W. B. Moses & Sons v. Lockwood

295 F. 936, 33 A.L.R. 1467, 54 App. D.C. 115, 1924 U.S. App. LEXIS 3258

• Court: District Court, District of Columbia
• Decided: January 7, 1924
• Docket: No. 3788
• Status: Published

Opinions

SMYTH, Chief Justice.

Moses & Sons, a corporation, defendant below, having a claim against one Moore, caused an automobile to be attached by the marshal on the assumption that it belonged to him. Lockwood, asserting it was his, instituted a proceeding under section 462 of the District Code to have determined whose property it was, and obtained a finding in his favor. Thereupon he brought this action to recover $5,000 damages, on the basis that the attachment was sued out by the defendant wrongfully, maliciously, and without probable cause. He recovered a verdict for $800, upon which judgment was entered, and defendant appeals.

Many errors are assigned, but they may be disposed of under four heads, viz.: (1) Should the court have directed a verdict for the defendant on the ground that it had acted upon the advice of counsel? (2) Was there proof of malice and want of probable cause? (3) Was there any evidence of damage? (4) Was an improper measure of damages adopted by the court?

1. With respect to the advice of counsel, the testimony was in substance that one Mason, a representative of the defendant having the Moore claim for collection, consulted counsel and laid before him all the facts known to him in regard to the matter; that the counsel stated he was consulted in regard to-the case, and that the facts were given to him practically as testified to by Mason. This was all. It will be noticed that Mason did not say he or any other agent of defendant relied on or received advice of counsel. He simply says that he consulted counsel, and the counsel goes no further than to confirm this statement. This is not enough.

In Staples v. Johnson, 25 App. D. C. 155, 160, a case for malicious prosecution, the court approved an instruction to the effect that, if the jury found that the defendant acted on the advice of counsel, under an honest belief that he was taking such action as was warranted by law, he having first given a full statement of the facts of the case to counsel, the verdict should be for the defendant. The Supreme Court of the United States, in Stewart v. Sonneborn, 98 U. S. 187, 196, 25 L. Ed. 116, a malicious prosecution case, announced a similar doctrine. It was there alleged that defendants wrongfully and maliciously instituted proceedings in bankruptcy against the plaintiff. Defendants rejoined that in bringing the proceedings they acted upon the advice of counsel, and they requested the court to charge in substance that, if the jury believed that they did so act, in the honest belief that they were taking and using only such remedies as the law provided for the collection of what they believed to be a bona fide debt, having first given a full statement of the facts of the case to counsel, then there was not such malice, in the wrongful use of legal process by them as would entitle the plaintiff to recover in the form of action which he had adopted. The trial court refused the instruction, but the Supreme Court held that it embodied a correct statement of the law, and reversed the case on account of the refusal. It is only under facts such as those outlined in the foregoing cases that the advice of counsel may be relied on as a defense in a malicious prosecution case. Since the record here does not contain, as we have shown, the necessary facts, there was no error in refusing to sustain defendant’s motion for a peremptory instruction.

2. Plaintiff, having alleged that the attachment was levied maliciously and without probable cause, had, of course, the burden of establishing his charge. Carroll v. Parry, 48 App. D. C. 453, 461. But this does not mean, as counsel seem, to imply, ,that there must be direct proof of the allegation. It was open to the jury, as the learned trial justice instructed, to say, from a consideration of all the evidence, whether or not the charge had been made out.

