45 Wash. 615 | Wash. | 1907
This was an action to recover damages for suing out a writ of attachment wrongfully, maliciously, and without reasonable cause to believe the grounds upon which the same was issued to be true. The items of damage claimed were as follows: For permanent improvements made by the plaintiff in fixing up the storeroom in which he was conducting his business at the time of the levy of the writ, $100; for detention of tools levied upon under the writ, $100; for expenses incurred in defending the attachment suit, $50; for destruction of business, $500; and for loss of profits, $500. The jury returned a verdict in favor of the plaintiff for the sum of $740, but upon motion the court ordered a new trial unless the plaintiff would remit the sum of $340 from the verdict. The plaintiff elected to remit that amount, and a judgment was entered on the verdict for $400, and for costs of suit, including $75 as attorney’s fees. From this judgment the defendant appeals.
It is first assigned as error that the court excluded secondary evidence of the contents of a certain letter which had been received in evidence on the trial of the attachment suit.
The court further admitted testimony, over objection, tending to show what the respondent might have earned in his trade by the use of the tools detained from him under the writ. This was error. The measure of damages for the wrongful taking or detention of personal property is the reasonable value of the use of the property during the period of detention, and damages for injury to the property, if any.
The court further instructed the jury as follows:
“If you find that the attachment was issued maliciously, then there are other elements of damages which would be allowed, which it would be your duty to award to the plaintiff, which are known, in the law, as exemplary damages. If you find that the attachment was issued wrongfully, and that there was no reasonable cause for its being issued, and that it was also issued maliciously — sued out maliciously by the defendant in this case, then he is entitled to recover exemplary damages — that is, damages by way of compensation for any injury to his reputation, pride or feelings — whatever you may find will compensate him for those items.”
This instruction was erroneous. In Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 26 Am. St. 842, 11 L. R. A. 689, and numerous later cases, this court held that^éxeínplary, punitive,'Ur--vjndictive damages are not recoverable in this state, unless authorized by statute. Bal. r 7 . (Code, § 5857 (P. C. § 5608), authorizes exemplary damages vftrrtetiens ■ on attachment bonds, if it be shown that the attachment was sued out maliciously, but this action was not on the attachment bond. Respondent waived his remedy on the attachment bond and brought a common law action for the wrongful suing out of the writ. By so doing he waived any special rights he might have in an action on the bond, and the amount of his recovery is measured by the same rules as obtain in any other common law action.
Numerous other errors are assigned, but we do not deem it necessary to discuss them, as the rulings, if erroneous, will not occur on a retrial. In view of such retrial, however, we will state: (1) That the respondent is not entitled to recover the cost of fitting up the storeroom as such. If the respondent was deprived of the use and occupation of the storeroom by reason of the attachment, he is entitled to recover the rea
For the reasons hereinbefore stated, the judgment is reversed and a new trial ordered.
Hadley, C. J., Fullerton, Root, Mount, Crow, and Dunbar, JJ., concur.