State to Use of McClenden v. Jungling
| Decision Date | 22 May 1893 |
| Citation | 22 S.W. 688,116 Mo. 162 |
| Parties | State to use of McClenden, Appellant, v. Jungling, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
Christian & Wind for appellants.
(1) The court erred in excluding testimony tending to show the motive which actuated Jungling in his proceedings conceded to be unlawful. (2) The court erred in instructing the jury not to assess plaintiff's damages at more than one dollar, for defendant's trespass upon his wearing apparel and bedding. (3) First. The unlawful acts of defendant were committed wilfully and wantonly, and plaintiff was entitled to an instruction defining malice and permitting the jury to return a verdict of exemplary damages. It was therefore error in the court refusing instructions of that character asked by plaintiff and giving instructions to return a verdict for actual value of property taken. Goetz v. Ambs, 22 Mo. 170; Franz v. Hildebrandt, 45 Mo. 123; Perkins v. Railroad, 55 Mo. 213; Mills v Noyes, 12 Pick. 324. Second. The levy made upon property known to be exempt is of itself evidence of malice and entitled plaintiff to exemplary damages. Lynd v Picket, 7 Minn. 184; S. C. 82 Am. Dec. 79. Third. And the taking of a bond to protect him is evidence of malice and entitles plaintiff to exemplary damages. Carroll v. Green, 7 Mo.App. 596.
Huff & Hereford for respondents.
(1) Exemplary damages can be given only in case of aggravated trespass committed in a wanton and malicious manner. 2 Sedgwick on Damages [8 Ed.], sec. 564; Welch v. Stewart, 31 Mo.App. 380; Perkins v. Railroad, 55 Mo. 213; Trauermann v. Lippincott, 39 Mo.App. 487. (2) The evidence in this case shows only a simple trespass, and such conduct under the rule in Missouri did not entitle plaintiff to more than actual damages. The damage done to plaintiff in levying on household goods was nominal. Goetz v. Ambs, 22 Mo. 170; Freidenheit v. Edmunson, 36 Mo. 231; McKeon v. Railroad, 42 Mo. 79; Franz v. Hildebrand, 45 Mo. 121; Buckley v. Knapp, 48 Mo. 162; Edelman v. Transfer Company, 3 Mo.App. 507; Trauermann v. Lippincott, 39 Mo.App. 487. (3) The action of the constable in refusing to give up the horse was not only justifiable, but it was his duty to so refuse. Moltrie v. Elrod, 23 Ga. 393.
The defendant Jungling was a duly appointed constable in the city of St. Louis, and this is a suit against him and the sureties on his official bond for an alleged wrongful and malicious trespass in appraising, levying upon and selling property exempt from sale under execution.
The record discloses the following facts: Jungling as constable held an execution against the plaintiff in this suit for the sum of $ 70.00 and costs. He went to the plaintiff's house and there levied upon a stallion. He took the horse to a livery stable and directed the proprietor to place the horse where he could not be found, and the horse was placed on the third story in a box stall. The plaintiff, through his attorneys, notified the constable in writing to return the horse, calling the attention of the constable to the sections of the statute relating to exemption of property from attachment and sale on execution. On the next day the constable and the plaintiff, pursuant to agreement, met at the office of the attorneys representing the execution creditor. The plaintiff says he then told these attorneys that the horse was exempt, that they said they did not want him to waive his exemption, but they intended to sell the horse if they had to give a $ 400,000 bond. There had been some previous litigation between the attorneys and the plaintiff, resulting in an unfriendly feeling between them. On the same day, which was the day after the plaintiff had demanded a return of the horse because exempt, the constable called in three appraisers, and with them went through the plaintiff's house and appraised all of his household effects. They also appraised some other property found in and about the barn. They then went to the livery stable and appraised the horse. The plaintiff says the constable did not inform him of his exemption rights at the time of taking the horse. He admits that the constable told him on the next day that he was entitled to $ 300 in exemption, but the constable wanted him to take that amount out of the appraised property at the house, saying he could not have the horse. At the completion of the appraisement, the constable placed a watchman at the house and barn, and there is some evidence to the effect that this watchman was drunk part of the time. He slept in the stable and did not go into the house, save on one occasion, and he was then invited in by the plaintiff's wife. At the expiration of about forty-eight hours the constable removed the watchman and some of the appraised property, namely, a sulky, one set of harness, a horse-blanket, a surcingle and bridle, appraised at $ 71.00. The constable did not, however, disturb or levy upon any of the household goods. They were all left in the house undisturbed as found when appraised. The constable then sold the articles so appraised at $ 71.00 and the horse which had been appraised at $ 450. One of the attorneys for the execution creditor purchased the horse at the sale for $ 210. After the sale the constable took the horse to the attorneys of the plaintiff in this suit and also the $ 210 and tendered to them the horse or money, but they declined to accept either.
Under the instructions given, the jury found for the plaintiff and assessed his damage at what is conceded to be the value of the property sold. The court also told the jury that the constable had no right to appraise or place a watchman in charge of the wearing apparel or clothing, but restricted the damages for such acts to the nominal sum of $ 1.
The principal complaint on the part of the plaintiff and appellant is that he should have been awarded exemplary damages, and that the court erred in refusing to instruct upon that subject. To entitle the plaintiff to recover punitive damages he must show that the act complained of was unlawful, and further that it was a wanton or malicious act. In other words he must show an unlawful act coupled with an intentional wrong. Goetz v. Ambs, 27 Mo. 28; Kennedy v. Railroad, 36 Mo. 365; Engle v. Jones, 51 Mo. 316; Perkins v. Railroad, 55 Mo. 201; Wills v. Noyes, 12 Pick. 324. It is therefore important to first inquire how far and to what extent the acts of the constable were in fact unlawful; for an action like this cannot be founded on a lawful act.
As the plaintiff was the head of a family, some of the articles which were appraised, namely, the wearing apparel and the beds and bedding, were exempt without regard to their value. (Revised Statutes, 1879 sec. 2343). An appraisement of such articles was therefore unnecessary. The law, however, only exempts "other household and kitchen furniture" to the extent of $ 150 in value, so that it was necessary and...
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