Atlantic Co. v. Farris

• Decision Date: 15 March 1940
• Docket Number: 28007.
• Citation: 8 S.E.2d 665,62 Ga.App. 212
• Parties: ATLANTIC CO. v. FARRIS.
• Court: Georgia Court of Appeals

8 S.E.2d 665

62 Ga.App. 212

ATLANTIC CO. v. FARRIS.

No. 28007.

Court of Appeals of Georgia, Division No. 2.

March 15, 1940

Dykes Bowers & Dykes, of Americus, for plaintiff in error.

Fort Fort & Fort, of Americus, for defendant in error.

STEPHENS Presiding Judge.

Mrs Florence Farris brought suit against The Atlantic Company and M. H. Pruitt seeking to recover of the defendants, the actual damages sustained, together with punitive damages, because of the alleged trespass of the defendants in causing certain personal property belonging to Mrs. Farris to be seized under an attachment sued out against her non-resident husband based upon a debt due The Atlantic Company by the plaintiff's husband, at a time when the plaintiff was out of the state and, after obtaining judgment in the attachment proceedings, causing a part of the property to be sold, and in restoring the other part of the property seized to the plaintiff in a damaged condition, when the defendants had knowledge at the time of the seizure and at the time of the sale that this property belonged to the plaintiff and not to her husband. The plaintiff alleged that she was entitled to recover of the defendants the actual value of the furniture "taken, carried away and sold," in the sum of $876.40, the damage to other furniture caused by removing it from storage and

thereafter returning it, in the sum of $240, and also punitive or exemplary damages in the sum of $5,000. The trial court overruled the general and special demurrers of the defendants to the plaintiff's petition as amended. To this judgment the defendants excepted pendente lite, and error is assigned on such judgment in the bill of exceptions.

The case came on for trial and was dismissed as to the defendant, Pruitt. The following appears from the evidence:

At the time the attachment was sued out against the husband of the plaintiff she was in New York City, and the personal property seized thereunder, to wit, furniture, which was purchased by the plaintiff with her own money and which belonged to her, had been stored with P. L. Wooten in Americus, Georgia, and a storage receipt therefor was issued in the name of Mrs. Farris, and delivered to her by Wooten. This attachment was sued out in behalf of the defendant company by its attorney in Americus. On December 23, 1937, the plaintiff, through her attorneys in New York City, informed the defendant's attorney in Americus by telegram that the furniture seized by his client, the Atlantic Company, for the indebtedness of Mr. Farris, belonged to Mrs. Farris. In this telegram the attorneys for Mrs. Farris informed the defendant's Americus attorney, that, if the furniture was not released but was sold under the attachment necessary steps would be taken to "indemnify" Mrs. Farris. This telegram was in response to a letter written to Mrs. Farris by the defendant's Americus attorney on December 17, 1937, informing her that the furniture stored with Wooten had been attached by his client, The Atlantic Company, as the furniture of her husband, and that her husband was indebted to that company. The attorneys for Mrs. Farris, after sending the telegram, wrote a letter to the attorney for the defendant, and advised him of Mrs. Farris' title to the furniture, and enclosed in the letter affidavits and bill of sale in support thereof. Part of this furniture was returned to P. L. Wooten and later returned to the plaintiff in a damaged condition as a result of the hauling and handling thereof under the direction and command of the defendant. The greater part of the furniture was sold under the attachment proceedings, after judgment therein had been obtained against the plaintiff's husband. It appeared from the testimony of the officer levying the attachment that he was advised by some one at the time that the furniture did not belong to the defendant in attachment, the plaintiff's husband, that the storage man told him (the witness) that this furniture was stored in the name of Mrs. Farris, that he reported this finding to the attorney for the defendant, stating, "you don't want to get in no sweat about this," and that the defendant's attorney responded, "I will take care of you, there will be no sweat to get in."

There was no evidence in support of the item of $250 actual damages claimed by the plaintiff on account of hauling away and returning the furniture to the storage house, and the court instructed the jury not to consider this item of damage.

