Gore v. Gorman's Incorporated, 9643.

• Decision Date: 19 April 1956
• Docket Number: No. 9643.,9643.
• Citation: 143 F. Supp. 9
• Parties: Felix GORE, Plaintiff, v. GORMAN'S Incorporated, Defendant.
• Court: U.S. District Court — Western District of Missouri

143 F. Supp. 9

Felix GORE, Plaintiff, v. GORMAN'S Incorporated, Defendant.

No. 9643.

United States District Court W. D. Missouri, W. D.

April 19, 1956.

Ray D. Jones, Jr., Kansas City, Mo., for plaintiff.

Jules E. Kohn, Ralph J. Tucker, Kansas City, Mo., for defendant.

DUNCAN, Chief Judge.

This is an action to recover damages, actual and punitive, for malicious prosecution in attempting to collect an account which had been discharged in bankruptcy. The defendant introduced no evidence, and the facts are not in dispute.

The plaintiff, a resident of the State of Kansas, owed the defendant Gorman's Inc., an account, apparently for merchandise purchased by him, and on May 20, 1953, the defendant obtained a judgment against the plaintiff in the Magistrate Court in Kansas City, Missouri, in the sum of $463.46. (At that time the plaintiff was a resident of Missouri). Thereafter, plaintiff filed a petition in bankruptcy, scheduling the above judgment as an obligation. The claim was allowed and plaintiff was discharged in bankruptcy in April 1954, which discharge included the judgment due and owing to the defendant.

Within a short time after the discharge, collectors for the defendant began calling plaintiff at his place of employment, insisting that he pay the obligation. He reminded them of what they already knew, that he had taken bankruptcy, and that he had been discharged from the obligation owed the defendant. However, they continue to demand payment of him, and finally, on November 19, 1954, a second suit was brought against the plaintiff on this debt by "Namrog Investment Company, Inc.," in the Justice of the Peace Court of Harry E. Pearce, within and for Quindaro Township, Wyandotte County, Kansas, in the amount of $300, said amount being the jurisdictional amount of that court. It is admitted that the indebtedness claimed to be due the defendant was for the same amount for which it had received judgment in the Magistrate Court at Kansas City, Missouri, and which had been listed and discharged in bankruptcy. The amount was reduced to $300 solely for the purpose of keeping within the jurisdiction of the Justice of the Peace Court.

The name "Namrog" is "Gorman" spelled backward, and this was the name of the company used by Gorman's Inc., in its collections. It is admitted that whatever actions were taken by "Namrog" were taken as the agent of the defendant, and that the defendant is responsible for them.

On the same day that the second suit was filed, a request was filed for a "garnishee's summons". The notation on the request was "Balance of Account of $463.62. Last payment Aug. 15, 1952. Send him in to me. Sure, this one is rough. No other release. I have a bad check." On November 23, 1954, the "garnishee's summons" was issued by the Justice of the Peace, intended to be returnable on December 6, but erroneously stated as returnable on November 6. There is no dispute about this fact. The summons was immediately served by the Marshal on Helms, Inc., plaintiff's employer, garnishing his wages then due and to become due.

Thereafter, the plaintiff, in an attempt to have the garnishment released, discussed the matter with several persons in positions of authority with the defendant, but was unable to do so. The request for the issuance of the garnishment, as shown thereon in the handwriting of a representative of the defendant, stated, for the benefit apparently of the Justice of the Peace, that the only way to have the matter released was for the plaintiff to present himself to the defendant, that it was a rough case. The employees of the defendant with whom the plaintiff discussed the question of release, told him that they had no authority to release the garnishment, except through payment, and that he would have to see Mr. Gorman. Plaintiff testified that he made several attempts to see Mr. Gorman, but was told each time that he would not be permitted to do so. Finally, he went to a lawyer and through the efforts of the lawyer, the garnishment was released on November 29, 1954.

It appears that the credit manager of defendant had been designated by the Justice of the Peace as a clerk of the court for the purpose of executing releases of such garnishment proceedings instituted by his employer, and it was he who finally executed the release here.