3. The court, at the request of the plaintiff,' charged the jury that in determining the damages sustained by the plaintiff they might “consider the rental value of said automobile for said period of detention as a measure to ascertain the amount of damage sustained by plaintiff,” and added, in substance, that the loss was to be determined by that rule. It is familiar law that an instruction must have some support in the evidence, else it should not be given. District of Columbia v. Gray, 1 App. D. C. 500; Washington, Alexandria, etc., Railway Co. v. Lukens, 32 App. D. C. 442; Washington Railway Co. v. Downey, 40 App. D. C. 147, 155; and Sweeney v. Erving, 228 U. S. 233, 242, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905. We think there was no testimony in this case showing, or tending to show, the rental value of the Lockwood automobile. It had been sold to Moore, according to plaintiff’s witnesses, then to a person who returned it because it was not as represented, and afterwards found its way into Lockwood’s hands. Without contradiction, the testimony showed that at the time of the levy the upholstery and the window shades were badly soiled and torn, the paint was in poor condition, and, in general, the car was sorely in need of repairs; that it would be necessary to spend $500 or $550 upon it; and that, after having done this, it would not be worth to exceed $1,400 — in other words, that the value of the car at the time mentioned was not over $900. There is also testimony, undenied, that if the paint of a car was in bad condition it would be hard to rent it at any price. It was, then, the rental value of a car of this kind which was being investigated.

Lockwood said that he had interviewed a number of automobile dealers, who wanted $30 a day for a car with a chauffeur, but did not say what kind of a car they had in mind. According to another witness, the fair rental value per week of a Roamer sedan a year old, condition not given, would be $145. Still another witness said that a Jordan car would rent for $50 a week. None of the witnesses testified what a Roamer sedan, in the condition in which the unchallenged testimony showed that this car was, would bring, if rented. It needs no discussion to demonstrate that the rental value of a high-priced car would be much greater than that of a dilapidated Roamer, and that the rental value of a car in good condition and of a different type from that of the plaintiff’s could have no tendency to establish the value of his car. The issue before the court related to the rental value of Lockwood’s car, not to that of a different car, and, as we have said, there was no testimony showing, or tending to show, what the rental value of his car was. Therefore the instruction should not have been given.

As this case may be tried again, we think it proper to say that the use or rental value of a car during the period involved is a matter' of opinion, for the purpose of establishing which it is necessary to call expert witnesses familiar with the’ subject. The course usually pursued, after showing the competency of the witness to speak, is to ask for his opinion, and, having received it, to follow by an inquiry as to the facts on which he based it. Sullivan v. Lear, 23 Fla. 463, 2 South. 846, 11 Am. St. Rep. 388; Chamberlain v. Dunlop, 126 N. Y. 45, 26 N. E. 966, 22 Am. St. Rep. 807. He then may give the things which led him to the opinion expressed. There is authority for holding that he should not be allowed to do this on his examination in chief (Harris v. Railroad Co., 141 Pa. 242, 21 Atl. 590, 23 Am. St. Rep. 278), but we believe that the other practice is the better one. If, however, the party producing the expert 'does not see fit to call for the grounds of his opinion, his adversary may do so on cross-examination.

Witnesses in this case were permitted to testify to the rental value per day and per week. The testimony should have been limited to the use value during the entire period which it was proper to consider. It is manifest, said the Supreme Court of Tennessee in Perkins v. Brown, 132 Tenn. 294, 177 S. W. 1158, L. R. A. 1915F, 723, 725, Ann. Cas. 1917A, 124, that the rental charge per week, aggregated for a certain number of weeks, would amount to more than the sum representing the rental charge for the longer or entire detention period. To the same effect is Brookmole v. Kinchen (Tex. Civ. App.) 253 S. W. 953.

It is urged that plaintiff is entitled to recover for th%. entire period during which he was deprived of the car, though there were days or parts of days during which he had no use for it, and there are decisions which sustain him in this contentipn. They proceed upon the theory that, since the plaintiff’s right of property was invaded by the wrongdoer, he is entitled to recover substantial damages, that the value of the use is not the mere value of the use intended by the owner but the value of the possible use, and that the wrongdoer has no'right to consider what use was in fact to be made by the owner. This does not appeal to us. Compensation is the cardinal purpose of the law of damages. Rockefeller v. Merritt, 76 Fed. 909, 917, 22 C. C. A. 608, 35 L. R. A. 633. With the exception of those rare cases in which punitive damages may be recovered, says Judge Sanborn,-speaking for the Circuit Court of Appeals, Eighth Circuit, a defendant is never liable to pay more than the actual loss which he has inflicted upon the plaintiff by his wrong. Hoyt v. Fuller, 104 Fed. 192, 193, 43 C. C. A. 466. To give him damages where none have been caused is not to compensate him for a loss, but to punish the wrongdoer, and this is not permissible, except in the cases just mentioned.

