McMullen v. Shields

• Citation: 29 P.2d 652,96 Mont. 191
• Decision Date: 02 February 1934
• Docket Number: 7186.
• Parties: McMULLEN v. SHIELDS, Sheriff.
• Court: United States State Supreme Court of Montana

29 P.2d 652

96 Mont. 191

McMULLEN v. SHIELDS, Sheriff.

No. 7186.

Supreme Court of Montana

February 2, 1934

Rehearing Denied Feb. 15, 1934.

Appeal from District Court, Cascade County; W. H. Meigs, Judge.

Action by Emily E. McMullen against Ed Shields, as Sheriff of Cascade County. From a judgment for plaintiff, defendant appeals.

Affirmed.

Freeman Thelen & Freeman and Ernest Abel, all of Great Falls, for appellant.

West & Stromnes, of Great Falls, for respondent.

ANGSTMAN Justice.

This is an action in conversion. It was tried to the court without a jury on an agreed statement of facts, resulting in judgment for plaintiff in the sum of $150. Defendant appealed from the judgment.

The facts agreed upon were these: Plaintiff is a farmer in Cascade county and the head of a family, within the meaning of our exemption statute. The farm is operated exclusively by means of machinery that is power driven or propelled, and plaintiff does not have in the operation of the farm any horses, mules, or other beasts of burden. On December 21 1931, plaintiff was the owner, and entitled to the possession of, a model A Ford automobile of the value of $150. On that day defendant levied upon and seized the automobile by virtue of a writ of attachment. Defendant posted notice of the sale of the automobile for January 2, 1932. Prior to the sale plaintiff served upon defendant an affidavit claiming the automobile as exempt, but this was ignored by defendant, who proceeded to sell the automobile. At the time of the seizure by defendant, and for a long time prior thereto, the automobile was the only means of conveyance plaintiff had on the farm. It was used by her, and was the only means which she had to convey oil, groceries, and other farming supplies from the place of purchase to her farm, and the only means of conveyance she had to transport produce from the farm to the place of market. It was specifically agreed that, if the automobile was exempt under section 9428, Rev. Codes 1921, plaintiff was entitled to a judgment in the sum of $150. Hence the only question presented is whether, under the facts the property was exempt from execution under section 9428, supra.

So far as material, that section exempts to one situated as was plaintiff "farming utensils or implements of husbandry, not exceeding in value six hundred dollars; also, two oxen, or two horses or mules, and their harness, one cart or wagon, set of sleds, and food for such oxen, horses, cows, or mules for three months."

This statute, being one of exemption, should be liberally construed for the benefit of the exemption claimant. Lindley v. Davis, 7 Mont. 206, 14 P. 717; Mennell v. Wells, 51 Mont. 141, 149 P. 954; Swanz v. Clark, 71 Mont. 385, 229 P. 1108; Oregon Mortgage Co. v. Dunbar, 87 Mont. 603, 289 P. 559, 73 A. L. R. 113; De Fontenay v. Childs, 93 Mont. 480, 19 P.2d 650.

Keeping in mind this rule of construction, we proceed to a consideration of the question whether a Ford automobile which, under the facts here, has taken the place of what was formerly called a "wagon," is a "wagon or cart," within the meaning of section 9428.

Webster's Dictionary defines a "wagon" as "a kind of four wheel vehicle, especially one used for carrying freight or merchandise." In the case of Stichter v. Southwest National Bank (Tex. Civ. App.) 258 S.W. 223, 225, it was held that a Ford truck is a "farm wagon," within the meaning of an exemption statute. The court in that case, after holding that a Cadillac touring car was exempt as a carriage or buggy, said: "The use of the Ford truck on appellant's farm was of the same character and served the same purpose as the farm wagon named in the exemption statute. So far as we are informed, no higher court of this state has passed on this precise question. If the same reasoning is adopted by which an automobile touring car is permitted to take the place of the buggy or carriage in the exemption statute, we are impelled to the conclusion that the Ford truck in the instant case is included within the term 'wagon.' Its use is more necessary to the head of the family than is that of the pleasure vehicle, and the term 'wagon' is just as much a generic term as is 'carriage' or 'buggy.' In making the exemption, the Legislature had in mind the use or purpose to which the vehicle was put rather than the specific character of the vehicle named. Webster's Dictionary defines the word 'wagon' to mean, 'a kind of four wheel vehicle, especially one used for carrying freight or merchandise.' The Legislature believed that a vehicle used for carrying commodities was necessary for the use of the head of a family and so designated the wagon as exempt for that purpose, because it was the vehicle then in use for such purpose. Our Supreme Court has held, in recognition of this purpose, that a dray is included in this section of the exemption statute. Cone v. Lewis [64 Tex. 331, 53 Am. Rep. 767], supra. So far as the record in this case shows, this Ford truck was used for no other purpose than that consistent with the use of the farm wagon, and consistent with the evident purpose of the Legislature in the enactment of this statute. We therefore hold that an automobile truck of the kind and character this one is, and put to the use that is made of this truck, is included in the exemption statute."

