U.S. Fidelity & Guaranty Co. v. Miller

• Decision Date: 30 June 1928
• Docket Number: 8 Div. 12
• Citation: 218 Ala. 158,117 So. 668
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. MILLER.
• Court: Alabama Supreme Court

117 So. 668

218 Ala. 158

UNITED STATES FIDELITY & GUARANTY CO. v. MILLER.

8 Div. 12

Supreme Court of Alabama

June 30, 1928

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for breach of garnishment bond by Frank Miller against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Douglass Taylor, of Huntsville, for appellant.

John J Sparkman, of Huntsville, for appellee.

BROWN J.

It is the settled law in this jurisdiction that, to authorize the recovery of exemplary damages in an action for wrongful attachment, the complainant must not only show that the process was wrongfully sued out, but that the plaintiff sued out the writ, without probable cause for believing that some statutory ground therefor existed, and that there was a debt or demand justly due or owing by the defendant to the plaintiff. Schloss et al. v. Rovelsky, 107 Ala. 596 18 So. 71; Crofford v. Vassar, 95 Ala. 548, 10 So 350; Hamilton v. Maxwell, 119 Ala. 23, 24 So. 769; Bell et al. v. Seals Piano & Organ Co., 201 Ala. 428, 78 So. 806; Pounds et al. v. Hamner, 57 Ala. 342.

Though the third count of the complaint does not aver ipsis verbis that the writ of garnishment was sued out without probable cause, it does aver that the notes, the foundation of King's suit against Miller, had been paid before the commencement of that suit, and, at the time the garnishment was issued, Miller was not indebted to King, and that King "well knew" this, and brought the suit and sued out the garnishment knowing that he did so wrongfully "and with the purpose and intent to disturb, annoy, and harass plaintiff."

These averments clearly import that the garnishment was not only wrongfully sued out, but was sued out without probable cause and were sufficient under the authorities to authorize the recovery of exemplary damages. Dothard v. Sheid, 69 Ala. 135; 2 R.C.L. 908, § 120; Spaids v. Barrett, 57 Ill. 289, 11 Am.Rep. 10; Watson v. Cain, 171 Ala. 151, 54 So. 610.

Under the averments of the second count of the complaint, if these averments were sustained by proof, the plaintiff was entitled to recover, at least nominal damages, and the demurrers to this count, taking the point that the debt due from Rutter, the garnishee, to plaintiff, which is alleged to have been "delayed and lost" to plaintiff "by reason of said process of garnishment being wrongfully, vexatiously, and maliciously sued out," was not a proper element of damages recoverable in the actions, were properly overruled. Terrell v. Nelson et al., 177 Ala. 596, 58 So. 989; Gilliland et al. v. Hawkins, 216 Ala. 97, 112 So. 454.

In Pounds et al. v. Hamner, 57 Ala. 342, 345, it was said that:

"If the garnishee be in fact indebted, the result will be to tie up the claim, and delay its collection, until the garnishment suit is determined. From this necessary result, some damage will be done the defendant; and it may be that the whole debt is thereby lost to him. Garnishment being a species of attachment, its tendency is to harass, and, in some degree, to bring odium on the defendant. On these accounts it is that an action is given to defendant, if the garnishment be wrongfully or vexatiously sued out. If the garnishment be simply wrongful, the measure of damage and of recovery will be the actual injury sustained, and nothing will be allowed for injured feelings. Floyd v. Hamilton, 33 Ala. 235. If it be also vexatious, then a different rule prevails."

One or more of the counts aver:

"That plaintiff sustained large damage in the loss of plaintiff's credit and standing and injury to his business by reason of said garnishment being wrongfully, vexatiously, and maliciously sued out."

The plaintiff offered evidence going to show that the plaintiff and King, at the time the garnishment was sued out, were business rivals, each operating a business college, that Rutter, the garnishee, was indebted to the plaintiff in the sum of $1,800, payable in installments evidenced by notes which plaintiff had hypothecated as collateral with a bank to obtain credit as a means of obtaining money to conduct his business; that, as...