Pellish Bros. v. Cooper

• Decision Date: 11 December 1934
• Docket Number: 1884
• Parties: PELLISH BROS. v. COOPER
• Court: Wyoming Supreme Court

38 P.2d 607

47 Wyo. 480

PELLISH BROS. v. COOPER

No. 1884

Supreme Court of Wyoming

December 11, 1934

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Suit by Pellish Brothers against James G. Cooper, wherein plaintiff filed an attachment. From a judgment that the automobile attached was exempt from seizure, plaintiff appeals.

Affirmed.

For the appellant, the cause was submitted on the brief of W. E Tipton, of Laramie.

Appellant attached an automobile belonging to defendant which was released on the ground that it was exempt as an implement necessary for carrying on defendant's occupation. Under a similar statute, the Kansas courts sustain defendant's contention. Dowd v. Heuson, 252 P. 260. The Ohio courts hold to the contrary. Gordon v. Brewer (Ohio) 166 N.E. 915, also South Carolina. Eastern Mfg. Co. v. Thomas, (S. C.) 64 S.E. 401. The same holding was made in McLeon v. Garvin, 1 Com. L. R 216, (Sask.) Gann v. McGee, (Ga.) 90 S.E. 976. A Ford car was held not to be exempt under the Oklahoma statute. In Bank v. Pulliam, 239 P. 595; Prater v. Riechman, (Tenn.) 187 S.W. 305, it was held that an automobile was not intended to be protected by the exemption statute of that state. Section 89-2992 should be considered in connection with our exemption statute, which was passed prior to the advent of the automobile.

The cause was submitted for the respondent upon the brief of S. G. Parker, of Laramie.

Section 89-2992 exempts a specified class of property used in carrying on the owner's trade or business, not exceeding the value of $ 300.00. The cases cited by appellant are not convincing for the reason that they leave the question as to when an automobile is to be regarded as an implement of trade very much in a state of uncertainty, and counsel admits that some of the cases cited by him are not in point at all. The contention that the exemption statute having been passed prior to the advent of the automobile, was not intended to include motor vehicles, is without merit. The same argument might be applied to typewriters and steel filing cases or other modern appliances which were not in existence in 1886. The cases on tools as implements under exemption statutes are fully discussed in 28 A. L. R. 74 and in 52 A. L. R. 823. In this latter annotation there is a rather extensive analysis of the Dowd-Heuson case from Kansas, where plaintiff owned and used an automobile valued at $ 150.00 in carrying on his work and it was accordingly held to be exempt. Other cases following the same reasoning are Bank v. Venard, 197 P. 877; Federal Agency Company v. Baker, (Kans.) 252 P. 262; Chamber of Commerce v. Gallagher, (Kans.) 254 P. 345. An earlier Kansas case, Wickham v. Bank, 149 P. 433, held that an automobile was exempt where used in carrying on defendant's business. See also Church v. Bank, (Mich.) 238 N.W. 192. The reasoning of the trial court in exempting the automobile in the present case is sound and the judgment should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

In this case the plaintiff, appellant here, attached a Dodge sedan in a suit brought by him in justice court against James G. Cooper, defendant, respondent here. The latter filed an affidavit claiming that the automobile was exempt, by reason of the fact that its value was less than $ 300.00, and because it was used and was necessary to be used by him in his business as a taxi driver. The claim of exemption was denied in justice court, but on appeal the district court held that the automobile was exempt from seizure. From this judgment the plaintiff has appealed.

The evidence is not in the record, and we must, accordingly, assume that the facts requisite for a claim of exemption were duly established. And the only question before us is as to whether or not an automobile can under any state of facts be held to be exempt under section 89-2992, Rev. St. Wyo. 1931, which, in part, reads as follows:

"The tools, team and implements, or stock in trade of * * * any person, used and kept for the purpose of carrying on his trade or business, not exceeding in value three hundred dollars * * * shall be exempt from levy or sale upon execution, writ of attachment or any process out of any court in this state."

The statute was originally enacted in 1886. Sess. L. 1886, C. 60, Sec. 442. At that time the automobile was unknown, and it is argued by the appellant that in view of the fact that it was not, and could not have been, in contemplation of the legislature, the statute cannot be extended so as to embrace it within its terms. The case of Prater v. Riechman, 135 Tenn. 485, 187 S.W. 305, lends some, but not a great deal, of support to this contention. We have never decided the point. One similar to it arose under a constitutional provision considered in the case of Chicago & N.W. Ry. Co. v. Hall, 46 Wyo. 380, 26 P.2d 1071. Tie plants were not in existence at the time of the adoption of the constitution, and it was contended that they could not, accordingly, be considered as embraced within the terms of Section 10, Article 15, of the Constitution. We said on that point:

"We might say in that connection, before proceeding farther, that it is apparently argued by counsel for the defendant that tie-preserving plants were not in use in 1889; that they were not in the contemplation of the framers of the Constitution or of the people; and that they cannot, accordingly, be considered as embraced in, or contemplated by, the section of the Constitution now under consideration. This contention, we think, is too broad. The section is a part of our organic law. The Constitution is, in a sense, a living thing, designed to meet the needs of progressive society, amid all the detail changes to which such society is subject. State v. Keating, 53 Mont. 371, 163 P. 1156; Henshaw v. Foster, 26 Mass. 312, 9 Pick. 312. Hence, though tie-preserving plants were not in existence at the time of the adoption of the Constitution, still, if it can be said that the language used in the section under consideration, naturally construed, may fairly be said to embrace them, we would not be justified in excluding them therefrom merely for the reason that they were not in existence at the time of the adoption of the Constitution. 12 C. J. 703, 704."

It may be that the rule should not be as broad in the case of a statute. But it is well settled that things not existing at the time of the enactment of a law may be held to be within its terms in cases in which it deals with a genus of things. 59 C. J. 973-975; 25 R. C. L. 778; McCleary v. Babcock, 169 Ind. 228, 82 N.E. 453; Hurley v. Inhabitants, 105 Me. 301. 74 A. 734; Hanna's Election Contest, 5 Pa. D. & C. 139. The rule is well stated in 25 R. C. L. 778, as follows:

"A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but so long as it is expressed in general language the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy. Hence statutes framed in general terms apply to new cases that arise, and to new subjects that are created, from time to time, and which come within their general scope and policy. It is a rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects and business within their general purview and scope coming into existence subsequent to their passage. Thus, an automobile may come within the provisions of an act relating to vehicles generally, although the statute was passed before the invention of automobiles"; etc.

The only question, accordingly, before us is as to whether or not the terms of the statute above quoted can be said to fairly embrace an automobile. And in this connection it should be borne in mind that exemption statutes are construed liberally so as to effect their beneficent purposes. 25 C. J. 10. Counsel for appellant cite a number of cases which are believed to support his contention. Most, if not all of them, may be distinguished from the case at bar by reason of different statutory provisions. In First State Bank of Perkins v. Pulliam, 112 Okla. 22, 239 P. 595, it appears that the statutes of that state specifically provide that automobiles and other motor vehicles shall not be exempt from attachment or execution, and the case is, accordingly, not in point. In Eastern Manufacturing Company v. Thomas, 82 S.C. 509, 64 S.E. 401, the court apparently held that an automobile was not exempt for the reason that the claimant for exemption was not the head of a family. That point is not, however, quite clear. The case was decided in 1909, at a time when automobiles were still comparatively scarce, and even if the court meant to...