106 Neb. 549 | Neb. | 1921
This is an action by Amanda K. Gilbert, plaintiff, to recover damages resulting from the illegal acts of defendants in seizing the stock of goods in a bookstore owned and conducted by her in Lincoln, in dispossessing her, and in detaining her property five days before returning it to her. The items of damages pleaded are: Injuring and destroying stock, $1,000; destroying plaintiff’s business from October 1, 1918, to October 6, 1918, and injuring it for a year thereafter, $1,000; “mortification, humiliation, and disgrace,” $1,000; total $3,000. Defendant Lorenzo A. Simmons was the sheriff and defendant George Rothe was deputy sheriff. They seized and detained plaintiff’s property under an execution issued by direction of defendant Gertrude J. Cooper. The bookstore was formerly owned by David B. Gilbert, husband of plaintiff, but she bought it for $1,910 in March 1918, at the foreclosure sale of a chattel mortgage which he had executed. The husband, as principal debtor, and plaintiff had previously executed in favor of defendant Cooper a note for $2,500 and had secured the debt by a mortgage on a lot in Lincoln. The amount due on the real estate mortgage March 22, 1918, when a decree of foreclosure was rendered, was $2,731.47. After the mortgaged lot had been sold at sheriff’s sale to satisfy the decree, a balance of $485.45 due on the secured note remained unpaid. Though plaintiff, the wife of the prin
The litigants do not agree on the nature of the action. Defendants argue that their demurrer should have been sustained, because, under their interpretation of the petition, they are sued for violating an injunction and consequently are answerable only in equity for the .wrongs
A more serious question is raised by the contention that there is no competent evidence sufficient to sustain a verdict in favor of plaintiff for $1,000. The store was wrongfully closed for five days during a busy season, and to the extent of nominal damages, at least, there was no defense to plaintiff’s claim. The amount of the actual damages, however, depends on competent evidence. The principles of law applicable to a case of this kind are generally well settled.
A sheriff Avho levies on property of a Avife under an execution against her husband is liable for resulting-damages.
A judgment creditor AA'ho knowingly advises or ratifies an abuse of process resulting in a wrongful seizure of personal property to satisfy the judgment is liable as a trespasser. Murray v. Mace, 41 Neb. 60.
In the absence of fraud, malice or other aggravating' circumstances, mental suffering is not an element of damages for a trespass resulting in a sheriff’s temporary seizure of personal property. Murray v. Mace, 41 Neb. 60.
In the absence of malice, fraud or other aggravating cir
. Where a store is closed by the wrongful act of a sheriff in seizing and in temporarily detaining the merchandise therein under an execution, loss of profits and loss of good-will are provable as elements of damage in an action of trespass. 12 R. C. L. 996, sec. 18; Kyd v. Cook, 56 Neb. 71.
To justify a substantial recovery for the loss of goodwill and for the loss of profits in an action of trespass against a sheriff for the seizure and temporary detention of a stock of merchandise in a store, the evidence must contain sufficient data to enable the jury, with a reasonable degree of certainty and exactness, to estimate the actual damages. 12 R. C. L. 996, sec. 18; Kyd v. Cook, 56 Neb. 71; Sessinghaus Milling Co. v. Hanebrink, 247 Mo. 212, Ann. Cas. 1914B, 875; Burckchardt v. Burckhardt, 42 Ohio St. 474; Nightingale v. Scannell, 18 Cal. 315; Shaw v. Jones, Newton & Co., 133 Ga. 446.
The owner of a stock of merchandise may, as such owner, if he knows its value, testify thereto. Jensen v. Palatine Ins. Co., 81 Neb. 523; Hespen v. Union P. R. Co., 82 Neb. 495; Neal v. Missouri P. R. Co., 98 Neb. 460.
In the present case there was no foundation for the recovery of damages for “mortification, humiliation, and disgrace,” and the tidal court properly withdrew that issue from the jury. The other claims for damages were: Injuring and destroying stock, $1,000, and destroying plaintiff’s business for five days and injuring it for a year, $1,000. There was no proof of the extent to which any particular article of property ivas injured, or of the value of any missing or destroyed property. There was no evidence to support a finding that any article was either taken from the stock or physically destroyed as a result of seizure and detention. The extent 'of actual damages
Reversed.