Gregory v. Woodbery

• Decision Date: 26 March 1907
• Parties: GREGORY v. WOODBERY.
• Court: Florida Supreme Court

43 So. 504

53 Fla. 566

GREGORY v. WOODBERY.

Florida Supreme Court, Division A.

March 26, 1907

Error to Circuit Court, Gadsden County; John W. Malone, Judge.

Action by R. S. Woodbery against G. S. Gregory. Judgment for plaintiff. Defendant brings error. Reversed, and new trial granted.

Syllabus by the Court

SYLLABUS

Independent of a statute to that effect, counsel or attorney's fees are not recoverable as an element of damage in an action of replevin. The word 'damages,' in paragraph 1 of section 1724 of the Revised Statutes of 1892, is not sufficiently comprehensive to embrace the atttorney's fees incurred by the plaintiff in prosecuting his action of replevin.

A motion to strike out from the declaration in an action of replevin that portion thereof which seeks to recover attorney's fees as an element of damage is the proper method of attack, and should be granted.

Under the provisions of chapter 5191, p. 134, Laws of 1903 whenever a census of a city or town is taken as provided therein, such census is admissible as legal evidence of the number of bona fide inhabitants of such city or town in all questions wherein the same may be at issue.

The acts of de facto officials are valid as to the effect upon the public, though they may not be able to protect themselves in reference to their action.

In an action of replevin, where the testimony does not show any willful wrong, fraud, or malice on the part of the defendant there is no occasion for the giving of a charge or instruction defining punitive damages.

COUNSEL E. C. Love, for plaintiff in error.

R. H Buford and J. Baxter Campbell, for defendant in error.

OPINION

SHACKLEFORD C.J.

This is an action of replevin, instituted by the defendant in error R. S. Woodbery, against the plaintiff in error, G. S. Gregory, in the circuit court for Gadsden county, to recover the possession of a certain mule and for damages. The declaration is as follows:

'Now comes R. S. Woodbery, plaintiff, and sues G. Scott Gregory, defendant, in this suit.

'First Count.

'For that the defendant heretofore, and before the commencement of this suit on the 6th day of September, A. D. 1905, wrongfully took possession and wrongfully and unlawfully detained one stud mule, known as 'Bluffer Scott,' of the value of one hundred and twenty-five dollars, the property of the plaintiff, and refused to surrender possession of said mule to the plaintiff on his demand therefor, although the plaintiff was then and is now the owner of the said mule and lawfully entitled to the possession of the same, and although said mule has not been taken for any tax, assessment, or fine levied by virtue of any law of the state of Florida, nor seized under any execution or attachment against the property, goods, and chattels liable to execution, and the plaintiff claims the return of the said mule or its value, and one hundred and twenty-five dollars damages for its detention.

'Second Count.

'And for that, whereas, on the 6th day of September, A. D. 1905, defendant wrongfully detained one stud mule, known as 'Bluffer Scott,' of the value of one hundred and twenty-five dollars, and refused to surrender possession of the said mule to the said plaintiff on his demand therefor, although the said plaintiff was then and is now the owner of said mule and lawfully entitled to the possession of the same, whereby the plaintiff was put to the expense of retaining counsel to prosecute this suit to recover possession of said mule, and was thus damaged to the extent of twenty-five dollars. Wherefore the plaintiff claims the possession of said mule, or its value of one hundred and twenty-five dolars, and one hundred and twenty-five dollars as damages for its wrongful detention, including a special damage of twenty-five dolars for retention of counsel in this suit.'

To this declaration the defendant interposed the following motion:

'Comes now the defendant in the abovestated cause, by his attorney, E. C. Love, and moves the court to strike out of the second count of plaintiff's declaration so much thereof as alleges as special damages the expense of retaining counsel to prosecute this suit to recover possession of the mule alleged in plaintiff's declaration, amounting to the sum of twenty-five dollars, for the reason that such attorney's fees is not a proper and legal element of damage.'

This motion was overruled by the court, whereupon the defendant filed a plea of not guilty. A trial was had before a jury, which resulted in a verdict in favor of the plaintiff; his damages being assessed at $25. Judgment was duly entered in accordance with the verdict against the defendant for the sum of $25 and costs, and finding that the plaintiff was entitled to the possession of the mule. To this judgment a writ of error was sued out by the defendant, returnable to the present term of this court.

