Jones Leather Co. v. Woody

• Decision Date: 30 January 1917
• Docket Number: 7391.
• Citation: 169 P. 878,67 Okla. 184,1917 OK 136
• Parties: JONES LEATHER CO. v. WOODY.
• Court: Oklahoma Supreme Court

169 P. 878

67 Okla. 184, 1917 OK 136

JONES LEATHER CO. v. WOODY.

No. 7391.

Supreme Court of Oklahoma

January 30, 1917

Rehearing Denied Jan. 8, 1918.

Dissenting Opinion Jan. 15, 1918.

Syllabus by the Court.

Exemplary damages are imposed on the theory of punishment to the offender for the general benefit of society, and as a restraint to the transgressor, and are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action. Rhyne et al. v. Turley, 37 Okl. 159, 131 P. 695.

In a civil action for damages for wrongful attachment, where defendant relies upon the advice of counsel as a defense, the disclosure to counsel required of him before acting upon such advice is not a disclosure of all the facts discoverable, but all the facts within his knowledge. If he knows facts enough either personally or by credible information, which, when fairly and fully stated to reputable counsel for the purpose of obtaining legal guidance, results in advice which is honestly followed in commencing an attachment proceeding that is sufficient.

In an action for malicious prosecution, the burden of proof is upon the plaintiff to prove want of probable cause, and where the evidence shows that the prosecutor laid all the facts before competent counsel, and acted in good faith upon the advice given, he is exonerated from all liability for exemplary damages, and where the evidence fails to show malice in instituting the proceedings, and the absence of probable cause, it becomes the duty of the court, and it should upon request, direct a verdict for defendant.

In such an action, proof of the dissolution of the attachment does not show malice, or the want of probable cause for commencing the attachment proceedings.

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by J. L. Woody against the Jones Leather Company. Judgment for the plaintiff, and defendant brings error. Reversed.

See also, 37 Okl. 371, 133 P. 201.

Thacker J., dissenting.

Chas. H. Garnett, of Oklahoma City, for plaintiff in error.

S. A. Horton, of Oklahoma City, for defendant in error.

GALBRAITH C.

This appeal is from a judgment rendered upon the verdict of a jury in an action for exemplary damages, claimed to have been sustained on account of the wrongful levy of an attachment order in an action for debt.

The Jones Leather Company, the plaintiff in error, was a wholesale dealer located at Kansas City, Mo.; J. L. Woody, the defendant in error, was a retail dealer located at Oklahoma City. In April, 1911, Woody was indebted to the Jones Leather Company upon an open account for merchandise then past due. The president of the Jones Leather Company, who was also one of its traveling salesmen, on a regular trip to Oklahoma City, in April, 1911, called upon Woody and sold him a small bill of goods, and then presented the past-due account and demanded payment. Woody could not pay all of the account, but arranged a settlement with Jones by which he made a small payment in cash and gave checks on his bank with advance dating for the balance. When this settlement was reported to the house at Kansas City it was repudiated, and another Mr. Jones, vice president of the company, made a special trip to Oklahoma City for the purpose of collecting the amount due on the Woody account. After arriving here he consulted his lawyer, and after laying all the facts before him he advised that grounds for an attachment existed. Suit was filed on the account, and an affidavit and bond for attachment were filed, and the attachment order issued, and levied upon Woody's stock of goods. A motion to dissolve the attachment was presented, and after evidence taken thereon was sustained, and the goods ordered returned to Woody. From this order an appeal was prosecuted to the Supreme Court, and the order was affirmed. Jones Leather Co. v. Woody, 37 Okl. 371, 133 P. 201.

When this action was commenced the petition contained two counts, one charging a cause of action for actual damages, and the other alleging a cause of action for exemplary damages. The defendant interposed a demurrer to the petition on the ground of a misjoinder of causes of action. This demurrer was sustained, and by order of court the action was continued on the first cause of action set out in the petition, and the petition was refiled as another suit on the second count, that being the count claiming exemplary damages. When called for trial the two counts or causes of action were consolidated and tried as one cause. Separate judgments were rendered in each on the separate verdicts returned for the plaintiff. An appeal was prosecuted to this court from such judgments, and after proceedings in error were perfected the judgment rendered in the cause for actual damages was settled, and that cause dismissed. Thus the appeal from the judgment rendered in the action for exemplary damages remained for consideration.

