Frick-Reid Supply Co. v. Hunter
| Decision Date | 13 April 1915 |
| Docket Number | Case Number: 4026 |
| Citation | 148 P. 83,47 Okla. 151,1915 OK 175 |
| Parties | FRICK-REID SUPPLY CO. et al. v. HUNTER. |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL--Direction of Verdict--Evidence. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence reasonably to sustain a verdict, should the jury find in accordance therewith.
2. ATTACHMENT--Wrongful Levy--Property of Third Person--Liability. For the wrongful levy of a writ of attachment upon property not belonging to the defendant in the writ, the plaintiff who procures the attachment to issue, and in person or through another directs the officer in making the levy, is liable in trespass to the owner of the property attached.
3. TRESPASS--Persons Benefited--Consent or Ratification--Knowledge--Liability. To make a party liable for a previous trespass committed by another, though the act was done in his name and for his benefit, it must be proved that he assented to or ratified the act with full knowledge of the facts.
4. TORTS--Wrongdoer by Ratification--What Constitutes. In order to constitute one a wrongdoer by ratification, the original act must have been done in his interest, or been intended to further some purpose of his own.
5. ATTACHMENT--Wrongful Levy--Ratification--Liability. Where, after an officer makes an unlawful levy on property of a third party, the plaintiff in attachment, with knowledge of the facts, defends the wrongful act, he will be held to have ratified the same, and to be liable in an action of trespass as an original wrongdoer.
6. SAME--Notice of Disapprobation. One who would avoid responsibility for an act committed in his interest by an officer should, when knowledge of the wrongful act is brought to his attention, make known his disapprobation thereof; otherwise he will be held to have ratified it.
7. APPEAL AND ERROR--Objection Below--Necessity--Interest. Where, in an action for trespass de bonis asportatis, the judgment rendered on the verdict of the jury allows interest thereon at 7 per cent. per annum from date of rendition, and no objection thereto is made in the trial court, this court will not, on appeal, consider the alleged error in allowing interest in excess of 6 per cent. per annum.
Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.
Action by Frank J. Hunter against the Frick-Reid Supply Company, a corporation, and another. Judgment for plaintiff, and defendants bring error. Affirmed.
Wm. T. Hutchings, for plaintiff in error Frick-Reid Supply Co.
Charles A. Cook, for defendant in error.
¶1 On March 20, 1909, the Frick-Reid Supply Company, a corporation, instituted in the county court of Muskogee county an action on an account owing to it by a copartnership known as the Hunter Drilling Company, and at the same time caused to be issued out of said court an order of attachment, which on the 22d day of March thereafter was levied upon a certain well-drilling outfit and tools of the drilling company, and upon about 600 feet of pipe and a steam pump belonging to Frank J. Hunter, the defendant in error, and a partner in the Hunter Drilling Company. At the time of the levy, Hunter was using the pipe and pump in connection with other tools in drilling an oil well. When the levy was made, the pipe and pump were disconnected and removed from the premises. On the 10th day of June following, on a hearing had before the county court, the order of attachment was discharged, and on October 13th of the same year the action was dismissed upon plaintiff's failure to appear and prosecute. This action was brought by Frank J. Hunter against the attaching creditor and Charles A. Weil, his copartner in the drilling company, to recover damages sustained by him on account of the unauthorized act of the officer in levying upon and taking from his possession his individual property. At common law such an action was known as trespass de bonis asportatis. While the action was pending, the defendant, Charles A. Weil, died, and thereafter it was revived in the name of Blanche B. Weil, executrix of the last will and testament of Charles A. Weil, deceased. Trial being had, a verdict was returned against the defendants in the sum of $ 821. From the judgment, both defendants bring error.
¶2 The plaintiff in error Blanche B. Weil, executrix, has filed no brief in this court, and therefore, as to her, the. appeal will be considered to have been abandoned.
