The State v. American Surety Company of New York, a Corp.
| Decision Date | 06 June 1922 |
| Citation | 242 S.W. 983,210 Mo.App. 203 |
| Parties | THE STATE OF MISSOURI, at the Relation and to the Use of W. A. LEACH, Doing Business Under the Firm Name and Style of LEACH LUMBER AND TIE COMPANY, Respondent, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Karl Kimmel, Judge.
REVERSED.
Judgment reversed.
Bryan Williams & Cave for appellant.
(1) The attachment bond sued on is a bond of indemnity given to the State of Missouri to secure to the persons described in the bond the payment of such actual and legal damages, if any, as shall have been directly or proximately caused them by any process in the attachment proceedings. R. S. of Mo. 1919 sec. 1735; Shinn on Attachments, sec. 184; State ex rel v. Binney, 127 Mo.App. 710; State ex rel. v. Hill, 60 Mo.App. 130; State to use of v. Thomas, 19 Mo. 613; Winsor v. Orcutt, 11 Paige (N. Y.) 578; Britson v. Tjernagel, 90 Iowa 356; State ex rel. v. Tittman, 134 Mo. 162. (2) Relator was not entitled to recover in this case unless he had proven that he had suffered actual and legal damages as a direct and proximate result of the attachment proceedings. Authorities cited under point 1, supra. (3) The relator suffered no damage as a direct or proximate result of the attachment suit referred to in this case. (a) It is conceded by relator that no property of relator was attached. (b) It is conceded by relator that the Missouri Pacific Railroad Company, against whom the only writ of garnishment was issued, was not indebted to relator for any money or property. (c) The action of the United States Railroad Administration in withholding money owed by it to relator was not a proximate result of the attachment suit because: (1) No writ of garnishment was ever issued against the United States Railroad Administration. It was different entity from the Missouri Pacific Railroad Company. Northern Pacific Railroad Co. v. North Dakota, 250 U.S. 135; Mardis v. Hines, 267 F. 171; Erie Railroad Co. v. Caldwell, 264 F. 947; Kersten v. Hines, 223 S.W. 586; Globe Ins. Co. v. Hines, 273 F. 774. (2) Even if a writ of garnishment had been issued against the United States Railroad Administration, it would have been absolutely without any effect--it would not have bound the United States Railroad Administration, as the United States Railroad Administration was the agent and instrumentality of the United States Government and was not subject to garnishment. Act of Congress, March 21, 1918, 40 U.S. Stat. at Large, 451, sec. 10; Presidential Proclamation of March 29, 1918, 2 Watkins, Shippers & Carriers (3 ed.), p. 1351; U. S. Railroad Administration General Order No. 43, Roberts, F. Liab. of Carriers, p. 1783; Northern Pacific Railroad Co. v. North Dakota, 250 U.S. 135; Dooley v. Railway, 250 F. 142. (d) Lawyer's fees which relator claims to have paid were not for services in procuring the dissolution of the attachment, as it is conceded that no lawyer ever appeared for relator in the attachment suit. The fees, if any, paid by relator for services outside of the attachment suit are not an element of damages in a suit on the attachment bond. State to use of v. Fargo, 151 Mo. 280; State to use of v. McHale, 16 Mo.App. 478; State to use of v. Larabie, 25 Mo.App. 208; State to use of v. Heckart, 62 Mo.App. 427. (4) Even if relator had been entitled to recover at all in this case, still the verdict was excessive. The amount was even greater than that authorized under the instruction given by the court at the instance of relator. State to use of v. McHale, 16 Mo.App. 478; State to use of v. Beldsmeier, 56 Mo. 226; State ex rel. v. Seavey et al., 137 Mo.App. 1, 8. (5) The jury found that relator was not entitled to more than two-fifths of the amount he used for and the action of the defendant in refusing to pay the amount sued for by relator was justified by the jury. It was not vexatious and the verdict of the jury in assessing a penalty and also attorneys' fees is contrary to the law and the evidence. La Font v. Insurance Co., 193 Mo.App. 543; Weston v. Insurance Co., 191 Mo.App. 282; Kahn v. Assurance Corporation, 187 Mo.App. 216; Rogers v. Insurance Co., 157 Mo.App. 671; Blackwell v. Insurance Co., 80 Mo.App. 75; Fager v. Assurance Co., 189 Mo.App. 464.
Nortoni, Moore, Breaker & Green, and Henson & Woody for respondent.
