Henderson v. Weidman

• Decision Date: 24 March 1911
• Docket Number: 16,329
• Parties: IRA E. HENDERSON ET AL., APPELLEES, v. HENRY E. WEIDMAN, APPELLANT
• Court: Nebraska Supreme Court

130 N.W. 579

88 Neb. 813

IRA E. HENDERSON ET AL., APPELLEES, v. HENRY E. WEIDMAN, APPELLANT

No. 16,329

Supreme Court of Nebraska

March 24, 1911

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed on condition.

Affirmed on condition.

E. E Spencer and John E. Lowe, for appellant.

C. O Whedon, J. A. Brown and J. T. Allensworth, contra.

OPINION

LETTON, J.

This is an action to recover damages for the malicious attachment of the household goods of the plaintiffs, who are husband and wife. The defendant is a merchant at Havelock to whom the plaintiffs were indebted in a small sum. On the 10th day of June, 1910, they intended to remove to Utica, Nebraska, and their household goods were packed and taken to the station at Havelock for shipment to that place. The next day they went to Utica and rented a house. Soon after they were notified that their goods had been attached by the defendant. They immediately returned to Lincoln and employed an attorney to act for them in the suit. The goods were held until the last week in July, when they were released from the lien of the attachment. Plaintiffs did not return to Utica, but the husband found employment in Lincoln, where they have since resided.

The affidavit for attachment was defective, and the goods seized were specifically exempt. These being the facts, the attachment proceedings were unwarranted, and the plaintiffs are entitled to recover from the defendant their actual damages sustained. The case was tried to a jury, who returned a verdict in the plaintiff's favor in the sum of $ 808.12.

A number of errors are assigned, but the principal contention is as to the allowance of damages for mental suffering and humiliation, the defendant insisting that the evidence is not sufficient to sustain a verdict in this respect. As we have seen, the plaintiffs had left Havelock before the goods were attached and never resided there afterwards. The only testimony in the record in respect to mental suffering or humiliation is as follows: The plaintiff Henderson testifies: "Q. You may state what, if any effect on your feelings the attachment suits had, the attaching of your household goods, with reference to humiliation and mental anguish? A. Well, it was a whole lot. It would make any man--. Q. Just finish your answer, go on and finish your answer. A. Like any other man would feel, to have the last thing he had taken. Q. State whether or not it was a source of humiliation to you? A. It was. Q. Was it a source of mental worry and anguish? A. It was." Mrs. Henderson's testimony in this respect is: "Q. Well, state what effect the attachment of these goods had upon your peace of mind and feelings in the matter? A. I should think it would hurt any woman's feelings if somebody had taken the last thing she has, even to her clothes. It would be trying to anybody's feelings. Q. Did it have that effect upon your feelings? A. It did." The question as to how far compensation for mental suffering may be allowed in cases of trespass to personal property is considered in Murray v. Mace, 41 Neb. 60, 59 N.W. 387, and it is there held that in a case where the unlawful act is inspired by fraud, malice, or like motives, mental suffering is a legitimate element of damage. "But in cases of trespass, where personal property is taken and carried away, in the absence of fraud, malice, or other aggravating circumstances, the measure of damage is compensation to the plaintiff for his loss, which...