We think the better„rule is followed in Frey v. Drahos, 7 Neb. 194, and Smith v. Stevens, 14 Colo. App. 491, 60 Pac. 580, where it was held in substance that plaintiff could not recover merely because he had a right to use, or was in a position to use, the property taken from him, but that it was incumbent'Upon him to go further, and show he needed the car, and was prevented from using it by the wrongful detention of it by the defendant. This is in harmony with the decision of the Supreme Court of the United States in The Conqueror, 166 U. S. 110, 133, 17 Sup. Ct. 510, 41 L. Ed. 937. A pleasure yacht was wrongfully, seized and detained for five months during the autumn and winter by the collector of customs. Damages were asked by the owner. It was urged that, as tire yacht could not be used during the autumn and winter, the owner had suffered no loss. In sustaining this view the court- said:

“It is not the mere fact that a vessel is detained that entitles the owner to demurrage [damages]. There must be a pecuniary loss, or at least a reasonable certainty of pecuniary loss, and not a mere inconvenience arising from an inability to use the vessel for the purposes of pleasure, or, as was said by Dr. Lushington in The Clarence, 3 W. Rob. 286: ‘There must be actual loss and reasonable proof of the amount.’ In other words, there must be a loss of profits in its commercial sense.”.

■ The court noted that there was not an atom of testimony tending to show that the owner bought the 'vessel for hire, or would have leased it if he had been able to do so. See, also, Hahlo v. Benedict, 216 Fed. , 132 C. C. A. 447, Perkins v. Brown, ante, and Hunter v. Quaintance, 69 Colo. 28, 168 Pac. 918, as having some bearing on the point.

We gave expression to the same principle in Railroad Co. v. Car Co., 5 App. D. C. 524. In that case the plaintiff had entered into a contract with the defendant to manufacture for it a number of street cars and deliver them within a certain time. It failed to make the delivery as prescribed. The defendant, when sued for a balance claimed to be due on the contract, contended it was entitled to recover by way of recoupment for loss of profits during the delay in the delivery. The court put aside the contention as unsound, and held that it was entitled to the reasonable hire or rent of the cars for the period of delay, provided they “could and would have been in actual service” during that .time.

Following the rule laid down by these authorities, if there were days when the plaintiff did not have use for his car, they should be deducted from the whole period for which he is entitled to recover damages.

Another principle which is applicable in this case: Where a person’s right of property is invaded, it is his duty to do all reasonably within his power to reduce the damages. Damages which may be avoided by doing what an ordinarily prudent man would do are not the direct or natural consequence of the defendant’s wrong, since it is plaintiff’s option to suffer them. In such a situation the plaintiff is damaged, not by the defendant’s act, but his own negligence or indifference to consequences. Chesapeake & Ohio Railway Co. v. Kelly, 241 U. S. 485, 489, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, and cases there cited. To the same effect are Sedgwick on Damages (9th Ed.) vol. 1, §§ 201 and 202; Hoyt v. Fuller, supra; Woodward v. Pierce Co., 147 Ill. App. 339.

When the plaintiff’s car was taken from him, he could have procured its return immediately by giving an undertaking under section 455 of the Code, with security approved by the court. It was his duty to do this, and thus to reduce the defendant’s liability. If he had done it, the only loss which would have come to him would be that occasioned by the expense of procuring the undertaking and necessarily incurred for a car between the date of the levy and the return of his own car, assuming that he used due diligence throughout. Of course, if he was not financially able to procure an undertaking, the law would not require him to do so or lose his right to damages. In such a case he would be entitled to rely upon the rule of compensation hereinbefore stated.

The judgment'is reversed, with costs, and a new trial awarded.

Reversed.