Eight errors are assigned, but only two questions are presented by them which it is necessary for us to answer. The first is as to whether or not attorney's fees are recoverable by the plaintiff as an element of damage in an action of replevin. Assignments upon the denial of the motion to strike out that portion of the second count of the declaration which alleges as special damages the expense of retaining counsel to prosecute the action, upon admitting testimony over defendant's objection as to what would be a reasonable attorney's fee to allow plaintiff in action, upon the giving of a charge by the court of its own motion that 'attorney's fee for the plaintiff is a proper element of damage in this case' and the refusal of an instruction requested by defendant that 'in an action of replevin the plaintiff is not authorized to recover attorney's fees as part of his damages,' all present this question.

The property was not redelivered to defendant, and the answer to this question will depend on the determination of whether or not the word 'damages,' in paragraph 1 of section 1724 of the Revised Statutes of 1892 (of section 2188 of the General Statutes of 1906), is sufficiently comprehensive to embrace the attorney's fees incurred by plaintiff in prosecuting his action of replevin. This paragraph is as follows:

'(1) When Goods were Not Delivered to Defendant.--If it shall appear upon default of the defendant, or upon trial, or otherwise, that the goods described in the declaration were wrongfully taken or detained by the defendant, and the said goods shall have been delivered to plaintiff by the officer executing the writ, the plaintiff shall have judgment for his damages caused by the taking and detention, and for his costs of suit.'

The defendant admits in his brief that, 'independent of our statute, attorney's fees are not recoverable as an element of damage in an action of replevin, unless the taking and detention is willful, wanton, or negligent,' and cites a number of authorities to this effect. It is unnecessary to enter into any discussion of this principle or to refer to the many authorities cited to us. Upon this point the law seems to be well settled. As stated in Shinn on Replevin, § 651: 'In the absence of a statute to that effect, and in the absence of evidence showing willful wrong, fraud, or malice, counsel fees, traveling expenses, hotel bills, or time lost in prosecuting or defending an action of replevin, cannot be recovered as an element of damages.' Also see Cobbey on Replevin, §§ 920, 921; 24 Am. & Eng. Ency. Law (2d Ed.) 514. A number of authorities may be found cited in the notes to these authorities. The authorities are conflicting as to whether attorney's fees are recoverable as an element of damages even in that class of cases, whether replevin or other actions, where exemplary damages are proper, in the absence of a statute. It would seem that the weight of authority is against recovery of counsel fees as such as an element of damages even in that class of cases. See instructive note to Winkler v. Roeder, collating authorities, on page 158 et seq., 8 Am. St. Rep. We would also refer to 13 Cyc. 80 et seq. and authorities cited in notes. Be that as it may, we are not confronted with this question in the instant case, as the declaration therein does not allege any ground for the recovery of exemplary or punitive damages.

The plaintiff, in support of his contention, cites and relies upon Gonzales v. De Funiak Havana Tobacco Co., 41 Fla. 471, 26 So. 1012, wherein it was held that 'attorney's fees and other expenses incurred in relation to the attachment, or in procuring its dissolution are properly allowed as elements of damage in actions upon attachment bonds; but fees and expenses incurred in defending the principal suit cannot be allowed, in the absence of statute or a stipulation in the bond to that effect.' Plaintiff further contends that the statute is regard to attachments (section 1646 of the Revised Statutes of 1892; section 2110 of the General Statutes of 1906), and the statute in regard to replevin (section 1724 of the Revised Statutes of 1892; section 2188 of the General Statutes of 1906), 'are identical.' Is this contention well founded? We find that the attachment statute requires as a prerequisite to the issuing of the writ the filing of a bond 'conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiff's improperly suing out said attachment.' No such provision is found in the replevin statute, the first paragraph of which we have set out in this opinion. Again, if the plaintiff prevails in his action of attachment, no provision is made for his recovering attorney's fees as an element of damages. We utterly fail to see the identity of the two statutes, or even their analogy. The cited case fails to support the plaintiff's...