Bell v. Seals Piano & Organ Co.

• Decision Date: 14 February 1918
• Docket Number: 3 Div. 341
• Citation: 201 Ala. 428,78 So. 806
• Court: Alabama Supreme Court
• Parties: BELL et al. v. SEALS PIANO & ORGAN CO.

78 So. 806

201 Ala. 428

BELL et al. v. SEALS PIANO & ORGAN CO.

3 Div. 341

Supreme Court of Alabama

February 14, 1918

Rehearing Denied April 25, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Action by the Seals Piano & Organ Company against N.J. Bell, as trustee, and others for damages for wrongfully suing out an attachment. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Rushton Williams & Crenshaw, of Montgomery, for appellants.

Tilley & Elmore and W.A. Gunter, all of Montgomery, for appellee.

THOMAS J.

The suit was for the wrongful and malicious suing out of an attachment. For former discussion of some of the questions involved see Seals Piano & Organ Co. v. Bell, 196 Ala. 290, 71 So. 340. There are several assignments of error predicated on the rulings of the trial court on the introduction of evidence

The witness George E. Warrick was asked, over defendants' due exception, "Was that a brand new thing *** as regards your moving?" and answered, "We had been telling everybody for months we were moving--it was publicly known." For an understanding of this exception, it is necessary to note that the testimony of the witness examined immediately preceding was to the effect that the sheriff had levied an attachment on the stock of goods remaining in plaintiff's store in the ground floor on a corner where a number of persons passed daily, and that the fact that the store was locked up was apparent to any one passing. Immediately before plaintiff's counsel suggested to the court that the words "it was publicly known," objected to by defendants, be excluded, evidence was offered by plaintiff showing that it had advertised on three different occasions its intention to close its business and the offer of its goods at a sacrifice for quick disposal; and the court thereafter replied, "All right." The context shows that the witness' reply, to which the objection and exception were directed, was a mere repetition of his immediately preceding statement, "We had been telling everybody for months we were moving." In the light of such evidence, we would not reverse the case because the court was not more emphatic in excluding the expression from the jury.

Credit is a conclusion of fact, partly based on opinion founded more or less on reputation (Alabama State Land Co. v Reed, 99 Ala. 19, 23, 10 So. 238), and partly based on personal observation and knowledge as to such collective fact (A.G.S.R.R. Co. v. Yarbrough, 83 Ala. 238, 242, 3 So. 447, 3 Am.St.Rep. 715). A witness having knowledge of the collective fact of credit may testify to the inferential fact of damage thereto, but not to the extent of the damage; this can be arrived at only by a consideration of all the facts and circumstances having the effect to damage such credit. Trammell v. Ramage, 97 Ala. 666, 11 So. 916.

It is a legitimate ground for the recovery of actual damages that there has been an injury to one's credit. Donnell v Jones, 13 Ala. 490, 48 Am.Dec. 59; Goldsmith v. Picard, 27 Ala. 142; Durr v. Jackson, 59 Ala. 203, 209; Flournoy v. Lyon, 70 Ala. 308. It has been held that "loss of credit and business are the natural consequences of suing out an attachment against a merchant on account of fraud, and may be averred in the complaint." Marx Bros. v. Leinkauff, 93 Ala. 453, 9 So. 818; Flournoy v. Lyon, supra; Hundley v. Chadick, 109 Ala. 575, 580, 19 So. 845.

The evidence elicited from S.H. Warrick, secretary and treasurer of defendant in attachment, was competent to show the fact of damage to such defendant's (this plaintiff's) credit, caused by the wrongful suing out of such attachment, together with the extent of the damage. The witness had given the facts on which his opinion of such damages was based, which were, among other things, that plaintiff's business was conducted largely on credit, and that in the course thereof the company guaranteed instruments sold, and that it was a benefit that such vendor should have "the reputation of being willing and able to stand back of its guaranties," and that anything which worked against its "reputation or credit" hurt and had a tendency to reduce its business. On this phase of the case a jury question was presented. What we have said renders unnecessary a discussion of the other objections and exceptions reserved on the introduction of evidence. There was no error in refusing defendants' written charges Nos. 2, 3, 4, and 5, for the reasons stated.

As to the assessment of vindictive damages under count C as last amended, it will be noted that said count not only negatived the sworn ground upon which the attachment was issued, but averred that the attachment was wrongfully and maliciously sued out, and without probable cause therefor. Painter v. Munn, 117 Ala. 322, 334, 23 So. 83, 67 Am.St.Rep. 170; Hamilton v. Maxwell, 119 Ala. 23, 26, 24 So. 769; Schloss v. Rovelsky, 107 Ala. 596, 18 So. 71; McLane v. McTighe, 89 Ala. 411, 413, 8 So. 70; Crofford v. Vassar, 95 Ala. 548, 550, 10 So. 350; Bank v. Jeffries, 73 Ala. 183. In part the count reads as follows:

"That no legal ground for the suing out of said attachment existed; that at the time of the issuance of said attachment an installment of rent for said stores was not due, and said tenant had not failed or refused on demand to pay for such installment; that at the time of the issuance of said attachment said Seals Piano & Organ Company was not about fraudulently to dispose of its goods. And plaintiff avers that said attachment was wrongfully and maliciously sued out and without probable cause therefor and that by reason of said wrongful and malicious suing out of said attachment plaintiff herein suffered damages and costs which have not been paid."

This allegation was a sufficient basis whereon to ground an assessment of vindictive damages, provided it was supported by the evidence. The evidence showed that on the 8th day of January, 1910, defendant in attachment leased from defendants in this suit two stores, in the city of Montgomery, to be used for the conduct of its business as a dealer in pianos and other musical instruments; that said lease extended from the 1st day of January, 1910, to the 30th day of September 1914, upon a monthly rental of $150, payable on the last day of each month; that when Mr. Bell came to his office on the morning the attachment issued some one told him plaintiff was moving out of its place of business, and finding the tenant so moving therefrom, he went to the office of his attorneys, explained the situation to them, and made the affidavit for attachment, together with a bond for the issuance thereof, for the past-due rent, which papers were sent to the clerk's office by a messenger from the atttornys' office, with direction that they be filed in court. The evidence further shows, without conflict, that while Bell was yet in the office of his attorneys, and engaged in conversation with a junior member of the firm of counsel in the matter of the attachment for the past-due rents, the senior member of said firm of attorneys came in and, on being fully and fairly acquainted with what had happened as to the removal of the tenant,...