Askin & Marine Co. v. Logan

• Decision Date: 10 June 1930
• Docket Number: 6 Div. 700.
• Citation: 130 So. 768,24 Ala.App. 13
• Parties: ASKIN & MARINE CO. ET AL. v. LOGAN.
• Court: Alabama Court of Appeals

130 So. 768

24 Ala.App. 13

ASKIN & MARINE CO. ET AL. v. LOGAN.

6 Div. 700.

Court of Appeals of Alabama

June 10, 1930

Rehearing Denied June 30, 1930.

Action by Horace A. Logan against the Askin & Marine Company and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Certiorari denied by Supreme Court in Askin & Marine Co. v Logan, 130 So. 770.

Counts 3 and 4 are, in pertinent part, that:

"Defendants did wrongfully, maliciously and without probable cause therefor, cause a garnishment to be run out of the municipal court of Birmingham, *** against the plaintiff and to be served upon plaintiff's employer, *** and as a proximate consequence of the running and serving of the garnishment, the plaintiff was caused great humiliation was caused to spend money for attorney's fees, *** to lose time and money, his credit rating and reputation were injured and impaired, and to be put in a bad light with his employer," etc.

Count 5 charges the tort to "the agents, servants or employees of the defendants while acting within the line and scope of their employment as such agents, servants or employees."

The demurrer takes the objections: (a) That the averments are mere conclusions; (b) that malice is charged to defendants or their agents, servants, or employees, in the alternative; that no proximate causal connection is shown between the wrong complained of and the damages claimed.

Jacobs & Carmack, of Birmingham, for appellants.

Patrick & Appelbaum and Richard H. Fries, all of Birmingham, for appellee.

SAMFORD J.

Under the decisions in McCarty v. Williams, 212 Ala. 232, 102 So. 133, and Wells Co. v. Lane 22 Ala. App. 269, 115 So. 74, we must hold that counts 3, 4, and 5 state a good cause of action and are not subject to the grounds of demurrer assigned. The writer is of the opinion that proper consideration was not given to count C in McCarty v. Williams, supra, but that is "water that has gone under the bridge." The suggestion is here made that the attention of the Supreme Court may again be directed to it. 38 Corpus Juris, 469 (130).

In actions for malicious prosecutions growing out of the suing out of attachment or garnishment, as in all other actions for malicious prosecutions, malice on the part of defendant must be alleged and proved.

McCarthy v. Williams, supra. But in such actions growing out of the suing out of attachment or garnishment, the malice of the agent will not be imputed to the principal and mere knowledge on the part of the principal, of an agent's unauthorized action, will not make silence, or mere noninterference, in all cases, amount to ratification. M. & M. Ry. Co. v Jay, 65 Ala. 113. Unless there is some evidence showing or tending to show that a principal knew and participated in the act from which malice might be legally implied in the suing out of the attachment, there can be no recovery against him. In other words, the rule still obtain in actions for malicious prosecution based upon the suing out of attachments that: "Wanton and malicious acts of an agent impose no liability on the principal unless done under the direction or with the asent of the principal." Gilliam v. S. & N. N. A. R. Co., 70 Ala. 268; 2 Corpus Juris 854 (537). "When an agent is authorized to sue out a writ of attachment, and does so wrongfully the principal is liable for actual damages, but is not liable for punitive damages based on the malice of the agent not shared in by the principal. *** As thus recognized, it seems to be a limited survival of a once general rule, based on the English case of McManus v. Crickett, 1 East, 106." So. Ry. Co. v. Beaty, 212 Ala. 608, 103 So. 658, 663. The rule as above stated finds recognition in the recent case of Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42. In the instant case there is an entire absence of any evidence tending to show malice on the part of defendant Askin & Marine Company. No officer...