Mrs. Florence Farris, the plaintiff, further testified in part as follows: "I stored my furniture with Mr. Paul Wooten's place in Americus. *** I did not get back one small rug, $6.00, one small rug, $6.00, one coffee table, $14.50, one filco [Philco] radio $172.50, one magazine rack $29.50, one cotton mattress $39.50, one table lamp $7.95, one floor lamp $10.00, one overstuffed chair $75, one small rug, $6.00, large rug $192, one small rug $6.00, one rug $37 and one large rug $49, 2 piece living room suite $200, one book case $15, one floor lamp $10.00, I have totalled that amount up, the total value of the furniture I lost was $876.40. *** I had been using that furniture ever since *** 1935, it was not brand new furniture but was not considered old, it was used furniture, and so far as the value is concerned any value that was put on it had to be put on it as used furniture and not new furniture, I don't know what that value is *** that furniture was in good condition when I stored it with Mr. Wooten, I had taken good care of it in using it, the value of that furniture I testified to was what I paid for it. I would say it was practically new when I stored it with Mr. Wooten; I know it would not be valued at much less, would not be worth much less than that because I left them with Mr. Wooten without a scratch on them or nothing; to my knowledge I say it was worth $846.40 when I stored it with Mr. Wooten."

P. L. Wooten testified for the plaintiff in part as follows: "I attended the sale of that furniture and saw that furniture when it was sold; I considered the furniture in very good shape and bought two or three pieces; I considered it good furniture, very nice." There was no other evidence concerning the value of this furniture. There was no evidence by the defendant seeking to dispute the plaintiff's valuation of the furniture lost by her as a result of the levy of the attachment and sale thereunder. There was evidence that the defendant in attachment, the plaintiff's husband, had procured in his own name a policy of insurance on the furniture involved.

The jury returned a verdict for the plaintiff for $1,272.44. The defendant, the Atlantic Company, moved for a new trial on the general grounds, and by amendment added several special grounds. The trial judge overruled the motion for new trial, and the defendant excepted.

1. The defendant insists that the trial court erred in overruling its general and special demurrers to the petition as amended. It is urged that the petition failed to show that any agent of the defendant acted for it and within the scope of his authority in attaching and selling the plaintiff's alleged furniture, and failed to show any facts authorizing the recovery of punitive damages. It appears from the petition as amended that the defendant's principal place of business was in Fulton County, and that the defendant M. H. Pruitt, was manager of the business of the defendant company in Sumter County, that the husband of the plaintiff was indebted to the defendant company, and this claim was turned over to a local attorney for collection, that this attorney sued out an attachment against the plaintiff's husband, who was a non-resident of this State, that the defendant's attorney, in suing out the attachment, causing the furniture of the plaintiff to be seized thereunder, and in bringing the furniture to sale after judgment in the attachment case, was acting within the scope of his authority as agent and attorney for the defendant company, and that the officer levying the attachment was acting under the direction of this attorney who had authority from his client, the defendant company.

One, who authorizes or directs his attorney to sue out a writ of attachment, and ratifies his act in so doing, is liable in damages in case the attachment proves to be wrongful. 6 C.J. 504; 7 C.J.S., Attachment, § 536, p. 668. An attorney employed to collect a claim by suit has authority to cause an attachment to be issued thereon and his client may be held responsible when the attachment is unjustifiable. 6 C.J. 647. A client is liable to a third person injured by the act of his attorney done in the execution of matters within the attorney's authority such as the issuance of an attachment where the attorney has been employed to collect a claim. 6 C.J. 671; Parker v. Home Mutual Building, etc., Ass'n, 114 Ga. 702, 40 S.E. 724. Where the relation of attorney and client exists, the client is bound, according to the ordinary rules of agency, by the acts of his attorney, within the scope of the latter's authority. Accordingly, the client may be liable for a trespass com mitted by his attorney that he in no way authorized, except by his general employment of the attorney, or for the tortious institution, continuation, or prosecution of legal proceedings to enforce the client's claim. 5 Am.Jur. p. 298, § 67; American Law Institute, Restatement, Agency, p. 564, § 253. A client may be liable where his attorney, in the course of his employment, causes an attachment to be sued out against the debtor of the client, and levied upon property of one other than the debtor as the property of the debtor. Williams v. Inman, 1 Ga.App. 321, 57 S.E. 1009.

Where it appears that the attorney knew, or had reasonable grounds for...