132 Me. 402 | Me. | 1934
Action on the case for abuse of legal process. Defendants move to set aside the plaintiff’s verdict for $250.00 because they assert it is against law and evidence and damages recovered are excessive.
Chronologically stated, the credible facts are (no evidence in defense was offered) that on September 2, 1932, the plaintiff, then indebted to the Bell Tire Company in the sum of $33.65 for tires and tubes, operated a small grocery store in the town of Bumford. Late afternoon of this day, these defendants, in behalf of said ,
Immediately thereafter, Glovsky alone appeared in the plaintiff’s store, represented that he had a camp at the lake, and proceeded to purchase a bill of merchandise which he said he wanted to buy at a discount because he desired to re-sell the same. The plaintiff gave Glovsky his requested discount, the goods bought amounting to $16.17. This sale ivas in accordance with the plan proposed in the law office, for there, according to the testimony of the Deputy Sheriff, Glovsky “said he would go in and do the buying until he bought enough, and he came out and gave me” (meaning the Deputy Sheriff) “the signal before he turned the money over • to Saliem, and I was to put Mr. Fogg in as keeper.” Then, Glovsky’s purchase made but not paid for, upon notice, Defendant Fogg and Deputy Sheriff Roderick came into the store, when the attachment was made. Glovsky requested the officer to put Fogg in as keeper, and he did. The officer took from Saliem the only key to the store and gave it to the keeper. The property attached was all of the plaintiff’s stock and fixtures in the store, said merchandise in value being between $400.00 and $500.00, and the fixtures between $500.00 and $600.00, unencumbered except as to a small mortgage on a Frigidaire. At the time of the attachment, seven-thirty in the evening, the plaintiff remonstrated and told the officer that he did not think that he was acting within his legal rights.
Principles pertinent to abuse of process have lately been enunciated by this Court. To sustain such an action, “these two elements are essential: (1) the existence of an ulterior motive, and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge. The first of these elements may, perhaps, be inferred from the second, but existence of the first can not, in reason, dispense with proof of the second; for if the act of the prosecutor be in itself regular, the motive, ulterior or otherwise, is immaterial. . . . The test is, probably, whether the process has been used to accomplish some unlawful end, or to compel the defendant to do some collateral thing which he could not legally be compelled to do.” Lambert v. Breton, 127 Me., 510, 514, 144 A., 864, 866; Bourisk v. Lumber Company, 130 Me., 376, 156 A., 382; 1 Cooley on Torts (3rd Ed.), 355, 356; Spear v. Pendill (Mich.), 130 N. W., 343; 1 R. C. L., 103, Sec. 4.
/The plaintiff in this action sues not for malicious use but for malicious abuse of process. They are distinguishable. 1 R. C. L., 102, Sec. 2. “The fundamental distinction between malicious use and malicious abuse of process is that the first is an employment of process for its ostensible purpose, although without probable cause, whereas the second is employment of process for a purpose not contemplated by law. Another distinction is that, in the case of
In an action for abuse of process “the gist of tort or wrong consists in the unlawful use of a lawful process. The bad intent must culminate in an actual abuse of the process by perverting it to a use to obtain a result which the process was not intended by law to effect. . . . Regular use of process can not constitute abuse, even though the user was actuated by a wrongful motive, purpose or intent.”Sec. 376, 50 C. J., pages 614 and 615; Wood v. Graves, 144 Mass., 365, 11 N. E., 567; Cooley, supra; Spear v. Pendill, supra; Glidewell v. Murray-Lacy & Co., et al., 98 S. E., 665; 4 A. L. R., 225.
Validity of the process is no defense to an action for its abuse. Glidewell v. Murray-Lacy & Co., et al., supra; Sec. 379, 50 C. J., page 617. But good faith is a defense in such an action. Williams v. Eastman, 208 Mass., 579.
All persons who knowingly participate in the abuse of process are liable for damages caused thereby Jk'. but a plaintiff in a process who does not direct or participate in abuse of the process by the officer and does not ratify his acts is not liable. Sec. 383, 50 C. J., page 618; Wood v. Graves, supra; 1 R. C. L., 109, Sec. 14.
We come, then, to apply the law, and particularly that stated in Lambert v. Breton, supra, to the facts in this case and thus will we examine, then, to discover whether there was “any ulterior motive,” and, further, if there were “any acts in the use of the process other than such as would be proper” in its regular prosecution.