Objection is here made that the judgment in this cause cannot be sustained because it is for exemplary damages only, and that "where no actual damage has been suffered no exemplary damages can be recovered." The case-made shows that actual damages were sustained in this transaction, and that the same jury that returned a verdict in this case also returned a verdict in the action for actual damages, and that these were rendered at the same trial and on the same day, and that the judgment for actual damages has been paid and that cause has been dismissed. In any event, whatever error, if any, may have been committed by the trial court in requiring a severance of the two causes of action was induced by the plaintiff in error, and it cannot now take advantage of such This contention is therefore wholly without merit.

It is again argued in the brief that the court in its instructions to the jury failed to state the law fully and correctly. The record, however, fails to show that any exceptions were taken to the instructions when given, and therefore they are not brought up for review, except in one instance.

At the close of the testimony the Jones Company requested the court to instruct the jury to return a verdict for it. This was denied and exception saved. This ruling is assigned as error, and the same question is presented by the assignment to the order overruling the demurrer to plaintiff's evidence. The questions raised by these assignments are that the evidence fails to show malice in making the attachment affidavit and the absence of probable cause for instituting the attachment proceeding, and that the burden was upon the plaintiff to show the presence of these elements in order to maintain this action. The defendant in error apparently relied upon the proof that the attachment upon the hearing was adjudged to have been wrongfully issued, and was dissolved, and that this judgment had been affirmed on appeal to the Supreme Court. This evidence was not sufficient to show malice in making the attachment affidavit, or the want of probable cause for instituting the attachment proceedings. Lindsey v. Couch, 22 Okl. 4, 98 P. 973, 18 Ann. Cas. 60; El Reno Gas & Electric Co. v. Spurgeon, 30 Okl. 88, 118 P. 397; Central Light & Fuel Co. et al. v. Tyron, 42 Okl. 86, 140 P. 1151; Sims v. Jay, 155 P. 615.

Exemplary damages, such as were sought in this action, are imposed by the law on the theory of punishment of the offender for the general benefit of society, and as a restraint to the transgressor, and are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action. Rhyne v. Turley, 37 Okl. 150, 131 P. 695. The court, in the opinion in the case last cited, after quoting section 2851, Rev. L. 1910, authorizing exemplary damages where the defendant has been guilty of "oppression, fraud, or malice, actual or presumed," say:

"This statute is substantially the common law. They have no relation to the question of compensation for loss sustained, but are permitted on the theory of punishment to the offender for the benefit of the community, as a restraint to the transgressor. Such damages are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action." (Citing a long list of cases.)

In Lindsey v. Couch, 22 Okl. 4, 98 P. 973, 18 Ann. Cas. 60, the court said:

"In order to maintain this action it was incumbent on the plaintiff to prove want of probable cause; that is, that the prosecution of which he complains was not based upon such facts and circumstances, known to defendant at the time sufficient in themselves to lead him, as a reasonable and cautious man, to believe the plaintiff probably guilty of the crime charged, but was actuated by malice or some improper or sinister motive. Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116."

The evidence showed that Mr. Jones, who made the attachment affidavit, had no personal dealings or acquaintanceship with Mr. woody, and that he did not know him by sight. The evidence also shows that Jones knew at the time of making the affidavit that the account against Woody was past due; that Woody some time before had traded $1,600 worth of his stock for unimproved real estate, had allowed his checks, given his creditors as payments on accounts, to go to protest, and that the reports of the commercial agency on Woody showed him to be slow and uncertain pay; that he was making arrangements to change his place of business; and that Jones believed that he was offering to sell not only his goods, but his work tools that when Jones came to Oklahoma City for the purpose of collecting the account of his company against Woody, he went to see his counsel and advised with him about the proper method to pursue,...