Foley v. Union House Furnishing Co.
| Decision Date | 31 May 1933 |
| Citation | 60 S.W.2d 725,228 Mo.App. 1063 |
| Parties | WILLIAM FOLEY (PLAINTIFF), APPELLANT, v. UNION HOUSE FURNISHING COMPANY, A CORPORATION (DEFENDANT), RESPONDENT |
| Court | Missouri Court of Appeals |
Motion for rehearing denied June 13, 1933.
Certiorari denied by Supreme Court July 20, 1933.
Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.
AFFIRMED AND REMANDED.
Affirmed and remanded.
Douglas H. Jones for appellant.
(1) Damages for humiliation and mental suffering are properly allowable in a wrongful and malicious garnishment and attachment case where the injury complained of is wrongful wilful and malicious, or where it is accompanied by oppressive and malicious conduct. Hardy v. Lewis Automobile Co. (Mo. App.), 297 S.W. 169; Walser v Thies, 56 Mo. 89; State ex rel. v. Thomas, 19 Mo. 613; Talbott v. Plaster Co., 151 Mo.App. 538; State ex rel. v. Stark, 75 Mo. 566; State ex rel. v. Goodhue, 74 Mo.App. 162; McClelland v Dougherty (Mo. App.), 204 S.W. 201; State ex rel. v. Stepp (Mo. App.), 179 S.W. 723; Kamerick v. Castleman, 23 Mo.App. 481; City Bank v. Jefferies, 73 Ala. 183; Ahearn v. Connell, 72 N.H. 238; People v. Schuertz, 151 Ill.App. 190; Davis v. Standard Bank, 50 A.D. 210; Chapman v. Telegraph Co., 39 A. & E. Corp. Cases 567 (15 S.E. 901); Byrne v. Gardner, 33 La. Ann. 6.
Stern & Burnett, B. L. Liberman and Robert L. Aronson for respondent.
(1) Plaintiff's Instruction No. 1 was erroneous because shame and humiliation are not proper items of damage in an action for wrongful garnishment. Tisdale v. Major, 106 Iowa 1, 75 N.W. 663; McGill v. Fuller & Co. (Wash.), 88 P. 1038; Mannford State Bank v. Arnold (Okla.), 221 P. 76; Jensen v. Hallam (Neb.), 70 N.W. 1121; Gilmore v. Thwing (Wash.), 9 P. 775; Galloway v. Morris & Co. (Tex.), 249 S.W. 284; O'Neill v. Johnson, 53 Minn. 439; 2 R. C. L. 911; 1 Shinn on Attach. Garn., sec. 369. (2) If there was any humiliation in the instant case it resulted from the independent and intervening act of a third person. Cooper v. Scyoc, 104 Mo.App. 414, 79 S.W. 751. (3) There was no evidence of compensable humiliation in this case. Oller v. Dixie Greyhound Lines, 51 S.W.2d 557. (4) Order granting new trial will be affirmed if sustainable on any ground in motion. Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S.W. 927; Macklin v. Fogel Const. Co., 31 S.W.2d 14. (5) Plaintiff's Instruction No. 1 was erroneous, in addition to the reason mentioned by the trial court, because the evidence did not support the reference therein to legal expense, the pleadings did not justify the reference to the time lost prior to the garnishment, the evidence did not support the reference to humiliation, and the allowance of punitive damages was wholly improper under the evidence. (6) The verdict of the jury was so grossly excessive as to reveal passion and prejudice which deprived appellant of a fair trial. Cooper v. Scyoc, supra; Central Coffee & Spice Co. v. Welborn, 153 Mo.App. 647; Frank v. Curtis & Son, 58 Mo.App. 349; Klie v. Wellman, 189 Mo.App. 601; Hardy v. Lewis Automobile Co., 297 S.W. 169; McClelland v. Dougherty, 204 S.W. 201; Stoker v. Enniff, 33 S.W.2d 977; Henderson v. Cape Trading Co., 289 S.W. 332; State ex rel. Mann v. Trimble, 232 S.W. 100; Gordon v. McLearn, 185 S.W. 803, 123 Ark. 496.
This is an action for damages for wrongful and malicious garnishment. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for $ 2,350 actual damages and $ 850 punitive damages, or for the total sum of $ 3,200. Thereafter defendant's motion for a new trial was sustained upon two assigned grounds of the motion; and from the order so entered, plaintiff has duly appealed.
