Klie v. Wellman
| Decision Date | 06 April 1915 |
| Parties | OTTO KLIE, Respondent, v. WILLIAM E. WELLMAN et al., Defendants; STARK DISTILLERY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
Judgment affirmed.
D. J O'Keefe for appellant.
(1) Under the facts stated in the petition plaintiff is not entitled to maintain this action: (a) Money alleged to have been paid to officer by plaintiff was with the knowledge at the time of payment that it was to be applied by the officer in payment of debt due from another. 10 Am. & Eng. Ency. of Law, p. 344; Claflin v. McDonough, 33 Mo. 412; Brewing Co. v. St. Louis, 187 Mo. 367; 22 Am. & Eng Ency. of Law, p. 616. (b) Plaintiff has pursued the wrong remedy as secs. 2317, 2345 and 4551, R. S. 1909, provide the remedies which should have been employed to procure the release of his alleged property from the levy and seizure by the officer under the writ of attachment or proper satisfaction upon the bond or he might have maintained an action in replevin, and having neglected and refused to pursue any of these appropriate remedies, is estopped from prosecuting this action. State ex rel. O'Bryan v. Koontz, 83 Mo. 323; State to use Armstrong v. Langdon, 57 Mo. 353; McElfatrick v. Macauly, 15 Mo.App. 102; Smith ex rel. v. Rogers, 99 Mo.App. 252. (2) Under the evidence in this case the alleged sale of property in question from the former owner to the plaintiff in this case was fraudulent and void as against defendant Stark Distillery Company, a creditor of the former owner, and the court erred in its failure to so instruct the jury as requested by defendants. Sec. 2887, R. S. 1909; Bump on Fraudulent Conveyances (4 Ed.), secs. 121, 122, 123, 125, 127 and 128; Claflin v. Rosenberg, 142 Mo. 439; Wright v. McCormack, 67 Mo. 426; Rivercomb to use v. Duker, 74 Mo.App. 570; Bishop v. O'Connell, 56 Mo. 158; Kohn v. Troll, 72 Mo.App. 321; State ex rel. v. Gortz, 131 Mo. 675; Collins v. Wilhoit, 108 Mo. 451; Bowles Live Stock Commission Co. v. Hunter, 91 Mo.App. 418; 97 American Decisions, 336; State ex rel. v. Durant, 53 Mo.App. 493; Williams v. Youtsey, 151 Mo.App. 69. (3) Instructions for plaintiff are all clearly erroneous especially instructions designated as plaintiff's instructions numbers 3 and 4. (4) Instruction number 6, asked by defendant and refused by the court should have been given. Burgert v. Borchert et al., 59 Mo. 87. (5) There was no evidence in the case upon which the jury could base a verdict for punitive damages. Bump on Fraudulent Conveyances (4 Ed.), sec. 125. (6) The verdict of the jury clearly shows that it was the result of bias, prejudice and passion.
John T. Fitzsimmons for respondent.
(1) Respondent adopted the proper remedy. It is an action in tort for the wrong. All statutes providing for third party claims, indemnifying bonds, and interpleas, referred to by appellant in the second subdivision of his first point, give remedies which are merely permissive and optional with the party wronged and are not exclusive remedies. And respondent properly joined Stark Distillery Company as a defendant with Constable Wellman in the same action. Fry v. Estes, 52 Mo.App. 1; State to use v. Thomas, 19 Mo. 613; Walser v. Thies, 56 Mo. 89; Dowell v. Taylor, 2 Mo.App. 328; Kreher v. Mason, 25 Mo.App. 291; Vaughn v. Fisher, 32 Mo.App. 29; Frank v. Curtis, 58 Mo.App. 349; Kelly v. Swift, 127 Mass. 187; Grant v. Reinhart, 33 Mo.App. 74; Alexander v. Harrison, 38 Mo. 258; State to use of Gates v. Fitzpatrick, 64 Mo. 185. (2) Appellant in the presentation of his case in the trial court and upon appeal proceeds upon the theory that it is a conceded or demonstrated fact that the goods levied upon were the goods which Klie obtained from Risz when Klie bought the saloon for eighty-five dollars. But respondent Klie did not, in his pleading or proof, base his claim of possession and ownership of the attached goods upon his purchase from Risz. Respondent's uncontroverted proof was he obtained little or nothing from Risz and that at the time of levy, respondent had in the saloon premises a large stock purchased in the open market, and not acquired from Risz. Therefore, all of appellant's defenses founded on the principle of a void or fraudulent sale from Risz to Klie fail. Even the Bulk Sales Law which was enacted since December 23, 1911, would not apply as to the goods purchased by Klie in the open market if that law were then in force. Nor do the general statutes relating to fraudulent sales give aid to the appellant's cause. Joplin Supply Co. v. Smith, 182 Mo.App. 212 ( the Bulk Sales Law); "Bulk Sales Law," Laws of 1913, page 163; Sec. 2294, R. S. 1909, stating grounds of attachment; Sec. 2344, R. S. 1909, giving attaching creditor right of action to set aside fraudulent conveyance; Sec. 2887, providing that sales