(1) Defendant is estopped to say that plaintiff was not damaged because the Railroad Administration had no legal right to refuse to pay him his money after the writ of garnishment had been served on the Missouri Pacific Railroad Company. State v. Stipp, 179 S.W. 723; State v. Walker, 85 Mo.App. 68; 12 R. C. L. 861; State v. Fargo, 151 Mo. 280; State v. Goodhue, 74 Mo.App. 163; State v. Stark, 75 Mo. 566; State v. Cowell, 125 Mo.App. 348; State v. Hesselmeyer, 34 Mo. 76. (2) Plaintiff is entitled to recover for any damages directly occasioned by the attachment suit, or by any process or proceedings in the suit. State v. Stark, 75 Mo. 566; State v. Shobe, 23 Mo.App. 474; State v. Beldsmeier, 56 Mo. 226; State v. Seavey & Flarsheim, 137 Mo.App. 1; State v. Goodhue, 74 Mo.App. 162. (3) The question of vexatious delay or refusal to pay is a matter to be determined by the jury, and formal affirmative proof thereof is not required. Brown v. Railroad, 45 Mo. 221, l. c. 227; Keller v. Insurance Co., 198 Mo. 440; Hicks v. Insurance Co., 196 Mo.App. 162; Barber v. Insurance Co., 269 Mo. 1; Jaggi v. Insurance Co., 191 Mo.App. 384.
--This action is founded upon a statutory attachment bond, executed by defendant (appellant) as surety is an attachment suit against plaintiff by one Charles C. Curry.
On November 16, 1918, the date of the filing of the Curry suit, an affidavit for an attachment was filed in aid thereof accompanied by the bond in suit. The bond is in the form prescribed by section 1731, Revised Statutes 1919, is penal in character, and is given for the purpose of indemnifying those persons mentioned therein against any loss or damage occasioned or proximately caused by the attachment proceedings. The bond is payable to the State of Missouri, and is conditioned as follows:
"Now, if said plaintiff shall prosecute his action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendant W. A. Leach or found to have been received by plaintiff and not justly due him, and pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of the attachment or any process or proceeding in the suit, or by reason of any judgment or process therein, and pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment, following the instructions of the plaintiff, then this obligation to be void, otherwise to remain in full force."
In the attachment suit of Curry against the relator herein Leach, no service of process was had or attempted upon the defendant, and he at no time appeared in that suit, nor was any property of the defendant levied upon by the sheriff. On the day that the suit was filed a writ of garnishment was issued at the direction of the plaintiff Curry and served upon the Missouri Pacific Railroad Company. Nothing further was done in the attachment suit, and the same was dismissed on November 7, 1919. In the garnishment case the usual interrogatories were filed, and the Missouri Pacific Railroad Company answered, denying that it was indebted to the defendant Leach in any sum. Afterwards the garnishee's answer was denied by the plaintiff, but nothing further was done in that case, and it was likewise dismissed on November 7, 1919.
On November 14, 1919, plaintiff herein, who was defendant in the attachment suit, filed the present action upon the said attachment bond. The petition, after alleging the filing of the attachment suit of Curry against Leach and the giving of the bond by the plaintiff in that proceeding and the issuance of the attachment against the defendant, alleged that the plaintiff herein had sold to the United States Railroad Administration in charge of the Missouri Pacific Railroad ties and other timber to the amount and value of $ 20,000; that the sheriff acting under the writ of attachment and under the direction of the plaintiff Curry attached the said sum of $ 20,000 due plaintiff from the said United States Railroad Administration in the hands of the agents, servants and employees of said United States Railroad Administration in charge of the Missouri Pacific Railroad, and summoned the Missouri Pacific Railroad Company as garnishee; that pursuant to said attachment and garnishment, the said United States Railroad Administration in charge of said Missouri Pacific Railroad, and the Missouri Pacific Railroad Company, withheld from relator the sum of $ 20,000 so due and owing him as aforesaid and deprived him of the use thereof, to his injury and damage; that by reason of said attachment proceedings plaintiff herein was deprived of the use and enjoyment of said $ 20,000 during the pendency of said suit, to his damage in the sum of $ 1,000, and that he was further damaged in the additional sum of $ 1,000 for attorney's fees and other necessary expenses in defending said attachment suit. The petition also asked for damages and attorney's fees for vexatious refusal to pay plaintiff's claim. The petition contained other allegations of damage in reference to plaintiff's credit and reputation, but these were abandoned at the trial and need not be referred to here.
Issue was joined upon the filing of a general denial by the defendant and after a trial by a...
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