Western News Co. v. Wilmarth

• Decision Date: 08 May 1885
• Citation: 33 Kan. 510,6 P. 786
• Parties: THE WESTERN NEWS COMPANY v. GEORGE O. WILMARTH
• Court: Kansas Supreme Court

6 P. 786

33 Kan. 510

THE WESTERN NEWS COMPANY v. GEORGE O. WILMARTH

Supreme Court of Kansas

May 8, 1885

Error from Shawnee District Court.

ACTION by George O. Wilmarth against The Western News Company, a corporation duly organized under the laws of the state of Illinois, brought December 14, 1880, to recover damages for the wrongful and malicious issuance and levy of an order of attachment. Thereafter the defendant demurred to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. At the April Term of the court for 1881, and on May 21st, the demurrer was overruled, the defendant excepting. On June 4, 1883, the cause came on for trial before the court, a jury being waived. The court made the following findings of fact:

"1. That the writ of attachment in the case of The Western News Company v. George O. Wilmarth, before Justice Brier, and under which the property of the defendant Wilmarth was attached, was wrongfully issued.

"2. That said writ of attachment was sued out without any reasonable or probable cause therefor.

"3. That said writ of attachment was not sued out with malicious motives.

"4. The attachments in the cases of John Foley v. George O Wilmarth, James Douglas v. George O. Wilmarth, Kate Douglas v. George O. Wilmarth, and The Western News Company v. George O. Wilmarth, were under the direction of Frank Patrick, who was then acting as the attorney for each of the plaintiffs in the above-entitled actions, levied upon the property of George O. Wilmarth, simultaneously, and for the purpose of an equal and mutual advantage of the plaintiffs.

"5. I further find that all the suits above named were, upon a change of venue, transferred from Justice Brier to Justice Reed, and from Justice Reed to Justice Hazen; that before such transfers were made, a motion to discharge the attachment in the case of John Foley v. George O. Wilmarth had been made by the defendant, and overruled by Justice Brier, but after the said transfer of said cases to Justice Hazen, motions were made to discharge the attachments in each of said cases, except the case of John Foley v. George O Wilmarth, in which last-named case the motion was overruled for the reason that Justice Hazen held that the action of Justice Brier in refusing to discharge the attachment in the Foley case was res adjudicata, and could not be reviewed or disturbed by him.

"6. I further find that the plaintiff Wilmarth sustained injury and damages by reason of the attachment of the defendant.

"7. That the damages sustained by the plaintiff, by reason of the attachment of this defendant, were four hundred dollars.

"8. That the stock and fixtures were not removed from Wilmarth's store building until after this dissolution of the attachments.

"9. I further find that the value of the goods plaintiff attached was one thousand dollars, and that they were sold by the constable for the sum of four hundred dollars."

Thereon the court gave judgment in favor of the plaintiff for the sum of $ 400, together with all costs. The defendant filed a motion for a new trial, which was overruled. The defendant excepted, and brings the case here.

Judgment affirmed.

Frank Patrick, for plaintiff in error.

Case & Moss, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The petition alleged, inter alia, that the Western News Company--a corporation organized under the laws of the state of Illinois--commenced on September 17, 1880, an action against George O. Wilmarth for the recovery of money; that on the day of the commencement of the action, said corporation wrongfully, maliciously and without just or probable cause therefor, obtained an order of attachment in that action against the property of Wilmarth, and thereafter entered the store of Wilmarth, in the city of Topeka, and attached and took possession of all his goods, wares and merchandise; that on November 10, 1880, such proceedings were had that the order of attachment was duly discharged.

I. It is contended that the trial court erred in overruling the demurrer to the petition, for the reason that "corporations are not liable for torts where the ground of legal responsibility is evil motive." The law is otherwise.

"Corporations are responsible for the wrongs committed or authorized by them, under substantially the same rules which govern the responsibility of natural persons. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, libels and the like, could not be committed by corporations, inasmuch as the state in granting rights for lawful purposes had conferred no power to commit unlawful acts, and such torts committed by corporate agents must consequently be ultra vires, and the individual wrongs of the agents themselves; but this idea no...