Bradford v. Lawrence

• Decision Date: 12 October 1922
• Docket Number: 7 Div. 340.
• Citation: 94 So. 103,208 Ala. 248
• Parties: BRADFORD ET AL. v. LAWRENCE.
• Court: Alabama Supreme Court

94 So. 103

208 Ala. 248

BRADFORD ET AL. v. LAWRENCE.

7 Div. 340.

Supreme Court of Alabama

October 12, 1922

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Action by Hamp Lawrence against Joseph Bradford and another. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Lackey Pruet & Glass, of Ashland, for appellants.

Walter S. Smith, of Lineville, for appellee.

SOMMERVILLE J.

To maintain an action under Code, § 2966, for the malicious suing out of an attachment, ill will or vindictiveness need not be proved, but only the want of probable cause coupled with the unlawful act of suing out the writ. Durr v Jackson, 59 Ala. 203; Jackson v. Smith, 75 Ala 97; City Nat. Bank v. Jeffries, 73 Ala. 183.

Defendant's contention is that he has proved the existence of probable cause for suing out the attachment, as a matter of law, by showing that it was honestly done upon the advice of learned legal counsel, based upon a full and fair statement of all the facts made by defendant to him; and that probable cause, thus established, is an absolute defense as against vindictive damages. That is, of course, a familiar rule of law. McLeod v. McLeod, 73 Ala. 42; Steed v. Knowles, 79 Ala. 446. Nevertheless, in such cases it is usually a question of fact for the jury to determine whether or not the plaintiff in attachment relied and acted upon such advice in good faith (Sandlin v. Anders, 187 Ala. 473, 65 So. 376; Baldwin v. Walker, 94 Ala. 514, 521, 10 So. 391); and also whether the advice was based upon a full disclosure of all the relevant facts, with due diligence in their ascertainment (Baldwin v. Walker, supra; Steed v. Knowles, 79 Ala. 446). There may be exceptional cases where those questions do not arise, as in Bell v. Seales P. & O. Co., 201 Ala. 428, 78 So. 806, but the evidence does not exclude this case from the general rule.

We think that, on the whole evidence, the question of probable cause, as based upon the advice of counsel, was for the jury to determine, and that the general affirmative charge for defendant as to vindictive damages was properly refused. However, having regard to the size of the verdict and the large amount of actual damage shown in excess of defendant's set-off judgment, we are satisfied that the jury's verdict did not include vindictive damages in the sum awarded.

It was competent for plaintiff to testify as to the effect of the attachment suit on his credit, and the state of his credit thereafter. O'Grady v. Julian, 34 Ala. 88. As for damages for loss of credit, the evidence was sufficient, as held on the former appeal, to take that question to the jury. Bradford v. Lawrence (Ala. App.) 90 So. 809.

Defendant's right to a set-off against plaintiff's claim was restricted by the scope of his plea. His offer was to set off his judgment for $464.48, the face of the judgment alone, and not the amount of the judgment together with the costs incidental thereto. He was therefore not entitled to the instruction requested as to the set-off of the judgment and costs.

Conceding that several of the questions allowed on the cross-examination of defendant's witnesses, who impeached plaintiff's character for veracity, called for irrelevant matter, as, for example, that plaintiff borrowed money on good security from a bank in which the witness was a...