Kauffman v. Babcock

• Decision Date: 18 January 1887
• Citation: 2 S.W. 878
• Court: Texas Supreme Court
• Parties: KAUFFMAN and another <I>v.</I> BABCOCK.

2 S.W. 878

KAUFFMAN and another

v. BABCOCK.

Supreme Court of Texas.

January 18, 1887.

Appeal from district court, Webb county.

Showalter & Nicholson and R. G. Street, for appellants. McLane & Atlee and E. F. Hall, for appellee.

WILLIE, C. J.

The appellee sued Kauffman & Runge and David Gonzales, sheriff of Webb county, claiming actual and exemplary damages for wrongfully and maliciously suing out a writ of attachment, and levying the same upon a stock of goods belonging to the appellee, and injuring his business reputation and credit. Kauffman & Runge answered by general denial, and also justified the seizure, and pleaded that the attachment was sued out without malice, and upon probable cause. Judgment was rendered in favor of Gonzales, but against Kauffman & Runge for 93 cents actual and $1,500 exemplary damages. From this judgment Kauffman & Runge have appealed.

It was shown upon the trial that the goods were retained in the possession of the sheriff for three days after their seizure, and were then returned to Babcock, the attachment suit having been settled. The 93 cents found by the jury as actual damages was the interest for three days, at 8 per cent. per annum, upon $1,400, the value of the goods as found by the jury. This was the proper measure of damages, if the attachment was wrongfully sued out, and the court so instructed the jury at the request of the appellants themselves. There was ample proof to show that the goods were worth $1,400 at the date of seizure.

The appellants complain that the charge of the court, in one part of it, authorized the jury to find exemplary damages though there was probable cause for suing out the writ; and, in another part, authorized such a finding if there was no probable cause, though no malice was made to appear. The main charge, taken alone, may be susceptible of this construction, but the instructions given at the request of the appellants cured all errors in this respect. In these the jury were instructed, in effect, that malice and probable cause must both appear to entitle the plaintiffs to a verdict for exemplary damages. The eighth charge does not instruct the jury that, if the attachment was wrongfully sued out, they might find vindictive damages. After the judge had drawn a distinction between the circumstances which would justify the finding of actual damages, and those which would warrant exemplary damages, he told them that they should state (1) whether the attachment was wrongfully sued out; (2) the amount of actual damages sustained thereby, if any; (3) the amount of exemplary damages allowed, if any. The jury could not have been misled into supposing that the court by this language intended to recall and repudiate all it had previously said, and lay down the law precisely to the contrary. It requires a very strained construction to connect the first with the third subdivision of the charge, and to make the latter dependent upon the former; and the construction is against reason, in view of the previous portions of the charge. The clear meaning of the charge is that, if any exemplary damages are allowed under the principles already laid down in the charge, the jury must state their amount.

The charge, we think, is not subject to the objection of repeating too often the...