121 Ky. 802 | Ky. Ct. App. | 1906
Opinion by
Reversing.
Appellant’s stock of clothing and merchandise of a similar’ character was levied on under an execution in favor of appellees Grinstead & Tinsley. It was levied on as the property of II. L. Manning. Before the execution was levied the officer required a bond of indemnity which was given. Appellant executed a forthcoming bond as claimant of the stock of merchandise, whereupon it was turned back to him by the-sheriff. None of it had been sold or damaged while-in the sheriff’s custody, nor had it depreciated in value. Grinstead & Tinsley proceeded upon the-forthcoming bond, by notice, to try the question of title, resulting in a judgment settling that question in appellant’s favor. This suit was then brought on the bond of indemnity. On the trial, the facts above recited wére shown. In -addition, appellant offered to prove that he paid $50 counsel fee for defending, his title in the motion or suit of Grinstead & Tinsley against him on the claimant’s bond, as well as incurred $16 of expenses for his witnesses. The circuit court refused to admit the evidence. Appellant also offered to prove that he could have made,$5 per day profit by conducting his business, but was deprived of it for 13 days while the sheriff had the custody of his goods. He "also claims damages to his-business generally by the demoralizing effect of the wrongful seizure of his .stock. All this evidence was also excluded. . Upon the showing made the trial
This is not a suit for malicious prosecution or attachment. Exemplary -and extraordinary damages were not permitted to he assessed. The real effect -of the proceedings was that G-rinstead & Tinsley, creditors -of H. L. Manning, conceiving that his brother, appellant, was covering up his property so as to -defeat H. L.’s creditors, took the course they did to test the bona fides of appellant’s claim of his ownership. But Grinstead & Tinsley failed to establish their claim of fraud. The penalty of such failure, so far as the suit alone is concerned, is the liability for all the legal costs of the action. This was adjudged against them, and they have presumably paid it. But in the absence of malice they are not liable for counsel fees to the successful litigant. That point is discussed and settled in Worthington v. Morris, 98 Ky., 54, 17 Ky. Law Rep., 624, 32 S. W., 269. Nor was appellant entitled to recover as damages the fees paid for witnesses who were not used, or whose claims were not allowed, in that action. Such fees, if legally taxable against appellant, were adjudged to him on the other trial. If not legally taxable, they ought not to adjudged to him at all.
But there is a further question involved; that is, what was the damage sustained by appellant, whose goods were admittedly seized wrongfully by the sheriff under the execution of appellees, and by their procurement -and direction? By reason of the bond of indemnity required by the sheriff he is exonerated from liability for such damage, if the bond was solvent when executed. (Section 643, Civil Code Prac
The execution commanded the officer to seize the-goods and chattels of H. L. Manning subject to execution — not those of J. L. Manning. When the sheriff went beyond the authority of his writ, and seized under it the property of a stranger to it, he was not protected by it. He was a trespasser from the beginning, and but for the effect of the bond of'
That the owner is entitled to have his property restored in the same condition it was when taken is a principle unchallenged. But manifestly that is not all, for that may not always make him whole. Where the property is usable, and its use has a value, undeniably the owner should be compensated for the time he was deprived of the use. For example, a horse, an express wagon, a milk cow, a piece of machinery used in a manufacturing plant, and the like. In such cases the value of the use of the thing is as susceptible of proof as the value of the thing itself, and is just as much the property of the owner as is the article. But there are cases where the property wrongfully taken can not be used in the sense that its mere use brings an income. In such cases it is usual to allow interest upon the value of. the thing as compensation to its owner for being deprived of its pos
Appellant’s goods had a value as part of his business. His trade belonged to him as certainly as the goods. Neither could be disturbed without doing some damage to the other. When appellees caused appellant’s goods to be seized and withheld for a season, certainly it does not answer to say, later on, “You have your goods unimpaired in value.” For, while that may be true, he has not had the use of them during the time they were wrongfully withheld. A merchant’s use of his wares is to sell them at a profit, and to reinvest the proceeds and sell again at a profit. He attracts trade by being constantly prepared to meet its wants. The value of his goods is to be found mainly in so using them in his business. When the natural and direct result of a tort is the interruption or injury to an established business, profits lost during the period of enforced suspension ought to be recovered from the wrongdoer. This is the only adequate remedy to him. . Less than that
While profits are generally deemed too remote to be considered in estimating damage, yet they are sometimes allowed to be shown for that purpose. The reason is, always, that no other measure, equally just, can be resorted to in the particular case, or the class to which it belongs. When allowed in a case such as the one at bar, the general course is to show the average profits in the interrupted business during a corresponding previous average period. (Peshine v. Shepperson, 17 Grat., 472, 94 Am. Dec., 468; San Antonia v. Royal, 16 S. W., 1101; Houston, &c. R. R. Co. v. Hill, 63 Tex., 381, 51 Am. Rep., 642; Bagley v. Smith, 10 N. Y., 489, 61 Am. Dec., 756; The Mayflower, 1 Brown’s Adm’r., 387, Fed. Cas. No. 9,345; Allison v. Chandler, 11 Mich., 548.)
Damage to appellant’s future business, or to his credit, are not recoverable in this action. The distinction and the reason are well stated by Judge Simpson in Petit & Owen v. Mercer, 8 B. Mon., 50. That was an action on.an attachment bond, where the writ had been wrongfully sued out and levied on the goods of appellee Mercer. The court drew the line between malicious and ill-advised levies. In the former, it was held, he could have recovered for injury to his credit and for the derangement of his business ; but of the latter it was said: ‘ ‘ The condition of the bond is satisfied, and its terms substantially complied with, by securing to him damages adequate to the injury to the property attached and the loss arising from the deprivation of its use, together with the actual costs and expenses incurred.” (See Sedgwick on Damages, section 127.)
The judgment is reversed, and cause remanded for a new trial, under proceedings not inconsistent herewith.