¶3 Four errors are assigned in the brief of plaintiff in error Frick-Reid Supply Company. The first involves the. giving of instruction No. 2, and the second the refusal of the court to peremptorily instruct the jury to return a verdict in favor of the defendant Frick-Reid Supply Company. It is obvious, however, from the brief, that plaintiff in error relies, not upon the giving of the instruction complained of, but upon the failure to give the peremptory instruction. The question presented to a trial court on a. motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may reasonably be drawn therefrom, there is enough competent evidence reasonably to sustain a verdict, should the jury find in accordance therewith. Frick v. Reynolds et al., 6 Okla. 638, 52 P. 391; Richardson et al. v. Fellner et al., 9 Okla. 513, 60 P. 270; Solts v. Southwestern Cotton Oil Co., 28 Okla. 706, 115 P. 776; Moore v. First Nat. Bank of Iowa City et al., 30 Okla. 623, 121 P. 626.
¶4 The original action, as well as the attachment proceedings, was procured to be brought at the instance of Charles A. Weil, a partner of Frank J. Hunter in the drilling company. Mr. Huckleberry, the attorney for the supply company, testified that at the request of Mr. Weil he went to the latter's office and talked with him concerning the claim of Frick-Reid Supply Company against the Hunter Drilling Company; that Weil told him who composed the partnership, and the amount of its indebtedness to the supply company; that he (Weil) said he did not want to pay the account himself, but believed that, if suit were brought against the drilling company and its property attached, it would result in a settlement of the affairs of the company between the partners, and the payment of the account; that Weil requested that suit be brought promptly, and furnished the witness with the data from which both the petition and affidavit for attachment were drawn. Weil also informed the witness that he would furnish a man who knew the partnership property, who would go with the officer levying the attachment, and point it out to him, and who could thereafter be appointed custodian; that Weil gave the witness the name of the party, and said, when the officer was ready to go, to advise him, and he would direct his man to go with the officer. Witness said he thought the name of the man referred to by Mr. Weil was John Schwab, and that perhaps he (the witness) afterwards saw the man himself, at least he understood that Schwab was familiar with the property and could point it out to the officer, so that no mistake would be made in levying thereon; that Weil also told the witness what property belonged to the drilling company. Clark Compton, the deputy sheriff making the levy, testified that, at Weil's request, Schwab accompanied him to and pointed out the property to be attached, which, it proved afterwards, included the individual property of Hunter. That Schwab, acting for Weil, with the knowledge and consent of the plaintiff's attorney, accompanied the officer and was instrumental in causing the attachment to be levied upon Hunter's property, stands undenied. That Hunter was damaged as a result of the levy on his property is not questioned by the appeal. Nor can there be any question as to the liability of Weil for the part taken by him in the unlawful seizure and removal of Hunter's property.
¶5 With reference to the liability of the supply company, the rule appears to be settled that one who places in the hands of an officer a valid writ, without direction as to the manner of its service, will not be liable for a tort committed by the latter while engaged in the execution thereof. It is indeed a very general rule that when an officer oversteps the authority of his writ and commits a trespass, as by levying on property not belonging to the debtor, the plaintiff in the writ, who neither advised, directed, nor assisted the officer in his departure from the command of the writ, is not responsible with the officer for the trespass. Cooley on Torts, p. 218; Drake on Attachments, sec. 196; note to Kirkwood v. Miller, 5 Sneed (Tenn.) 455, 73 Am. Dec. 134, 141; Murray v. Mace, 41 Neb. 60, 59 N.W. 387, 43 Am. St. Rep. 664; Butler v. Borders, 6 Blackf. (Ind.) 160; Adams v. Savery House Hotel Co., 107 Wis. 109, 82 N.W. 703; Munns v. Loveland, 15 Utah 250, 49 P. 743; Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551; Deal v. Bogue, 20 Pa. 228, 57 Am. Dec. 702; Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129.
¶6 On the other hand, as said in Stump v. Porter, 31 Okla. 157, 120 P. 639, the plaintiff is liable where property is attached not belonging to the defendant, where he either actively participated, directed the levy to be made, ratified or knowingly received the benefits thereof after the same was made.
¶7 Plaintiff's petition is drawn upon the theory that the supply company and Weil acted in concert in procuring the issuance and levy of the attachment, and this charge appears to be borne out by the evidence. Weil, as we have already seen, was the procuring cause, both in causing the action to be brought and in directing the levy...
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