Baldwin v. Walker

91 Ala. 428 | Ala. | 1890

CLOPTON, J.

In respect to the rulings on evidence, the court erred in the following particulars;

(1.) In allowing plaintiff to testify that she never intended making Philadelphia, or any other place than Montgomery, her home; and that she had no intention of leaving, or removing from, or abandoning the State of Alabama. By the decisions of this court it is well settled, that the uncommunicated motive or intention of a party is a matter of inference to be drawn by the jury from the facts and circumstances of the case, and is not the subject of direct proof; such evidence has been uniformly declared inadmissible.—Ball v. Farley, 81 Ala. 288; McCormick v. Joseph, 77 Ala. 236; Whizenant v. State, 71 Ala. 383; Burks v. Bragg, 89 Ala. 204.

(2.) In not excluding from the jury the testimony of plaintiff, that her most cherished associations for years past have been in Montgomery; that no other place has, or has had, the same attractions for her; and that while her husband’s relatives reside in Philadelphia, and wanted his remains brought there, she brought them to Montgomery that she might live there with her children without regret. It is competent for plaintiff to state the facts, but not her conclusions or inferences as to the character of her associations, or of the attractions of the place, or her purpose in bringing her husband’s remains to Montgomery. Moreover, none of these answers are responsive to any interrogatories. They were calculated to prejudice the jury, without shedding light upon any issue in the case, and defendant was powerless to rebut or disprove the testimony.

(3.) In admitting the testimony of the witness Wharton, of plaintiff’s declaration to him, before the attachment was sued out, about her going to Philadelphia on a visit, and that he need not be uneasy about boarding with her. The declarations were not made at the time of leaving for Philadelphia, and were not explanatory of the act. Declarations made anterior to the suing out of the attachment, explaining plaintiff’s intention to leave the State only temporarily, are not competent.—Havis v. Taylor, 13 Ala. 324; Jackson v. Smith, 75 Ala 97.

(4.) In admitting in evidence plaintiff’s claim of exemption, and the testimony of the witnesses Westcott and Chandler, as to conversations had with the attorney of the plaintiffs in attachment. The claim of exemption was made, and the conversations were had, after the attachment was sued out. The court restricted the effect of this evidence to the inquiry, whether the claim of exemption was resisted from malice, and whether such malice existed at the time the attachment was sued out. If the attorney Relieved that plaintiff was not entitled to the exemption, it was his duty to resist the claim ; and even if he was actuated by malice in so doing, it is not shown that the plaintiffs in the attachment were informed that such claim had been made, or of the acts and declarations of the attorney.

The attachment was sued out by an agent. The general rule is, that the principal is not responsible for the malice or vexatious conduct of the agent suing out the attachment, unless he procures, authorizes, or ratifies such conduct, in the absence of a statutory ground for the issue of an attachment, the principal would be liable for actual damages; but he is not liable for vindictive damages, unless he is without probable cause for believing that grounds for suing out the attachment existed, or had knowledge of the facts relied on, and there is, in truth, no ground for the attachment. In City Nat. Bank v. Jeffries, 73 Ala. 163, it is said: “If a claim in a distant locality be intrusted to a reputable attorney for collection, and that attorney informs his client that there is a ground for suing out an attachment, and the creditor thereupon, at the attorney’s request, furnishes sureties to make the bond, in the absence of other knowledge or information, vexatiousness or malice can not be imputed to the creditor, and he is not responsible for exemplary or vindictive dapaages.”

The agent who sued out the attachment testified, that he was sent to Montgomery by the plaintiffs therein, to collect their claim, without instructions or request to sue out an attachment ; that after his arrival in Montgomery, he made as thorough investigation as he could in relation to the business and purposes of plaintiff, and was informed by her brother, or brother-in-law, that she was about to go to the city of Philadelphia ; and that he was also informed by the agent of K,. G. Dun & Go. that plaintiff had failed in business, sold out her stock, and made a deed of trust to all her property, except her house and lot, to secure a large debt due the First National Bank; also, that she was offering her house for sale. The. agent further testified, that he thereupon consulted an attorney, as to the course he should pursue, who advised him to take out an attachment; and that his principals provided security to enable him to sue out the attachment, upon a telegram from the attorney; also, that he had no communication with his principals, until the attachment was sued out.

These facts, if they existed, furnished probable cause for believing that plaintiff was about to remove from the State of Alabama, and malice or vexatiousness can not be imputed, even to the agent. Furthermore, there is no evidence that his principals were informed of the ground on which the attachment was sued out, but furnished the sureties to make the bond at the request of the attorney, nor that they were informed of any malice or vexatious conduct on the part of the agent. In the absence of any evidence tending to show such information, or that the conduct of the agent was authorized, procured, or ratified by the creditor, his malice or vexatious conduct can not be visited on his principals.—Jackson v. Smith, supra. On the evidence, if believed, the first charge requested by defendant, to the effect that the malice of the agent-, if any, can not be considered by the jury in estimating vindictive damages, should have been given. The charge is a copy of the second instruction requested by the defendant, in Jackson v. Smith, supra, which this court held ought to have been given. Merely providing security on the attachment bond by request of the attorney, without knowledge of the ground on which the attachment was sued out, or of any malice, or vexatious conduct on the part of the agent, is not a ratification of such conduct, which will make the principal responsible for vindictive damages.

Several of the rulings of the court are not in accord with these views.

We have been requested by counsel to discuss the law governing the allowance of attorney’s fees for defending the attachment suit. This question was not raised in the court below, either by objection to the evidence, or by charge. Whatever opinion we might express, would be mere dictum. We therefore decline to consider the question.

Reversed and remanded.