Kestler v. Kern

Decision Date15 October 1894
Docket Number353
Citation28 N.E. 726,2 Ind.App. 488
CourtIndiana Appellate Court

From the Clark Circuit Court.

Judgment reversed, with instructions to overrule the demurrer.

L. A Douglas, for appellant.

G. H Voight, for appellee.




Kestler sued Kern in the Clark Circuit Court, alleging in his complaint, in substance, that during the year 1889 he was a resident householder in Clark county, and was entitled to the benefit of the exemption laws of the State; that he owned no real estate, and his entire personal estate, including rights, credits and choses in action, was worth less than two hundred dollars; that he was a laborer, in the service of the Pennsylvania Company, a corporation which was operating a railroad running through said Clark county and extending into and across Jefferson county, in the State of Kentucky; that the defendant was a resident of said Clark county, and was engaged in the retail grocery business therein, and plaintiff was indebted to him on account to the amount of twenty dollars for groceries purchased of him, and that there were wages due plaintiff from said railroad company for his labor; that said company had offices and agents in said Clark county, and both parties to the action and said company were within the jurisdiction and subject to the process of the courts of said county, but on the 27th day of May, 1889, the defendant, well knowing the premises, wrongfully and unlawfully, and for the purpose of depriving plaintiff of his right to claim exemption under the laws of the State of Indiana, assigned and transferred his said claim against plaintiff to one Henry C. Heft, a resident of Jefferson county, Kentucky, without any consideration whatever, but for the purpose of having said claim sued in the State of Kentucky, and plaintiff's earnings due him from the railroad company as aforesaid attached for the payment of defendant's said account, and in pursuance thereof said Heft commenced a suit before a justice of the peace in Jefferson county, Kentucky, and attached the wages due plaintiff from said company, and took such additional steps in such proceeding that plaintiff's said wages were duly ordered by said justice to be paid in satisfaction of said claim and costs, which was thereafter done; that said Heft prosecuted such proceedings for and on behalf of the defendant, who obtained the proceeds thereof, and plaintiff was thereby deprived of the right of claiming said earnings as exempt from attachment for the payment of said debt, and by reason of such attachment said company discharged plaintiff from its service, all to his damage in the sum of five hundred dollars.

A demurrer was filed to the complaint and sustained, and judgment entered against plaintiff, from which he appeals, and assigns as error the ruling of the court upon the demurrer.

The complaint in the case of Uppinghouse v. Mundel, 103 Ind. 238, 2 N.E. 719, was similar to that in the case at bar, and was held bad on demurrer. That case is relied upon in support of the decision of the trial court.

In every civil action there are two essential ingredients; one is the injury or wrong inflicted, and the other is the law's measure of recompense. The absence of either is fatal to the action. City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821.

Where one does, in a proper manner, that which he has the lawful right to do, and damages result to another as a consequence, the law recognizes no liability, because there is no breach of legal duty, and consequently no legal injury. It is said to be damnum absque injuria. If, upon the other hand, one does an unlawful act, injurious in its consequences to every member of society in common, while one may suffer in his sense of security and in the enjoyment of the benefits of government, there is no damage, in contemplation of law, which would support a civil action; in legal phraseology, it is injuria sine damno.

In the case before us the first question to be settled in logical order is, do the facts set out in the complaint constitute a legal injury?

Under the common law, if a debtor had two cloaks one could be seized and sold for his debt without regard to his necessities, or the necessities of those dependent upon him for support. When this rigid and uncharitable rule began to give way to a nobler sentiment of benevolence, in the form of constitutional and statutory provisions designed to protect the debtor, and those relying upon him for maintenance from absolute want and destitution, it was regarded as an epoch in our jurisprudence, marking the entrance of humanity into a higher civilization, and now every nation on the globe which lays any claims to a respectable order of civilization has provisions more or less adequate for the relief of the debtor and his family. The right to a reasonable amount of property exempt from seizure or sale for the payment of debt is vouchsafed by the Constitution of this State, and the laws which have been enacted to secure this right to the debtor have been, and are, it may be said, to the credit of our institutions, especially favored in the administration of justice. They have been characterized by the courts as "humane," "beneficent," "benevolent" and "benign," and they have uniformly been interpreted with great liberality in favor of the debtor.

