9 Ga. App. 745 | Ga. Ct. App. | 1911
This case has been before the court previously, and the judgment then was reversed on the ground that the court erred in directing the verdict in favor of the defendant. See Speth v. Maxwell, 6 Ga. App. 630. On the next trial of the case the plaintiff recovered a verdict for $375, and the defendant excepts. The facts are these: Maxwell (whose estate the defendant represents as executrix) had sold to Benson & Devoe a refrigerator and ice
We have come to the conclusion that the present verdict can not be sustained under the evidence. The actual damages suffered by the plaintiff were much less than the amount of the verdict, and we do not consider the evidence sufficient to authorize the recovery of punitive damages. While, as this court held in a former decision of the case, punitive damages might be allowed in the event it appeared that the plaintiff had committed 'the trespass maliciously and without probable cause, still the entire evidence here is sufficient totally to negative the existence either of malice or want of probable cause, or is insufficient ,to show that recklessness or wantonness of conduct which is usually essential to the allowance of damages of this character. It is not contended that the plaintiff or his agents who sued out this attachment and caused it to be levied were actuated by any actual malice or positive ill will toward the plaintiff, but it is said that legal malice may be inferred from the lack of .probable cause existing for the issuance and levy of the attachment under all the circumstances of the case. We are of the opinion that whether the judgment in the claim case by which the property was found not subject to the attachment was correct or not, probable cause nevertheless existed. The only theory on which Speth’s title to the property could be considered as superior to Maxwell’s reserved title is that he bought without notice, actual or constructive, of the fact that Maxwell had reserved the title in the conditional sale'to Benson & Devoe. If with such notice he bought the property, he thereafter held it in fraud of Maxwell’s rights, within the purview of the Civil Code (1910), § 5084, relating to attachments for purchase-money. It is not insisted that he had actual notice, but it is insisted that inasmuch as he saw the
So far as that title is concerned, the question is now foreclosed in Speth’s favor by the judgment in the claim ease, but that judgment is not at all conclusive upon the question now involved as to whether Maxwell had probable cause to believe that the property was subject to his attachment. That question must'be determined without reference to what the court finally held in the claim ease. For the purpose of showing probable cause for an unsuccessful action, the prosecutor of that action may show that he lost it through an erroneous judgment of'the court. Furthermore, he may show that whether the judgment of the conrt was erroneous or not, the question involved was reasonably doubtful. Certainly in this case the question involved was reasonably doubtful. Both malice and want of probable cause are lacking. We have not quoted at length from the evidence to show how very cautiously Maxwell and his counsel proceeded in the attachment case, and how very solicitous they were to protect Speth from any injury while the question of his title to the property was being decided; but it is in tire record. No part of the verdict can be sustained on the theory that it is a finding for punitive or exemplary damages.
The plaintiff’s actual damage consisted in the loss of a small amount of milk and butter, the value of which is not shown by the evidence, and, as he says, in the loss of the refrigerator and the icebox, the highest proved value of which did not exceed $175. He then claims loss of profits from his business for five months at $75 per month. We are of the opinion that the evidence discloses that Spetli’s damages, so far as they are ascertainable, except the, milk and butter, are traceable to liis own refusal to protect bimself from the result of the defendant’s tort in causing the refrigerator and ice-box to be levied on. Maxwell’s attorney testified that lie offered to allow Speth to retain the property in his possession until
As to the value of the refrigerator and ice-box themselves: The rule ordinarily may be, as contended by able counsel for the defendant in error, that the wrong-doer can not compel the adverse party to accept back the property even in mitigation of the damages, and it may be that if Speth had not filed in court his claim, whereby the sale of the property under the attachment was stopped, he could have sued in trover or in trespass and have invoked this doctrine, but we do not believe that one who files a statutory claim to property and succeeds in having the property found not subject, thereby releasing the levy, can then refuse to take back the property, and hold the plaintiff in the attachment, or other proceeding which has been instituted, liable for its full value. If the property
' Throughout this Opinion we have treated the proceedings by which Speth succeeded in defeating Maxwell’s levy of the attachment as a claim case. The pleadings in that case are not set forth at length in the record, and Speth, in the brief- recital of these proceedings, is not spoken of as a claimant, but as the defendant, and the parties in this court have not spoken of him as claimant, but we have felt it necessary to treat that proceeding as a claim case, for we know of no other procedure by which Speth, not being a party to the attachment, could have succeeded in having the levy dismissed. If it was not a statutory claim, strictly speaking, it must have been some proceeding essentially in the nature of a statutory claim. See' Civil Code (1910), §§ 5115 et seq. Otherwise, it was a wholly nugatory proceeding, and the judgment thereon was not entitled to any faith and credit as an adjudication. We reverse the judgment, on the ground that the verdict is without evidence to support it, but what we have said will be sufficient to guide the court in the next trial of the case, thus making it unnecessary for us to deal specifically with a number of the errors assigned in the record.
Judgment reversed.