Columbus Finance, Inc. v. Howard

• Decision Date: 11 December 1973
• Citation: 311 N.E.2d 32,38 Ohio App.2d 7
• Parties: , 67 O.O.2d 116 COLUMBUS FINANCE, INC., Appellant, v. HOWARD et al., Appellees.
• Court: Ohio Court of Appeals

Page 7

38 Ohio App.2d 7

311 N.E.2d 32, 67 O.O.2d 116

COLUMBUS FINANCE, INC., Appellant, v. HOWARD et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 11, 1973.

Syllabus by the Court

1. In an action for wrongful attachment, actual malice must be proved to justify an award of punitive damages.

2. Damages for mental suffering, anguish and humiliation may be awarded in the absence of physical injury where the act complained of is not only wrongful, but intentional and willful.

Vorys, Sater, Seymour & Pease, Columbus, James H. Hedden and Thomas M. Taggart, Columbus, of counsel, for appellant.

James B. Albers, Columbus, for appellees.

WHITESIDE, Judge.

This is an appeal from the Franklin County Municipal Court.

This action was commenced by the plaintiff taking a judgment by confession in the amount of $636.64 for the balance upon two cognovit notes. The petition erroneously listed defendants' address as Constance Drive, but their correct address was Carstare Drive. The notice of the judgment sent by the clerk of courts to defendants was returned and marked 'no such street.' Plaintiff levied execution upon a 1967 Chevrolet owned by defendants. The levy was executed by a court bailiff accompanied by plaintiff's collection manager. When they arrived at defendants' home to levy execution, Mrs. Howard, one of the defendants, produced what she claimed was a receipt for payment in full of the notes involved. Notwithstanding the production of the alleged receipt by defendant, of which plaintiff had no record, plaintiff's collection manager insisted upon confiscating and impounding the automobile. The judgment by confession was entered on April 14, 1971; the execution was issued on April 15, 1971; and the levy upon the automobile was made on April 26, 1971.

Thereafter, on May 26, 1971, the defendants filed a motion to vacate the judgment by confession upon the grounds that plaintiff failed to comply with R.C. 2323.13 and that the notes on which the judgment was confessed had been paid. At the same time, defendants filed an answer and a cross-complaint. By the cross-complaint, defendants sought compensatory damages resulting from the alleged wrongful removal of the automobile from their possession, including special damages by virtue of additional transportation and medical costs and, in addition, sought exemplary damages.

The motion to vacate the judgment was sustained, and the levy of execution set aside, and the automobile returned to defendants. Thereafter, the case proceeded to trial before the court without a jury. The trial court entered a judgment for the defendants upon plaintiff's petition, awarded defendants compensatory damages in the amount of $240 for the loss of use of the automobile, awarded compensatory damages to Mrs. Howard in the amount of $760 for mental anguish and public humiliation suffered by reason of the wrongful attachment, and awarded exemplary damages, including attorney fees, in the amount of $2,000, making the total judgment $3,000. Plaintiff appeals and raises two assignments of error as follows:

'1. The trial court erred in failing to direct verdict in favor of appellant at the conclusion of appellees' evidence on that portion of appellees' cross-complaint (counterclaim) relating to punitive damages, attorneys' fees, and damages for mental suffering, anguish and humiliation.

'2. The trial court erred in finding that there was evidence before the court to support an award of punitive damages, attorneys' fees and damages for mental suffering, anguish and humiliation in favor of appellees, and in awarding such damages to appellees.'

Plaintiff raises no issue with respect to denying its claim for judgment on the two notes or with respect to the award of the compensatory damages for the loss of use of the automobile. Plaintiff does contend that the trial court erred in awarding compensatory damages to Mrs. Howard for mental suffering, anguish and humiliation, and in awarding exemplary or punitive damages, including attorney fees. Since both assignments of error are interrelated, we will discuss them together.

Plaintiff was the holder of two cognovit notes executed by defendants, one in the amount of $1,058.88, executed in December 1967, and the other in the amount of $116, executed in February 1968, both of which were in connection with the purchase of furniture. Plaintiff retained a security interest in the furniture. By April 1968, defendants were delinquent in making payments on the notes. On April 18, 1968, an employee of plaintiff, Roger Kidd, discovered that the defendants were in the process of moving. Kidd asked Mr. Howard where they were moving and was told they were moving to the north end of Columbus. Kidd observed the defendants load the secured furniture into a truck. Upon instructions of plaintiff's collection manager, Kidd remained in the area and observed that defendants were proceeding in the truck containing the secured furniture towards southern Ohio. When defendants made a stop in Chillicothe, Kidd approached their truck to make further inquiry concerning the move and the future location of the secured furniture. During this encounter, Kidd reminded Mr. Howard that he had lied to him about where he was moving. Mr. Howard became angry and struck Kidd. (Howard admitted giving a fictitious address to Kidd because he felt it was none of his business.) A telephone call was then made to plaintiff's collection manager, and both Kidd and Mr. Howard talked to him. Arrangements were made for the repossession of the secured furniture the following day in Lucasville.

The furniture was repossessed the following day, April 19, 1968, by Kidd accompanied by a Scioto County deputy sheriff (at the request of defendants) and a truck driver. At this time, Kidd signed a receipt for the furniture which was witnessed by the deputy sheriff and the truck driver. The truck driver signed his name and address along the left side of the receipt, rather than at the bottom. This receipt also contains the words 'paid in full' above the signature of Roger Kidd. The word 'paid' in part occupies the same space on the receipt as the address of the truck driver. Kidd testified that the words 'paid in full' were not on the receipt when he signed it. The Howards testified that it was. Each party presented an expert witness, and the expert presented by plaintiff testified that the words 'paid in full' were added after the address of the truck driver, and the expert presented by defendants testified that the words 'paid in full' were written before the address of the truck driver. Neither the truck driver, nor the deputy sheriff testified.

It is impossible from an observation of the receipt to ascertain whether the words 'paid in full' or the address of the truck driver were first placed upon the receipt. While they occupy the same space, casual observation does not indicate which is over the other. The trial court, in weighing the evidence, chose to believe the evidence offered by defendants that the words 'paid in full' were placed on the receipt prior to its being signed by Roger Kidd. In view of the sharp conflict in testimony, including the conflict between the experts' testimony, this court must accept the trial court's finding in this regard.

On August 14, 1968, plaintiffs sent, by certified mail, the required notice of sale of the secured furniture, addressed to Box 108, Lucasville, Ohio. The return receipt was received back by plaintiff postmarked August 16, 1968, in Lucasville, Ohio, signed on behalf of Ronald Howard by Nancy Howard, whom the evidence indicates was Mr. Howard's sister. Although the return receipt indicates that it was requested that the delivery address be indicated, it was not indicated.

Defendants deny ever having received this certified letter and deny any knowledge of the address. However, the Lucasville postmaster testified that the address is the address of Mr. Howard's parents and, also, was the address of defendants, although at sometime, he did not know when, the defendants' address was changed to Box 33, Lucasville. Defendant's sister testified that the return receipt contained her signature, but could not remember having signed the receipt, having received the letter, or what she did with it. Mr. Howard testified that he sometimes received mail at his parents' home. In any event, the furniture was sold, the proceeds were credited by plaintiff to defendants' account, and this action was commenced only for the unpaid balance.

With respect to punitive damages, including attorney fees, the essential issue involves a determination of what is required to be proved in order to entitle an injured party to punitive damages where his compensatory damages arise from the wrongful attachment of property. The first paragraph of the syllabus of Smithhisler v. Dutter (1952), 157 Ohio St. 454, 105 N.E.2d 868, states...