Wells Co. v. Lane

• Decision Date: 01 February 1927
• Docket Number: 6 Div. 94
• Parties: WELLS CO. v. LANE.
• Court: Alabama Court of Appeals

115 So. 74

22 Ala.App. 269

WELLS CO. v. LANE.

6 Div. 94

Court of Appeals of Alabama

February 1, 1927

Rehearing Denied March 8, 1927

Affirmed after Mandate Nov. 1, 1927

Rehearing Denied Dec. 13, 1927

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Hubert Lane against the Wells Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Certiorari granted by Supreme Court in Wells Co. v. Lane, 115 So. 77.

Certiorari denied by Supreme Court in Wells Co. v. Lane, 115 So. 79.

Charge that judgment debt for which writ issued was no defense to suit for wrongful garnishment held proper.

The defendant, Wells Company, operated a clothing store. Plaintiff, Lane, purchased some apparel of the defendant on credit, executing a form of note contract by which he agreed to make stipulated weekly payments on his purchases. In the course of the dealing a dispute arose between the parties as to the balance due by the plaintiff. Plaintiff's attorney called upon the manager of defendant in the matter of the account. In this conference no agreement was reached; the manager claiming a balance due of $12.98, the attorney insisting that plaintiff owed only $2.98. The attorney returned to his office, and wrote defendant this letter:

"Inclosed you will find check for $2.98 given to me by Hubert Lane to be paid you. He claims that this is all that he owes you, and says that, if he owes you any more, and you can establish it in court, he is ready, able, and willing to pay it."

Thereafter defendant instituted suit against the plaintiff for $10, and ran a garnishment upon the employer of the plaintiff. On the trial judgment went against Lane for $10, which was paid by his attorney.

Thereafter appellee instituted this suit; his complaint being as follows:

"The plaintiff claims of the defendant the sum of $10,000 damages, for that on, to wit, August 21, 1925, the defendants, servants, or agents, acting within the line and scope of their authority, did wrongfully, maliciously and without probable cause therefor cause a garnishment to be run out of the municipal court of Birmingham, Third Division, and to be served upon plaintiff's employer, the American Cast-Iron Pipe Company, and as a proximate consequence of the running and serving of the garnishment the plaintiff was caused great humiliation, was caused to expend money for attorney's fee, to lose time, and to be put into a bad light with his employer, and plaintiff claims punitive damages."

Demurrer to the complaint took the points: (a) That it does not state a cause of action against defendant; (b) that its averments do not negative an indebtedness due by plaintiff to defendant at the time of the matters complained of; (c) that its averments do not negative a judicial ascertainment of plaintiff's indebtedness to defendant at the time of the grievances complained of; and (d) that its averments are conclusions of the pleader.

The demurrer was overruled.

Plea 3 set up that plaintiff was indebted to defendant on an account past due, for the collection of which defendant entered suit in municipal court, and in which suit, when heard on the merits, this defendant recovered judgment equal to its claim, which said judgment was thereafter paid and satisfied.

Plea 4 alleges that:

"At no time did this defendant resort to any action against the plaintiff herein other than an orderly legal procedure for the collection of an account past due and owing by plaintiff to this defendant."

This charge was given at plaintiff's request:

"I charge you, gentlemen of the jury, that the fact that the defendant obtained a judgment against the plaintiff in the municipal court is no defense to this cause of action."

Charges 4 and 5, refused to the defendant, are as follows:

"(4) If the jury believe the evidence in this case, they must find for the defendant.

"(5) The court instructs the jury that, before the plaintiff would be entitled to recover in this case, he must show by the evidence to the reasonable satisfaction of the jury that he owed no debt to the defendant at the time of defendant's garnishment against him, and that defendant wrongfully and maliciously, and without probable cause caused the garnishment to be run against plaintiff."

There was a verdict for plaintiff for $100, and judgment accordingly, from which defendant appeals.

J.B Ivey, of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

RICE J.

Judgment in favor of appellee against appellant in a suit by him seeking damages on account of an alleged wrongful suing out of a writ of garnishment directed to his employers. The demurrers to the complaint were properly overruled. McCarty v. Williams, 212 Ala. 232, 102 So. 133.

Since, where a number of rulings of the trial court are combined and argued in brief of appellant together, as a single assignment of error, the appellate court will not reverse, if any one of said rulings is free from error (Malone v. Reynolds, 213 Ala. 681, 105 So. 891), it will suffice to dispose of appellant's argument as to error in the rulings made the subject of its assignments of error 2 and 3 to say that plea 4 presented nothing more than the general issue, and demurrer thereto was properly sustained. "Two essential facts are necessary to justify a garnishment in aid of a pending suit: First, that there is an existing indebtedness from the defendant; and, second, that in the belief of the person praying the process, garnishment against the supposed debtor 'is necessary to obtain satisfaction of such claim.' If either of these essential facts be wanting, the garnishment is wrongful, and the defendant is entitled to his action, and to a recovery commensurate with the injury he has actually sustained." Dishman et al. v. Griffis et al., 198 Ala. 664 . "If the party suing out the process believe the facts to exist, and is not influenced by a reckless or vexatious spirit, the recovery should not go beyond the actual injury. Such suit would not, in contemplation of law, be vexatious." Pounds et al. v. Hamner, 57 Ala. 342.

If though, the garnishment be vexatious, a different rule would apply. In that case exemplary damages may be recovered--the amount to be determined by the jury in their discretion. Id. "*** it would be...