Section 703, R. S. 1881, provides that an amount of property, not exceeding in value six hundred dollars, shall be exempt from sale upon execution, or other final process, against a householder, upon a demand growing out of, or founded upon, contract. While the exemption provided in this section is absolute in terms, it is made by other provisions to depend upon the contingency that the debtor will claim the privilege, at the time and in the manner laid down, or he will be deemed to have waived it; and it is regarded as a personal right, to be asserted, rather than an absolute right created by force of the provisions of the statute.

The law presumes, however, that the debtor will avail himself of the privilege, in the absence of evidence of a contrary intention. State, ex rel., v. Harper, 120 Ind. 23, 22 N.E. 80.

Section 959 provides that the earnings of an employee of any person, or corporation, shall not be subject to garnishment for his debt so long as he shall remain in the service of such person, or corporation, not exceeding one month's wages. This provision seems to be absolute, and is not dependent upon any act of the debtor; yet, if earnings so made exempt should be attached in the courts in this State, and the beneficiary of the law should fail to assert his right to the exemption, it would amount to a waiver.

It is made a crime, punishable by fine, for any person to send, or cause to be sent, any claim against a citizen of this State into another State, or to assign or transfer such claim for the purpose of being collected in the courts of another State, with the purpose and intention of depriving such debtor citizen of his rights under the exemption laws of this State, where the parties and subject-matter are within the jurisdiction, and could be reached by the process of the courts in this State. Sections 2162 and 2163, R. S. 1881; State v. Dittmar, 120 Ind. 54, 22 N.E. 88.

In the case under consideration the complaint discloses facts, which, if true, would subject the appellee to a criminal liability under the provisions of section 2162, supra. And while it is true that statutes of that character are designed primarily to promote the public welfare, and infractions thereof should, ordinarily, be redressed by public prosecutions, yet the almost unbroken current of authority sanctions the right in an individual who has been specially damaged by an act which is in violation of a criminal statute, to maintain an action for his damages, notwithstanding the same act may subject the wrong-doer to a penalty in a public prosecution.

In every violation of the penal laws enacted for the protection of society, each member of the body politic suffers an injury, in theory at least, but such injuries as are common to all the citizens can not be made the basis of a private suit; but where one is injured above that inflicted upon him as a member of the commonwealth the rule is different. Powell v. Bunger, 91 Ind. 64.

Such special injury, however, must ordinarily arise from an invasion of some civil right existing independent of the criminal law or expressly conferred thereby.

Judge Cooley, in his work on Torts, p. 7, says: "When the act or neglect which constitutes a public wrong is specially and peculiarly injurious to an individual, and obstructs him in the enjoyment of some right which the law has undertaken to assure, the offender may be subject to a double liability; he may be punished by the State and he may also be compelled to remunerate the individual." See, same work, p. 102 (2d ed.); 1 Sutherland Dam., pp. 3 to 6.

It was held in Wilson v. Joseph, 107 Ind. 490, 8 N.E. 616, that where an act is made punishable by statute it is as effectually prohibited as if the act were legislated against in positive and direct prohibitive terms.

It was said by the court in New v. Walker, 108 Ind. 365, 9 N.E. 386: "It is an elementary rule that what the law prohibits, under a penalty, is illegal, and it can not, therefore, be the foundation of a right as between the immediate parties."

In the case before us the appellant was a resident householder of the State, and was entitled to the benefit of our laws exempting property from the payment of debt, under certain circumstances. By an unlawful act of the appellee, which was done with that end in view, the appellant's right to exemption was...

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