Plaintiff, by trade, is a maintenance man, experienced in the work of taking care of motors and pipe lines and of setting up motors for operating machinery. In 1925, after eleven and a half years' service with the Union Electric Light & Power Company, he left that company's employment, and secured a similar position with the John Nooter Boiler Works Company, at 1401 South Second Street in the City of St. Louis. The record affirmatively shows no more than that his connections with the latter company were severed in the late spring of 1930, but plaintiff's offer of proof, after objection to the evidence was sustained, was that he was discharged, according to a fixed rule of the company, because the garnishment in question was run against him.
But to get at the case in its chronological order, it appears that in October, 1925, plaintiff and his divorced wife, Irene B. Foley, who were contemplating a reconciliation, went to defendant's furniture store to look at some kitchen cabinets. They found one cabinet that they liked rather well, but it was not purchased, no deposit was made upon it, it was not put away for plaintiff's account, no credit reference was given, and no chattel mortgage was signed. When cross-examined about all these matters, plaintiff's answers were positive, as was also his testimony that he had never purchased any merchandise from defendant.
Some months later it seems that the former Mrs. Foley bought a trunk from defendant and had it delivered to her at her address on Hortense Place, where she received for it as "Mrs. William Foley," though her name at that time was "Ryan." Apparently when her reconciliation with plaintiff had failed, she had married for the second time. But though the trunk was delivered to plaintiff's ex-wife on Hortense Place, it was charged to the account of plaintiff at 913a Montgomery Street, where he had been living at the time of his visit to defendant's store.
The account as originally opened was for $ 25.50, the purchase price of the trunk, but by subsequent installment payments the balance due was reduced to $ 13.50.
The first information plaintiff had of the matter was on November 28, 1928, when he received a letter from defendant, asking him to remit the balance of $ 13.50 due on the account, and warning him that upon his failure to remit, the matter would be turned over to the proper authorities. Upon receipt of such letter, plaintiff called at defendant's store and had an interview with the writer of the letter, explaining the separation between himself and his divorced wife, and stating generally the reasons why he was not liable on the account. On the occasion of this visit he was treated very courteously by defendant's representative, who, after a cursory examination which included an inspection of the company's records, accepted plaintiff's explanation of the transaction and assured him that he would not be bothered again.
A few months elapsed, when plaintiff received a second letter from defendant, of much the same tenor as the first, advising that he should come down to defendant's place of business and avoid further trouble. In compliance with the demand, plaintiff again called at defendant's store, where he was treated very discourteously by the one to whom he was referred on this occasion. Plaintiff had neglected to bring his letter with him, and defendant's representative refused to go into the company's files for the carbon copy, but abruptly told plaintiff to come back and bring his letter with him if he wanted to get any further satisfaction.
The next plaintiff heard of the matter was when he was summoned to appear in the justice's court on July 23, 1929, to answer to the suit on the account which defendant had meanwhile filed against him. On the return day plaintiff appeared in the justice's court; and when his name was called he stepped forward and explained the whole situation to the justice in the presence of defendant's attorney. At the conclusion of the examination, which included the submission of his decree of divorce, the justice, with the acquiescence of defendant's attorney, dismissed the case and so noted on the files.
Later plaintiff received a third letter from defendant, stating that if he did not pay his account, action would be taken against him; and upon the receipt of such letter plaintiff went back to the justice's court and requested the assistance of the justice. The latter thereupon prepared and gave plaintiff a letter addressed to Mr. Yedelin, defendant's credit manager, in which the justice advised defendant, in effect, that the case had been dismissed and the order of dismissal entered in agreement with defendant's attorney.
Upon being given the letter by the justice, which was on October 14, 1929, plaintiff again went to defendant's store to see Mr. Yedelin, but not finding him in was referred to some one else in the credit department. Plaintiff read the justice's letter to defendant's representative, whereupon the latter got out the company's files and told plaintiff that the company had a judgment against him, and intended to sue out a garnishment to collect the judgment debt of $ 13.50.
As a matter of fact, on April 23, 1930, an execution and garnishment was requested by defendant, plaintiff's employer, the John Nooter Boiler Works Company, being named as garnishee. The clerk of the justice's court testified that he issued the garnishment at defendant's request without examining the record for himself to determine if a judgment had been entered, merely assuming in the rush of business that a garnishment would not be requested without a judgment upon which to base it. Summons to garnishee was served upon plaintiff's employer, returnable May 6, 1930.
After the garnishment papers had been made out, the clerk later in the day prepared to make the entry in his docket, when he discovered that the action on the account had been dismissed and no judgment entered. He...
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