Stalker v. Drake

• Decision Date: 06 December 1913
• Docket Number: 18,492
• Parties: JOSEPH B. STALKER, Appellee, v. D. D. DRAKE, Appellant
• Court: Kansas Supreme Court

136 P. 912

91 Kan. 142

JOSEPH B. STALKER, Appellee, v. D. D. DRAKE, Appellant

No. 18,492

Supreme Court of Kansas

December 6, 1913

Decided July, 1913

Appeal from Wyandotte court of common pleas; HUGH J. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTION--Petition for Willful and Malicious Oppression--Not for a Conspiracy. The petition herein interpreted and held to state a cause of action for willful and malicious oppression by the defendant, acting through his agents, in seeking to enforce usurious and unlawful claims against plaintiff, and should not be regarded as one asserting a liability on the ground of the conspiracy of the defendant with his agents as tort-feasors and coconspirators.

2. Same. Where a party makes an unlawful demand against another and maliciously and oppressively uses the machinery of the courts and the process of the law as well as other measures in an endeavor to enforce the payment of such demand the injured party is entitled to recover the loss and damage resulting from such wrongdoing.

3. EXEMPLARY DAMAGES -- For What Purpose Allowed. Exemplary damages are not allowable because of any special merit in plaintiff's case, but are imposed by way of punishing the defendant for an invasion of the plaintiff's rights in cases characterized by malice, fraud or a willful and wanton disregard of the rights of others, and it is held that the elements justifying the allowance of such damages are present in this case.

Edwin S. McAnany, Maurice L. Alden, Nathan Cree, all of Kansas City, and R. J. Ingraham, of Kansas City, Mo., for the appellant.

L. W Keplinger, of Kansas City, T. J. Madden, and E. A. Scholer, both of Kansas City, Mo., for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by Joseph B. Stalker against D. D. Drake to recover damages for alleged willful, wanton and malicious oppression. The record discloses that the appellant was a money lender and had a chain of offices over the country with headquarters at Kansas City, the Kansas City office being managed by an agent named Van Zandt. Drake's residence appears to have been at Delaware Water Gap, Pa. The appellee was a railway employee, and had been employed by a number of railway companies in various capacities, as freight brakeman conductor, switchman and yardmaster. In May, 1903, while employed by the St. Louis & San Francisco Railroad Company as conductor the appellee applied to the office of Drake, managed by Van Zandt, for a loan of $ 25. He signed two papers without reading either of them. One was a note and the other an assignment of his wages. The loan was to run for a period of one month and Stalker was to pay $ 2.50 for the use of the money. He renewed the note the following month on the payment of an additional $ 2.50. He endeavored to again renew it in July, a day or two after it became due, and was informed that the matter had been placed in the hands of an attorney and that it would cost him $ 10 more to straighten the matter out. Under protest this amount was added to the amount of the note and another $ 2.50 paid by Stalker as interest. In September, when the loan again became due, Stalker had not received his pay check, and upon inquiry was told that an extension of a few days would be given and when the pay check was received he was then informed that another $ 10 from him would be necessary to get the matter out of the hands of another attorney with whom the note had been placed, and after considerable controversy he signed a note for $ 45, paid $ 3.50 as interest, and agreed to pay $ 4.50 for the next month. In October, on account of the derailment of a train, Stalker was a few days late in tendering payment of the interest, and he was then informed that the claim was in the hands of an attorney and that suit had been brought upon it, but Van Zandt would not give him the name of the attorney or of the court. They insisted on adding $ 10 for attorneys' fees and $ 5 for court costs and the note was thereby increased to $ 60. He continued to pay $ 6 a month on this amount until February, 1905. In the meantime he had borrowed $ 30 additional and this amount was repaid at the end of the month, including interest thereon at ten per cent per month. In February, 1905, Van Zandt notified Stalker that the account would have to be finally settled the following month. Stalker not being able to pay the claim and thus protect his railroad record resigned his position with the railroad company. Later, and about May or June, 1905, he secured employment from the Chicago & Alton Railroad Company as night yardmaster. The controversy with Van Zandt as to the payment of the loan still proceeded, and being pressed for payment of all that was claimed Stalker filed a voluntary petition in bankruptcy, which resulted in a discharge, and in the proceeding the debt to Drake was scheduled at $ 66. In February, 1906, one of the blank assignments which Stalker had signed when the loans were renewed was filled out by Van Zandt and filed with the Chicago & Alton Railroad Company at Chicago, and thereafter the payment of Stalker's wages was withheld. A suit was begun there by Drake to recover on his claim, which had suddenly grown to $ 140, and Stalker, to protect his interests, made several trips to Chicago, and finally a nonsuit was taken. This, however, did not operate to release Stalker's wages because of the assignment which had been filed. He was reduced from the position of yardmaster to that of foreman and from that of foreman to helper, and in November, 1909, he felt compelled to resign his position. Stalker, at that time, had received the original loan of $ 25 and $ 30 at another time and had already paid Drake $ 145.50, but only $ 30 of the amount paid had been credited on the principal indebtedness, and Stalker had therefore paid $ 115.50 for the use of $ 25 from May, 1903, to February, 1905. On September 6, 1906, Drake brought a second action in Chicago and this time he asked judgment for $200 on what had been a $ 25 loan. Several continuances were had at the instance of Drake which necessitated several trips to Chicago by Stalker. A trial was finally had and a judgment in favor of Stalker was rendered. No appeal was taken from this judgment by Drake, and although judgment had been rendered against him for the costs of the depositions taken by Stalker, a demand for the payment of this amount was refused. Another of the blank assignments that had been given before the judgment against Drake was rendered was filled out and filed with the railroad company in Chicago. On its face it purported to have been given after the judgment and constituted a new claim against Stalker's wages. Stalker then brought this action, in which Drake and Van Zandt were both named as defendants, but Van Zandt died and an amended petition was filed against Drake alone in which these and other facts were stated at length. It is alleged that the illegal and oppressive measures were used by Drake in and...