Bondies v. Glenn, 1815.

• Decision Date: 24 June 1938
• Docket Number: No. 1815.,1815.
• Citation: 119 S.W.2d 1095
• Court: Texas Court of Appeals
• Parties: BONDIES et ux. v. GLENN.

Page 1095

119 S.W.2d 1095

BONDIES et ux. v. GLENN.

No. 1815.

Court of Civil Appeals of Texas. Eastland.

June 24, 1938.

Rehearing Denied September 23, 1938.

Error from District Court, Nolan County; A. S. Mauzey, Judge.

Action by Harry R. Bondies and wife against H. C. Glenn, individually, and as receiver of the Temple Trust Company, for wrongful suing out and levying a writ of attachment, and for fraud and deceit. To review a judgment of dismissal, the plaintiffs bring error.

Affirmed.

Harry R. Bondies, Mays & Perkins, Beall, Beall, Yonge & Neblett, Anderson & Dickson, P. Edward Ponder, and Steakley, Harris & Nunn, all of Sweetwater, for plaintiffs in error.

Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for defendant in error.

FUNDERBURK, Justice.

Harry R. Bondies and wife, Mrs. Maude Bondies, brought this suit against H. C. Glenn, individually, and as receiver of Temple Trust Company, a corporation. The defendant in both capacities pleaded general demurrers to plaintiffs' petition, which were by the court sustained. Upon plaintiffs declining to amend, the case was dismissed. From such judgment of dismissal, the plaintiffs have prosecuted writ of error to this court.

The question for decision, stated most comprehensively, is whether plaintiffs' petition was sufficient to allege a cause of action against the defendant in the capacities in which he was sued, or either of them. Because of an agreement of the parties, even this question may be narrowed to a consideration of whether such pleading stated a cause of action entitling plaintiffs to recover other than nominal damages. The pleading in question, as transcribed into the record, consists of pages 1 to 32, inclusive. By reason of its length we shall not set it out in full in this opinion, but shall state its legal effect, in a general way, as we interpret it. The parties will be referred to as in the trial court—plaintiffs-in-error as plaintiffs, and defendant-in-error as defendant.

The question at issue can perhaps best be approached by considering first the nature of the cause of action, or causes of action, attempted to be alleged. It is safe to assume as a premise, we think, that plaintiffs in their pleading attempted to allege a cause of action (1) for wrongful suing out and levying a writ of attachment on plaintiffs' homestead, or (2) for fraud and deceit, or (3) for both. In any event, the action was upon tort.

In determining whether an action requiring a resort to construction to determine its nature is upon contract or tort, the rule is that: "If it appears that the action is based upon a promise, express or implied, it is ex contractu, even though there are allegations in the complaint appropriate to an action in tort based upon fraud, such allegations not affecting or changing the nature of the action. Conversely, if it appears that the gravamen or gist of the complaint is the fraud and deceit, the action is in tort, although the complaint contains allegations of a contract such as by way of inducement." 1 C.J.S., Actions, p. 1110, sec. 49 b (1). Also, 1 C. J. 1020, sec. 142.

No reason occurs to us why this same principle may not be applicable where the question, as here, is, not whether the action be ex contractu or ex delicto, but whether it be the particular ex delicto action of wrongfully causing the issuance or levy of an attachment, or the ex delicto action of fraud and deceit. Believing such rule applicable, we think the gravamen or gist of the cause of action attempted to be averred by plaintiffs is to be found generally expressed in the first part of the pleading as follows: "For cause of action plaintiffs show that heretofore, to-wit, on the 28th day of August, 1935, said defendant H. C. Glenn, receiver as aforesaid, and acting as such receiver through his duly authorized agent and attorney, John B. Daniel, without probable cause, maliciously and for the purpose of gaining unconscionable advantage over the plaintiffs and thereby extorting, coercing and forcing plaintiffs to sacrifice their homestead, wrongfully and with knowledge of such wrong, and knowing that the property attached was the homestead of plaintiffs, levied writ of attachment upon the homestead of plaintiffs in Sweetwater, Texas, under the circumstances and to their great damage as hereinafter set forth." (Italics ours.) All that is thereinafter "set forth" purports, therefore, to be but the "circumstances" under which such wrongful levy of attachment was made, and a specification and description of plaintiffs' "great damage" resulting therefrom. There seems to be nothing in the allegations themselves inconsistent with the character by which they are thus denominated by the plaintiffs.

It follows, in our opinion, that the pleading is not reasonably susceptible to any other construction than that but one cause of action was intended to be alleged, and that was for the wrongful levy of the attachment on plaintiffs' homestead.

As a general rule an ordinary levy of attachment upon real estate will not authorize a recovery of damages. Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S.W. 564; 5 Tex.Jur. p. 269, sec. 108. It would be equally accurate to say, and at the same time include in the statement, the underlying reason therefor, that, as a general rule, the levy of an attachment on real estate will not result in legal injury to the owner and hence there can be no recovery of damages. The cases in which damages are recoverable are generally limited to those in which there has been a physical seizure of the property and consequent disturbance of the owner's possession. 5 Tex.Jur. 270, sec. 109; Schulte v. Republic Supply Co., Tex.Civ.App., 297 S. W. 667; Low v. Ne Smith, Tex.Civ.App., 77 S.W. 32. Plaintiffs' petition, in effect, negatived the existence of any injury consisting of loss or disturbance of possession, or of the use and enjoyment of the premises as the result of the levy.

The question at issue may, therefore, be further narrowed to this: Do the allegations show a right to recover actual damages? In considering this question, the term "actual damages" will not be regarded as including nominal damages. This results, as already said, from an agreement of the parties, plaintiffs having, in effect, formally agreed that if their petition stated a cause of action for no more than nominal damages, it should be considered as stating no cause of action at all.

If the petition was insufficient, as tested by the general demurrers, to state a cause of action for substantial actual damages, then there is eliminated any further question of the sufficiency of the pleading to authorize recovery of exemplary damages.

The general rule is that unless actual damages be recoverable, exemplary damages are not recoverable. Girard v. Moore, 86 Tex. 675, 26 S.W. 945; Flanagan v. Womack, 54 Tex. 45; Trawick v Martin-Brown Co., supra; Jones v. Matthews, 75 Tex. 1, 12 S.W. 823.

Irrespective of the agreement aforesaid, if only nominal damages were recoverable, under the allegations of the petition, exemplary damages were not recoverable. Girard v. Moore, supra.

It is our conclusion that the allegations of the plaintiffs' petition show that plaintiff suffered no legal injury from the levy of the attachment, assuming it to have been wrongful. Injury and damages are not synonymous. A person may sustain actual damage without sustaining any legal injury. 1 C.J.S., Actions, p. 1005, sec. 15a; 1 C.J. 964, sec. 57. "In such cases the damage is damnum absque injuria and no cause of action arises in favor of the party sustaining it against the party by whose act it was caused." 1 C. J.S., Actions, p. 1006, sec. 15b (1); 1 C.J. 964, sec. 57.

This principle finds its most usual application, perhaps, in actions seeking to recover damages resulting from bringing or defending legal actions. With regard to such actions it is said:

"Although one party may thereby subject the other to unnecessary trouble and expense, unless the action is malicious and without probable cause * * * the damage so caused is damnum absque injuria, and, as a general rule, a cause of action cannot be maintained for redress therefor, except in so far as it may be covered by a contract of indemnity, or the successful party may be entitled to redress by way of taxable costs * * *, notwithstanding this may be inadequate as compensation.

"In accordance...