of the summonses •or notices of garnishment and the returns of the constable thereon as evidence or proof of the fact that the railroad company had been garnished, it is pertinent to remark that the constable was not the plaintiff’s agent, that plaintiff had no control over his actions and was not responsible for any omissions of that officer to make proper indorsements on the executions. Section 4042, E. S. 1899, provides that garnishees on an execution issued by a justice “shall be summoned in writing as garnishees,” etc. The summonses issued and served •on the railroad company conformed to this statutory provision and the constable’s return on them showing that they had been served on the garnishee are, it seems to us, the.original evidence of the fact of the service of process of garnishment, and that the indorsement of the fact on the execution would be but cumulative evidence.

3. Defendant objected and excepted to the instructions given for plaintiff and especially complains of the following of the series:

“1. If the jury shall believe and find from the evidence that at the time of the delivery to the railroad companies of the notices of garnishment in evidence the plaintiff resided in this State and was the head of a family as explained in instruction No. 2, then the court instructs the jury that plaintiff’s employees were not chargeable as garnishees on account of wages due plaintiff for the last thirty days service next before the service of such garnishments and the defendant had no right to cause plaintiff’s employer to be summoned as garnishee on account of such wages due plaintiff or to attempt to subject them to the payment of defendant’s judgment.

“3. If the jury shall believe and find from the evidence that defendant caused and directed the Hannibal and St. Joseph Railroad Company to be summoned as garnishee of the plaintiff at the time of the several garnishments in evidence on the original execution in evidence, and that at the time of the service of said garnishments the plaintiff was an employee of the said railroad company working for wages, and that he resided in Marion county, Missouri, and was the head of a family as explained in instruction No. 2, and that at the time of the service of said garnishments the said railroad company did not have in its possession or under its. control any property, money or effects of the plaintiff, and did not owe plaintiff any money except such as was exempt from seizure or garnishment as explained in instruction No. 1, or such as was subject to be selected and held by plaintiff as exempt as explained in instruction No. 2, and if the jury shall believe'and find from the evidence that the defendant at the time of causing or directing such garnishment to be served had no reasonable or probable cause for believing that said railroad company had in its possession or under its control, property, money or effects of plaintiff, or owed plaintiff money which might lawfully be held on such garnishments and taken in satisfaction of said execution, yet nevertheless, that' defendant caused and directed said railroad company to be so summoned as garnishee of plaintiff maliciously and for the purpose of compelling payment of his judgment out of plaintiff’s wages, at the same time knowing plaintiff’s rights of exemption herein, or that defendant caused or directed said garnishnients to be served on said railroad company maliciously and for the purpose of harassing and annoying said company and causing it to discharge plaintiff from his employment unless he paid defendant’s judgment, then it will be the duty of the jury to find their verdict for the plaintiff on the first count of the petition in this 'cause.

“7. If the jury find for the plaintiff on the first count of the petition, they should allow and assess in his favor, first, such actual damages not exceeding one thousand dollars, as under the evidence they may believe he has sustained and which will reasonably compensate him for any reasonable expenses, if any incurred by him, directly occasioned by and resulting from the defendant’s acts and conduct as shown by the evidence; and second, and in addition thereto, the jury may also allow and assess against the defendant such further sum by way of exemplary or punitive damages, not exceeding one thousand dollars, as will in their opinion, sufficiently punish the defendant for the wrong and injury done the plaintiff.

“If the jury allow exemplary damages the amount thereof must be separately stated in their verdict.

“8. If the jury find for the plaintiff on the second count of the petition, they should allow and assess in his' favor, first, such actual damages, not exceeding one thousand dollars, as under the evidence they may believe he has sustained and which will reasonably compensate him for his loss of time, if any, his expenses, if any, and his loss of employment, if any, directly occasioned by and resulting from defendant’s acts and conduct as shown by the evidence; and, second, and in addition thereto, the jury may also allow and assess against the defendant such further sum by way of exemplary punitive damages, not exceeding one thousand dollars, as will in their opinion, sufficiently punish the defendant for the wrong and injury done the plaintiff.”

Instruction No. 1 properly declared the law. Plaintiff had claimed his exemption rights at the beginning and continued as the docket of the justice shows, to make his claim of exemption. Even if he had made no claim to his exempt wages, there is no evidence that he waived his right, and without a waiver they could not be subject to the process of garnishment (section 3435 R. S. 1899) nor were the wages due the plaintiff from the railroad company subject to be taken on the execution in any form after he had shown, as he did, that his personal effects and wages did not at any time exceed three hundred dollars. Section 3159, R. S. 1899; Harrington v. Smith et al., 14 Colo. 376. The criticism of the third instruction is answered by the first paragraph of this opinion. It is contended that the seventh and eighth instructions direct the jury to find punitive damages. They do not so read. They leave it to the discretion of the jury to find or not to find such damages, and as the case is one in which punitive damages may be allowed (Coleman & Newsome v. Ryan, 58 Ga. 132; Cronfeldt v. Arrol, 50 Minn. 327), we think the instruction was proper. The further objection to the eighth instruction is that it authorized the jury to assess damages for loss of plaintiff’s time after he was discharged' by the railroad company. No case has been cited, nor have we been able to find one, where in a case like this the plaintiff was entitled to damages for loss of time by being thrown out of employment. It was not in the power of the defendant to discharge him nor to compel the railroad company to do so. The act of discharging plaintiff was that of the railroad company, not of the defendant. It is true that the evidence shows that the wrongful and malicious conduct of the defendant, in annoying the railroad company by repeatedly summoning it as garnishee, was the cause that moved the company to discharge the plaintiff. The conduct of the defendant was perhaps the remote cause of plaintiff’s discharge but it was not his act and for this reason we do not think defendant is liable for his loss of time directly caused by the act of another with whom defendant was not acting in concert.

4. It is finally contended that it was the duty of the constable to have protected the plaintiff from the unlawful and oppressive use of the execution in his hands and that he erred in serving the summons of garnishment on the railroad company. All this may be granted, yet the fact remains that the constable, in all he did, obeyed the express directions of the defendant, and all he did was expressly ratified by the defendant. In such circumstances the law is well settled that the officer and the defendant are jointly and severally liable for the wrongful acts of the officer. 12 Am. & Eng. Ency. of Law (2 Ed.), p. 250; Duncan v. Frank, 8 Mo. App. 286; Kreher v. Mason, 25 Mo. App. 290; Palmer v. Shenkel, 50 Mo. App. 571; Wetzell v. Waters, 18 Mo. 396.

For error in authorizing the jury to assess damages for loss of time the judgment will be reversed and the cause remanded, unless within ten days from the date of the filing of this opinion plaintiff remits one hundred and seventy-four dollars of the actual damages awarded by the jury on the second count of the petition; if the re-1 mittitur be entered as herein provided it is ordered that the judgment shall stand affirmed for- the balance of the damages awarded by the jury on both counts.

Reyburn and Goode, JJ., concur.