Rugg v. Tolman

• Decision Date: 15 June 1911
• Docket Number: 2196
• Citation: 117 P. 54,39 Utah 295
• Court: Utah Supreme Court
• Parties: RUGG v. TOLMAN

117 P. 54

39 Utah 295

RUGG v. TOLMAN

No. 2196

Supreme Court of Utah

June 15, 1911

APPEAL from District Court, Third District. Hon. M. L. Ritchie Judge.

Action by H. F. Rugg against D. H. Tolman, doing business as Union Credit & Investment Company.

Judgment for plaintiff. Defendant appeals.

MODIFIED AND AFFIRMED CONDITIONALLY.

W. R Hutchinson for appellant.

Daniel Harrington for respondent.

FRICK C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

This was an action to recover damages alleged to have been sustained by respondent on account of having been discharged by his employer by reason of the "willful, wrongful, and malicious" acts of appellant as hereinafter stated.

The material facts, taken from respondent's statement of the facts, most favorable to him, in substance, are: That on September 1, 1906, a man signing his name as H. F. Rugg, which is the name, including the initials, of respondent, obtained a loan of $ 19.80 from appellant, who, it seems, was engaged in the business of lending money to persons employed for wages or on salaries; that said loan was to be repaid in installments, and to secure its repayment the man signing as aforesaid assigned to appellant his wages earned or to be earned within a specified time from the Rio Grande Western Railway Company in whose employ he said he then was; that no special or particular description of the man obtaining the loan was made or kept in the office of appellant at the time the loan was made; that the person obtaining said loan, within a short time thereafter, paid two installments thereon of $ 6.60 each, amounting to $ 13.20, leaving a balance due; that on November 10, 1906, the person who borrowed the money, under the name of H. F. Rugg, wrote appellant a letter directed to Salt Lake City, dated at Sacramento, Cal., in which he informed appellant that, "owing to my absence from the city, it will be about the 15th of the month before the payment due on my loan will reach your office, as I will have to send it from here after I get my money from Salt Lake City;" that appellant received no remittance from the writer of said letter as indicated therein, nor did he make any further payments on said loan; that in October, 1907, said loan not having been paid, and being long past due, the respondent received notice to appear at the office of appellant and pay the balance due thereon; that respondent, with his brother, called at appellant's office, and, when shown the papers and signature of H. F. Rugg, the person who borrowed the money, he informed the young woman in charge of the office that the signature to the papers evidencing said loan and assignment of wages was not his, and that he had not borrowed any money from appellant, and hence did not owe him anything, and to convince the young lady in charge that the signature on the papers was not his he wrote his name on a paper, as requested by her, and left the paper with her; that matters remained in this condition for six or eight months thereafter, when respondent was again notified to call at appellant's office at Salt Lake City, and this time his father went with him, and he again informed the young woman then in charge that the signature to the papers was not his, and at her request he again wrote his name on a paper, which he left with her; that nothing further was done in the matter until the 9th day of June, 1909, when, without further notice to respondent, the employees of appellant filed with the railway company aforesaid the assignment to appellant of what was assumed to be respondent's wages and demanded the wages due to respondent for the current month; that on the 10th day of June, 1909, the same being the regular pay day of said railway company, the respondent, with other employees, called for his pay check at the pay car of the railway company, and the paymaster of said company then informed respondent, in presence of a large number ("eight or ten") of his coemployees that "Tolman (the appellant) had his check, and that he should keep away from these people;" that respondent immediately went to appellant's office again and informed the young lady in charge of the office what had happened, and he again insisted that he owed appellant nothing, and that his check was wrongfully withheld from him.

It also appears from the record that at this time respondent apparently succeeded in convincing the young woman who was in the office at that time that the signature to the papers evidencing the loan and assigning the wages was not his, and that he did not owe the debt. The young woman thereupon, within an hour after respondent had called at the office as aforesaid, delivered to his attorney a release of the check, and respondent at once went to the paymaster and obtained his check and went back to work for the railway company. In two days thereafter, however, the caller of the railway company informed respondent that he was suspended from or was out of service for the reason that his wages had been garnisheed or held up as aforesaid. Respondent contends that his services were dispensed with under the rules of the company, because the appellant, after giving respondent the release, did not immediately notify the proper department of the railway company of such release; that respondent did not do this because it was not his duty to do it, and that he had done all that he was required to do in the matter; that in view that appellant did not notify the proper officers of said department they assumed that respondent had not obtained a release of his check, and hence suspended him from his employment. Respondent was out of employment for a period of twenty-one days. While employed his wages were $ 2.60 per day, and his actual damages which were caused by appellant's acts as aforesaid amounted to $ 54.60. It was also made to appear that when the loan was made and during the time herein mentioned he was in the employ of the Rio Grande Western Railway Company as fireman. Respondent, however, also alleged that by reason of the acts and conduct of appellant's employees and the statement made by the paymaster of the railway company that respondent's check had been held up by appellant he was "personally humiliated and injured in the estimation of his fellow workmen, and the same caused him great distress. . . to his injury in the sum of $ 1000." No evidence was adduced, however, in support of the claim for consequential damages, except the facts above set forth and respondent's statement, on direct examination, that he was "greatly humiliated" by the statement made by the pay master in presence of respondent's co-employees that his check had been held up by appellant. On cross-examination, however, he admitted that his mental equilibrium had never been disturbed; that he had lost no sleep over the matter; and that both his mental and physical condition had always remained normal.

There is considerable evidence on the part of appellant, some of which is in direct conflict with the statements and other evidence of respondent. We, however, deem it unnecessary to refer to such evidence, except to say that it is practically undisputed that appellant had a bona fide claim against some man who signed his name as H. F. Rugg, the name of respondent; that such signature was conceded by both parties to be a forgery; that appellant himself lived in New York City, and that his entire business in Salt Lake City was conducted by female employees; that different young women were in charge of the office at the several times when respondent called, as hereinbefore stated, by reason of the fact that the young women employees would be changed from time to time. There is no evidence whatever that appellant had any personal knowledge of the facts and circumstances, or that any one of the young women with whom respondent had dealings in the office knew him personally or had any knowledge with respect to the loan other than what appeared from the papers evidencing the same and from the record kept in the office, which was very meager, giving a mere outline of the facts that the loan had been made to a person by the name of H. F. Rugg, when it was made, the amount thereof, and the amount of the payments and the dates when made. There was also a brief entry to the effect that H. F. Rugg, presumably the respondent, "says he isn't our man. That his stepbrother forged his name;" and some entries, dated August 6, 1906, showing that the employees of appellant had, prior to that date, obtained some information from a few business men of Salt Lake City concerning the standing of a young man by the name of H. F. Rugg.

The jury found for the respondent and allowed him as damages the sum of $ 854.60. From this verdict it is apparent that in addition to the actual damages claimed by respondent, all of which the jury allowed as claimed, the jury also awarded him, either as consequential or exemplary damages, or both, the sum of $ 800. The appeal is from the judgment entered on the verdict.

The principal errors assigned relate to the giving of certain instructions, and that there is no evidence in support of the verdict and judgment in excess of the actual damages sustained by respondent. The latter assignment presents the real question in the case, since the objection to the instructions relates to the same question, presenting it in another form merely. The court charged the jury that if they allowed exemplary damages they should separately state in their verdict the amount they allowed as actual and what amount, if any, they allowed as exemplary damages. As we have pointed out, the jury simply found for respondent and assessed his damages at the sum of $ 854.60, when the proof showed only $ 54.60 as actual damages....