52 Mo. App. 1 | Mo. Ct. App. | 1892
The action is one to recover damages caused to the testator of the plaintiffs by the wrongful prosecution of a writ of attachment. The petition contains two counts. The first alleges a wrongful prosecution of the writ, the attachment of the decedent’s property thereon, the final dissolution of the
A large number of errors are assigned, of which we shall notice specially only those hereinafter mentioned. Others, to which the defendant either did not properly except and save his exceptions, or which are not clearly shown by the record, we will notice in a general way so as to prevent their recurrence upon a retrial of the cause.
In the course of the trial the plaintiffs called two witnesses, designated in the record, without giving their first names, as Mr. Blair and Mr. Dempsey. These witnesses were called for the purpose of proving the reasonable value of the services of counsel for the plaintiffs’ decedent in the litigation. It was not shown that they were attorneys-at-law, or in any way qualified to speak on the subject. The defendant objected to their evidence, because it did not appear that they had any actual knowledge or expert opinion on the subject. The court overruled the objection and the defendant ■excepted. This was clearly erroneous. The court may have known that the parties thus called were attorneys-at-law, and, as the question whether they were qualified to give expert testimony was one for the court, may on that ground have admitted their testimony without further proof. But, since that question is subject to
Champ Clark, an attorney-at-law, was called by the plaintiffs and also gave evidence touching reasonable attorney’s fees in the whole case. On his further examination he was asked by plaintiffs’ counsel whether he had not been consulted by the defendant touching the attachment suit, and what his advice was objection was made to this inquiry, because the communication was privileged. The court properly sustained the .objection. Notwithstanding this ruling, counsel for plaintiffs persisted in asking the witness several other questions on the same subject, all of which the court ruled out. There was no error on the part of the court in this matter, but there was misconduct on the part of counsel for the plaintiffs, and its recurrence should be avoided. This conduct became all the more prejudicial
Before leaving the question of evidence, we deem it proper to remark that there was no error in permitting the plaintiffs’ witnesses to testify as to the value of the crops, cattle and farming implements. The witnesses had prima facie qualified themselves to testify on the subjects by showing that they were farmers of many years’ experience. If, on their cross-examination, it appeared that they were not familiar with the value of the grain or cattle in question, because they had not seen them, or for other reasons, that fact could not put the court in the wrong for admitting their testimony before such showing was made. The testimony as to farming implements and stock possessed by the decedent in years succeeding the attachment was irrelevant, and should have been excluded. But we must also say in this connection that we cannot put the court in the wrong for disregarding general objections* and that the defendant’s objections in most instances were too general to be noticed. An objection that evidence is incompetent goes for naught, although the evidence may be wholly irrelevant. The court is entitled in each instance to be informed of the specific nature of the objection, so as to rule intelligently thereon, and there is.no excuse for not making such objection specific in every instance, particularly since the presence of a short-hand reporter at the trial enables parties to do so without any loss of time.
The defendant on the opening of the trial objected to the introduction of any evidence in support of either count of the petition, on the ground that neither stated a cause of action. The court overruled the objection
The court at plaintiffs7 instance gave, among others, the following instruction, which is challenged as erroneous: “On the first count of the petition: If the jury believe from the evidence in the cause that the defendant Estes, on or about the second day of June, 1881,instituted a suit by attachment against deceased, Jacob Fry, and caused to be attached the property mentioned in the first count of plaintiffs7 petition, and that'at the trial of the plea in abatement, filed by said Jacob Fry, deceased, the verdict of the jury and judgment of the court was in favor of said Jacob Fry, deceased, and against the defendant Estes, dissolving the attachment, and that Jacob Fry is now deceased, and that plaintiffs are the executors of his estate, then your verdict must be for the plaintiffs in such sum as you believe from the evidence in the case the property was worth at the time it was attached, together with six per cent, interest from the time said property was attached, less the sum of $387. 81 paid to plaintiffs in 1890 by the receiver as the net proceeds of the wheat. And you may give such further damages as you may believe the estate of Jacob
Conceding that the first count did state a cause of action, yet this instruction was erroneous. There is no statement therein on what amount the six per cent, interest was to be allowed, nor what traveling expenses were referred to, and the attorney’s fees are not limited to attorney’s fees necessarily incurred in obtaining a dissolution of the attachment, but such as the jury may believe should be allowed in the case from the evidence.
Where the court instructs the jury on the measure of damages, it must instruct them correctly, because the measure of damages is a question of law. Kick v. Doerste, 45 Mo. App. 134, 141, and cases cited.
On the second count of the petition the court gave to the jury, among others, the following instruction which is challenged as erroneous: “If the jury believe from the evidence in the case that the defendant Estes in the said attachment suit was actuated by any hostile, angry,, vindictive, mercenary or malicious motive against said Jacob Fry, and that said attachment suit was without probable cause, as defined by the court in a former instruction, then you should find a verdict for the plaintiffs on the second count in their petition.”
It will be noticed that this instruction is on the question of malice, and uses the adjectives applicable to the defendant’s motives in the disjunctive. Under this instruction the jury were not only warranted but instructed to find malice in the attachment from the fact that the defendant was actuated by a mercenary motive, and acted without probable cause. Since
We must, therefore, conclude that both these instructions were erroneous and prejudicial.
In remanding the ease for a new trial we will pass on some propositions raised upon the trial and by the record, although no error is assigned upon them in this court. The defendant at the trial objected to the introduction of any evidence in support of the first count, on the ground that it failed to state any cause of action. When the court overruled this objection, he saved his exception and preserved it by motion for new trial. Although the ruling of the court is not expressly assigned for error in this court, we are bound to decide whether the first count does state a cause of action.
It will be noticed that the first count is not an action upon the attachment bond and does not even allege that an attachment bond was given, although it appeared upon the trial that such bond was given. Nor does the first count allege either malice or the want of probable cause in the prosecution of the attachment, but simply states that the attachment was wrongfully sued out. It is evident, therefore, that the first count states no cause of action at common law, because it shows no liability on. the part of the defendant either upon a contract raised by the bond, or an action upon the case at common law, — malice and want of probable cause being essential ingredients of the latter action. Cooley on Torts, 180; Drake on Attachment [7 Ed.] sec. 114; Lindsay v. Larned, 17 Mass. 189.
Since the supreme court first decided in State v. Thomas, 19 Mo. 613, that, in actions upon an attach
The judgment is reversed and the cause remanded.