In People v. Corder, 82 Colo. 318, 259 P. 613, it was held that a complaint alleging that a five-passenger Buick touring car was a farm wagon, stated sufficient facts to constitute a cause of action, the court saying: "We agree with plaintiff in error that the word 'farm wagon' ought to be regarded as including a farm wagon moved by mechanical as well as by animal power." On appeal from the judgment after trial on the merits, it was held that the jury properly found for defendants, because the evidence did not show that the automobile was used as an ordinary farm wagon was used. People v. Corder, 91 Colo. 383, 15 P.2d 621.

In Malone v. Kennedy (Tex. Civ. App.) 272 S.W. 509, 510, the court held that a 3 1/2-ton truck was exempt as a wagon, saying: "The rule is well established that exemption statutes shall be liberally construed so as to effectuate the policy and purposes of such legislation. The laws of this state exempt to the head of each family, among other things, one wagon and one carriage or buggy. Article 3785, Vernon's Sayles' Civil Statutes. In construing this law, it has been held that within the meaning and intent of the law, an automobile was a carriage. Parker v. Sweet, 60 Tex.Civ.App. 10, 127 S.W. 881; Peevehouse v. Smith (Tex. Civ. App.) 152 S.W. 1196. The carriage or buggy and the wagon were then the common vehicles in use and each were exempted to a family. The Legislature believed that a vehicle used for hauling freight and heavy commodities was necessary for the head of the family, and designated the wagon as exempt because it was the vehicle then in use for that purpose. The use of a truck is of the same character and serves the same purpose as a wagon. In making the exemption, the Legislature had in mind the use or purpose to which the vehicle was put, rather than the specific character of the vehicle named in the act."

Under statutes passed before the automobile came into existence, an automobile has generally been held to be a "vehicle or a carriage," when the latter only were named in the exemption statutes. Huddy on Automobiles (8th Ed.) §§ 8 and 9; First National Bank of Mason City v. Larson, 213 Iowa, 468, 239 N.W. 134; Lames v. Armstrong, 162 Iowa, 327, 144 N.W. 1, 49 L. R. A. (N. S.) 691, Ann. Cas. 1916B, 511; Farmers' Elevator & Livestock Co. v. Satre, 196 Iowa, 1076, 195 N.W. 1011; Shepard v. Findley, 204 Iowa, 107, 214 N.W. 676; Patten v. Sturgeon, 214 F. 65, 130 C. C. A. 505; Laning v. Langford Inv. Co. (Tex. Civ. App.) 36 S.W.2d 1079; Spangler v. Corless, 61 Utah, 88, 211 P. 692, 28 A. L. R. 72; Parker v. Sweet, 60 Tex.Civ.App. 10, 127 S.W. 881.

It has been held that a statute regulating persons traveling with a team includes those traveling by automobile. American Mutual Liability Ins. Co. v. Witham, 124 Me. 240, 127 A. 719.

The cases on the subject are not uniform. There are cases holding that an automobile is not a wagon. Prater v. Riechman, 135 Tenn. 485, 187 S.W. 305; Whitney v. Welnitz, 153 Minn. 162, 190 N.W. 57, 28 A. L. R. 68.

The Legislature was not so much concerned with the name of the thing exempted as it was with the use to which it was put. It is clear from the statute that the Legislature intended to provide for the farmer an exemption of the thing used as a means of conveyance. The suggestion that the Legislature has not seen fit to amend section 9428 so as to specifically name the automobile as one of the exempted articles is not of controlling importance. It is only in recent years that the automobile has been extensively used to take the place of the farm wagon. The statute required no amendment in order to exempt the automobile, which in its use has supplanted what was formerly called the wagon.

Where, as here, the automobile has taken the place of and serves the same purpose as the wagon, a liberal construction of the statute with the view of carrying out its object and purpose, impels us to the conclusion that the automobile in question is exempt as a wagon within the meaning of section 9428, supra, and that the trial judge properly so held.

The judgment is accordingly affirmed.

MATTHEWS and ANDERSON, JJ., concur.

CALLAWAY Chief Justice (dissenting).

Now that chapter 120, Laws 1933, is in force, this case can be of little consequence to any but the litigants; but it should be decided correctly.

The plaintiff is a married woman, operating a farm jointly with her husband. She owns the...