of goods shall be fraudulent and void as against creditors of vendor unless possession follows sale. (3) Even on appellant's theory that the goods levied on were the goods acquired by Klie from Risz, and leaving out of consideration respondent's proof that the goods levied upon were goods purchased by him in the open market, the question of Klie's title and possession as against Risz's creditor, Stark Distillery Company, was rightfully, properly and fairly submitted to the jury. Scovill v. Glasner, 79 Mo. 449, 456; Edwards v. Schreiber, 168 Mo.App. 197; Kahmke v. Weber, 187 Mo.App. 698; State ex rel. v. Fitzpatrick, 64 Mo. 189; Claflin v. Rosenberg, Simon Strauss, Interpleader, 42 Mo. 439 (); Wright v. McCormick, 67 Mo. 426; Bishop v. O'Connell, 56 Mo. 158; Rivercomb, Constable, to use of Swift v. Buker, 74 Mo.App. 570; Kohn v. Troll, 72 Mo.App. 321; State ex rel. Baumunk v. Goetz, 131 Mo. 675; Live Stock Commission Co. v. Hunter, 91 Mo.App. 418. (4) The circumstances under which respondent paid to Constable Wellman the debt due from Risz to appellant, Stark Distillery Company, constituted the most extreme form of duress known to the law, namely, "a payment made to emancipate the property from an actual or existing duress imposed upon it by the party to whom the money is paid, or to prevent a seizure by a party armed with apparent authority to seize the property." Even this old rule to which respondent's case conforms in pleading and proof has been greatly relaxed. Claflin v. McDonough, 33 Mo. 412; American Brewing Co. v. City of St. Louis, 187 Mo. 367, 376, 377; Frank v. Curtis, 58 Mo.App. 349. (5) Respondent's instructions exactly state the law applicable to the case made at the trial. If there be any error in any of them it is to be found in respondent's instruction 3, but whatever error may appear in that instruction does not avail appellant, because (a) that instruction related alone to defendant Wellman who obtained a verdict in the trial court, and (b) that instruction was properly cured and supplemented by respondent's instructions 1 and 2. Fry v. Estes, 52 Mo.App. 1; State to use v. Thomas, 19 Mo. 613; Kreher v. Mason, 25 Mo.App. 291; Frank v. Curtis, 58 Mo.App. 349; Kelly v. Swift, 127 Mass. 187; Grant v. Reinhart, 32 Mo.App. 74; Alexander v. Harrison, 38 Mo. 258; State to use of Gates v. Fitzpatrick, 69 Mo. 185. (6) The instruction given by the court, of its motion, and being a modified form of instruction asked by plaintiff, was a correct statement of the law applicable to the case as made. Besides appellant did not, in his motion for a new trial, direct the court's attention to any purported error in this instruction. (7) The question of punitive damages was properly submitted to the jury and the verdict allowing punitive damages should stand. Cooper v. Scyoc, 104 Mo.App. 414; Walser v. Thies, 56 Mo. 89; Fry v. Estes, 52 Mo.App. 1; State to use of McClenden v. Jungling, 116 Mo. 162.
This is an action against a constable, defendant Wellman, and his codefendant, Stark Distillery Company, a corporation, at whose instance the constable acted, to recover damages, compensatory and punitive, for an alleged wrongful levy upon plaintiff's property. There was a judgment against defendant Stark Distillery Company alone, for $ 40.60 actual and $ 100 punitive damages, and the case is here upon its appeal.
On December 16, 1911, one Risz, who owned and operated a saloon in the city of St. Louis, and who was indebted to defendant Stark Distillery Company, sold the saloon to plaintiff for $ 85 in cash, and plaintiff at once entered into possession thereof. Plaintiff testified that, at the time of the sale, there was no stock of goods on hand in the saloon, except some liquor less than a gallon in amount; that, aside from this, the property acquired consisted of certain saloon fixtures, glassware, etc.; and that during the following week plaintiff purchased from perhaps a dozen different dealers a stock of liquors and cigars, costing in all about $ 500.
One week after the purchase of the saloon by plaintiff, to-wit December 23, 1911, two of constable Wellman's deputies, accompanied by an attorney representing appellant corporation, came to the saloon for the purpose of levying upon the contents thereof, under a writ issued in an attachment proceeding in which this appellant was plaintiff and Risz defendant. Plaintiff was in charge of the place at the time. There is some conflict in the testimony as to just what took place between these parties and plaintiff when the former entered the saloon. However, there is little, if any, dispute as to the fact that when plaintiff learned that the deputy constables were there to levy upon the property to satisfy a debt of Risz to appellant, he informed...
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