Plaintiff's regular pay days were on the 15th and 30th or 31st of each month, so at the time of the service of the garnishment on the 23rd of November, 1954, there was due and owing him from the employer garnishee, such sums as may have been earned by him after the pay day on the 15th, and it was released before his pay day on November 31.

Plaintiff states that during the time the garnishment was pending, he discussed the matter with his employers, and that he was told that he would have to clear it up if he expected to keep his job.

After the garnishment was released, he remained in the employ of Helms, Inc., until March 31, 1955, at which time he either left its employ, or was discharged. He says that he was discharged, and the credit manager, who testified on behalf of plaintiff, says that he left of his own free will. It is revealed in evidence, however, that two other incidents occurred with respect to obligations owed by the plaintiff, subsequent to the one in controversy here, one of which was a criminal matter, and plaintiff says that it was the accumulation of the incidents, including the one in controversy here, which resulted in his discharge by a Mr. Bushey, an executive of Helms, Inc. The "bad check" referred to in the memorandum attached to the "garnishee's summons" had no connection with the account on which the claim in controversy was based.

During his employment by Helms, Inc., plaintiff was earning $350 to $375 per month, which included a fixed weekly amount and commissions. After he left Helms, Inc., he immediately went to work for a tire company at $75 a week and commissions, where he earned approximately $500 a month, so, whether he was discharged or not, as a result of the garnishment proceedings, the evidence fails to reveal that he suffered any loss of earnings. In fact, he had a better job than he had while employed by Helms.

Plaintiff seeks to recover damages for mental anguish, embarrassment and other inconveniences by way of punitive damages, as a result of the garnishment. He says that his sales fell off, and that he was much disturbed and grieved by other peoples' impressions of him, growing out of this garnishment. It is difficult to conceive that he was greatly mortified or embarrassed as a result of this transaction, in view of the fact that his bankruptcy schedule showed indebtedness of various types and kinds of approximately $12,000. I do not make this observation as a reflection on the plaintiff, or because he did take bankruptcy, which he had a perfect right to do, but I am unable to see how he became sensitive so suddenly as a result of one of his financial obligations.

The defendant offered no evidence, and the basic facts are not in dispute; the only factual question in dispute is whether or not there was any actual damages. The plaintiff testified that he consulted a lawyer, and that the lawyer brought about the release of the garnishment, and for that service, he was charged $35. Certainly this is an out-of-pocket expense or obligation as a result of the garnishment, but I am unable to find evidence of any other actual damage which was sustained by him.

There is no question about the knowledge of the defendant that the judgment obtained against plaintiff in Missouri was scheduled in bankruptcy, and that plaintiff was discharged. The "account" which was the basis of the suit in the Justice of the Peace Court of Kansas was the same account which had been reduced to judgment in Kansas City, Missouri, and which was scheduled in bankruptcy. Between the time he was discharged in bankruptcy and the time the new suit was brought against him in Kansas on the same obligation, plaintiff apparently received numerous calls from the collectors of the defendant insisting that he pay the obligation; some of them were undoubtedly of a threatening nature, i. e., by "threatening" I mean that they would resort to some means of forcing collection if he did not pay up.

I think there can be no doubt that plaintiff was harassed by these calls and was subjected to embarrassment by reason of them. It seemed to be the attitude of the defendant's collectors that they proposed to press collection of the account to the point where it created such pressure that defendant would be required to pay in self-defense, although they well knew collection could not legally be enforced. Defendant certainly well knew the effect of a garnishment proceeding and its effect upon an employee —few employers will countenance such proceedings against their employees.

The defendant bases its defense upon the legal ground that it had a right to bring the action in Kansas by "summons to Garnishee" upon the same account which had been reduced to judgment in Missouri, and from the obligation of which plaintiff had been discharged in bankruptcy; that a discharge in bankruptcy is not an extinguishment of the debt, but is simply a bar to legal enforcement of the debt after the discharge in bankruptcy, if affirmatively pleaded by...