23 Haw. 584 | Haw. | 1917
OPINION OF THE COURT BY
The plaintiff, a married woman, owned a motor truck with which she did the business of teamster or truckman. She did not drive the truck herself, but her husband drove it for her and attended to the business, collecting the earnings which were deposited in bank to the credit of the plaintiff and by her checked out. She had no other business, and by the use of the truck actually earned a living for herself and family. The defendant, The Volcano Stables <fc Transportation Company, Limited, sued the husband of the plaintiff for debt and caused a writ of attachment to be issued, whereupon the defendant Pua, as sheriff, seized the truck under the attachment and held it prior to judgment, and thereafter for sometime held it under an execution which issued on the judgment. Soon after the seizure the plaintiff, acting by her attorney, notified the defendants that the truck was the property of the plaintiff, was exempt from execution, and demanded its release. The present action was brought by the plaintiff against the defendants to recover damages for the seizure and detention of the truck. At the close of the evidence on behalf of the plaintiff, which evidence tended to establish the foregoing facts and the value of the use of the truck during the time of its detention by the defendants, counsel for the defendants moved for an instruction to the jury to find for the defendants upon three grounds, (1) that the evidence did not show that the plaintiff was entitled to recover, (2) that the plaintiff was doing business separately at the time of the attachment of the truck and had not filed a certificate with the treasurer as required by the provisions of section 2959
Section 2465 R. L. provides that “Where an officer shall be about to levy an attachment, execution or other process on personal property, some of which shall be claimed as exempt, he shall demand of the defendant in writing that he make selection of such property as is exempt to him and in reference to which he has the right of selection; or, failing so to do, the officer shall make it for him, and any seléction so made shall be conclusive on the defendant.” Section 2470 R. L. exempts from attachment and execution one dray, truck or automobile, by the use of which a cart-man, drayman or truckman actually earns his living. Section 2467 provides that if any officer shall seize or sell property exempt from execution under section 2470 “he shall be liable to an action at the suit of the owner for all damages and costs sustained thereby.” It is claimed on behalf of the defendants that because the plaintiff did not drive the truck in question, but the same was driven by her husband, she is not a truckman within the meaning of the statute. The truck was used in hauling freight from place to place for hire and by such means the plaintiff actually earned a living for herself and family. The inability of the plaintiff to drive the truck herself did not prevent her from being a truckman within the contemplation of the statute, shé having no other business or occupation. She might well carry on the business of trucking by the hands of another when by so doing she actually earns her living. She is not to be denied the benefit of the exemption simply for the reason that on account of her sex or for other cause she can
It is contended on behalf of the defendants that as the plaintiff was doing business on her own behalf, and the certificate required by section 2959 R. L. had not been filed with the treasurer, that the said truck was by the terms of that statute subject to attachment and execution for the debts of her husband. In applying these several statutes to the case at bar we must consider section 2959 and construe it with reference to the other statutes mentioned, and, doing so, we hold that the language “If such certificate be not filed as aforesaid, the personal property employed in such business shall be liable to be attached as the property of the husband, and to be taken on execution against him,” found in said section 2959, has no application to personal property of the wife which is otherwise exempt from execution, although she is doing business in her own right and the certificate has not been filed. The legislature did not intend by the enactment of section 2959 to amend or repeal any provision of the exemption statutes.
' It is urged on behalf of the defendants that the motion for a directed verdict was properly granted for the reason that the execution defendant — the husband of the plaintiff — made no claim of exemption of the truck and that the claim of exemption made by the plaintiff cannot avail, she being a third party to the attachment proceedings. We hold that no claim of exemption either by the plaintiff or her
The exceptions are sustained and the cause remanded for a new trial. The costs in this court are awarded to the plaintiff.