What was done with this process and by whom? The Deputy Sheriff was the agent of these defendants. They were personally present and directed his conduct.
First: Was the attachment excessive? Commanded to attach to the value of $70.00, property in value from $1000.00 to $1200.00 was attached. We are not unaware that our Court, in Devereaux Company v. Silsby, 120 Me., 362, on page 365, stated: “This Court has frequently held that attachments less or exceeding the directions in the precept do not render the officer serving the pre
Good faith and sound discretion required the attachment of at most not more than one tenth of this property. Only so much property attached, it might have been easily separated and removed by the officer, the plaintiff left in possession of his store and his conduct of it not otherwise interfered with. The attachment was grossly excessive.
Second: The appointment of a keeper was unnecessary and can not be justified. As it was an improper use of this process, whose ad damnum was only $70.00, to attach all of the stock and fixtures, so it necessarily follows that it was equally improper to appoint Fogg to keep it. One can not justify the appointment of a keeper of property wrongfully attached.
v- Third: The plaintiff’s only key to the store was taken from him. True, he was not forcibly ejected. He was not locked out until later in the evening, when the keeper went from the store and locked the door. Still, the officer’s taking of the key and consequent possession of the store deprived the plaintiff of his right to conduct and carry on his own business. If he would have been justified in attaching only a portion of the stock of merchandise and fixtures, then the remainder not attached could not lawfully have been separated from the plaintiff by lock and key, unless by his consent. The locking up of this store, without consent of the plaintiff, was clearly an abuse of this process.
Fourth: The keeper, if he could be said to be rightfully appointed as keeper, instead of keeping all of the property attached, sold some of it and converted it into cash. Our statute authorizing the attachment of personal property provides: “All goods and chattels may be attached and held as security to satisfy the judgment.” It. S., 1930, Sec. 24, Chap. 95.
The sale of this property finds justification neither in the statute nor other sound principle of law. Such conduct was clearly without authority and improper use of this process.
Furthermore, the attachment was discharged when the officer returned the key to the plaintiff. “When the keeper abandons the possession, the attachment is dissolved.” Wheeler v. Nichols, 32 Me., 233, 240; Gower v. Stevens, 19 Me., 92; Brown v. Howard, 86 Me., 342, 344, 29 A., 1094. The subsequent retention of the money taken was tortious and actionable.
-/» Thus the defendants, by their own and their agent’s acts, exceeded the authority of the process in these several respects, and, exceeding its authority, became trespassers^ ab initio. Knight v. Herrin, 48 Me., 533.
“An officer who attaches property on mesne process and sells it thereon, without the consent of the creditor and owner, or otherwise than by the mode prescribed in the statute, becomes a trespasser ab initio.” Ross v. Philbrick, 39 Me., 29.
“When entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio. Or in other words, ‘where the law has given an authority, it is reasonable, that it should make void everything done by an abuse of that authority, and leave the abuser, as if he had done everything without authority.’ Bacon’s Abr. Trespass, B.” Ross v. Philbrick, supra, at page 31; Boston & Maine Railroad v. Small, 85 Me., 462, 465, 27 A., 349.
Improper acts alone, however, in the use of process are not enough to establish liability for abuse of process. Such acts must be accompanied by “the existence of an ulterior motive.” Lambert v. Breton, supra. Was there such here ? The motive may be inferred from the improper acts, as stated in the case last cited. Here there is no necessity to resort to inference, for there is abundance of
Damages
“Damages recoverable for abuse of process are compensatory for the actual results of the wrong and may include recompense for physical or mental injury, expenses, loss of time and injury to business, property, or financial standing.” Sec. 392, 50 C. J., page 621; McGann v. Allen, 105 Conn., 177, 184, 134 Atl. 810; Malone v. Belcher, 216 Mass., 209, 103 N. E., 637; Barnett v. Reed, 51 Pa., 190, 88 Am. Dec., 574.
We have no knowledge as to the way in which the jury arrived at the $250.00 declared in its verdict. Although the only specific item of compensatory damage was the money taken and not returned, yet the jury had the right, if it found the facts would warrant, to allow the plaintiff reasonable compensation for some of the other elements above enumerated.
Besides compensatory damages, “actual damage having been proved, the jury were justified in adding punitive damages. ‘Acts wilfully and designedly done which are unlawful are malicious in respect to those to whom they are injurious.’ Page v. Cushing, 38
Motion overruled.