Wells Co. v. Lane

Full title: WELLS CO. v. LANE

Court: Court of Appeals of Alabama

Date published: Dec 13, 1927

22 Ala. App. 269 (Ala. Crim. App. 1927)

115 So. 74

Opinion

6 Div. 94.

February 1, 1927. Rehearing Denied March 8, 1927. Affirmed after Mandate November 1, 1927. Rehearing Denied December 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, 217 Ala. 10, 115 So. 77.

Certiorari denied by Supreme Court in Wells Co. v. Lane, 217 Ala. 12, 115 So. 79.

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.

The complaint is subject to the demurrer assigned. McCarty v. Williams, 212 Ala. 232, 102 So. 133; Brown v. Master, 104 Ala. 451, 16 So. 443. Defendant's pleas set up a good defense to the suit. Pounds v. Hamner, 57 Ala. 342; Hays v. Anderson, 57 Ala. 374. Evdence as to the correctness of the account should have been admitted. McKellar v. Couch, 34 Ala. 336; Tucker v. Adams, 52 Ala. 254. The charge given for plaintiff was misleading, leaving the impression that recovery might be had without proof of malice and want of probable cause. McCarty v. Williams, supra; McKellar v. Couch, supra; Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79. Defendant's requested charges should have been given. McLeod v. McLeod, 73 Ala. 42; Benson v. McCoy, 36 Ala. 710; Ewing v. Sanford, 21 Ala. 157; O'Grady v. Julian, 34 Ala. 88; Whitehurst v. Ward, 12 Ala. 264; Stewart v. Cole, 46 Ala. 646.

David J. Davis, of Birmingham, for appellee.

The complaint in this case is good. McCarty v. Williams. 212 Ala. 232, 102 So. 133; Brown v. Master, 104 Ala. 451, 16 So. 443. Where several assignments are argued in bulk, if any one of the assignments is untenable, the others will not be considered by the appellate court. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 366; Malone v. Reynolds, 213 Ala. 681, 105 So. 891; Bush v. Bumgardner, 212 Ala. 456, 102 So. 631. The fact that a debt existed is no defense to the wrongful issuing of a writ of garnishment. Mobile Fur. C. Co. v. Little, 108 Ala. 399, 19 So. 443.

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 [73 So. 966]. "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 difficult to prove that the person suing out the process did not believe the garnishment against such person was necessary to obtain satisfaction of the claim. Still, it is one of the issues * * * to be passed upon by the jury, under appropriate instructions." Pounds et al. v. Hamner, supra.

With the above principles in mind it seems proper to observe that in the instant case the plaintiff admitted in open court that, at the time the writ of garnishment issued to his employers, there was a debt owing from him to the appellant. Consequently it would appear that the details of his business transactions with appellant, showing, or tending to show, how the dispute arose which occasioned the appellant to institute the garnishment proceedings, were immaterial. The question litigated in this case was not as to whether or not appellee was justly indebted to appellant at the time the garnishment proceedings were instituted, but was rather the simple question of whether or not appellant had reasonable cause for belief, and believed, garnishment necessary to recover the amount of its claim. We therefore hold that the court acted without error in sustaining the appellee's objections to the several questions calling for information with reference to his said business transactions with appellant.

It seems to us proper that the jury should have been in possession of whatever facts there were that would have had a tendency to show that appellant did not have reasonable cause to believe that garnishment proceedings were necessary for it to recover its claim against appellee. In line with this the letter from appellee's attorney to appellant was properly admitted in evidence, because, forsooth, there were expressions in said letter which might have aided the jury in reaching a correct conclusion as to the presence or lack of a probable cause for believing, on the part of appellant, that it was necessary for it to institute the garnishment proceedings against appellee in order to collect its claim. But the details of which we might as well call the "squabble" between appellant's manager and appellee's attorney would seem to have been of no aid to the jury, and the trial court properly sustained objections to the various questions calling for same.

While the written charge given at appellee's request may have needed explanation, still it was not incorrect, and the trial court will not be reversed for giving it. The remedy for appellant would have been to ask an explanatory charge. For that matter, though, we might say that we think the charge in question was fully explained, or rather fully explains itself, when taken in connection with the court's oral charge.

There was no error in refusing to give written charges 4 and 5 requested by appellant, for reasons that will be obvious in view of what we have said here.

Likewise, without further discussion, we are of the opinion that the motion for a new trial was properly overruled.

There being no error in the record, the judgment is affirmed.

Affirmed.

Opinion after Remandment by Supreme Court.

PER CURIAM.

The judgment of this court, affirming the judgment of the trial court in this case, was by the Supreme Court reversed upon the sole ground, as we read the opinion of that court, of error committed by us in holding that a certain letter, quoted in full in the opinion of the Supreme Court, was admissible in evidence. Further consideration of the case reveals that the letter, the admission of which in evidence was made the subject of the Supreme Court's ruling, was offered and admitted in the court below without objection. Inadvertently we failed to make this statement in our original opinion, and we deem it only just to now, by making it, correct the impression the Supreme Court naturally had that the letter was admitted in evidence over appellant's timely objection.

As no error could be predicated upon the admission of this letter in evidence, it going in without objection, and as no other ruling of this court was held by the Supreme Court to be erroneous, we are constrained to hold, as we do hold, that the judgment of the lower court should be affirmed.

Appellant insists that appellee's counsel, having failed to comply with Supreme Court rule 13 by filing a brief in this court within the required time after submission of the cause, should under Supreme Court rule 38 have his present application to this court to correct or modify its opinion as above herein noted stricken. We merely observe that the Supreme Court, in the case of Caraway v. State, 207 Ala. 588, 93 So. 548, has said that this "rule provides in effect that it need not be applied in any case in which the ends of justice may appear to require further consideration."

We avail ourselves of this holding in this case, although we are of the opinion that it would be our duty to take the same action in the absence of any motion, in order that a judgment of reversal may not be predicated upon a ruling of the trial court to which no objection was made or exception reserved.

Affirmed.