Jones Leather Co. v. Woody

■Opinion by GALBRAITH, 0. This appeal is from a judgment rendered upon the verdict of a jury in an action for exemplary damages claimed to have been sustained 'On account of the wrongful levy of an attachment order in an action for debt. The Jones Leather Company, the plaintiff in error, was a wholesale dealer located at Kansas City, Mo.; J. L. Woody, the defendant in error, was a retail dealer located at Oklahoma City. In April, 1911, Woody was indebted to the. Jones. Leather Company upon an open- account for merchandise then past due. The president of the Jones Leather Company, who was also one of its traveling salesmen, on a regular trip to Oklahoma City, in April, 1911, called upon Woody and sold him a small bill of goods, *185 and then presented the past-due account and .demanded payment. Woody could not pay all t of the account, hut 'arranged a settlement with Jones by which he made a small payment in cash and gave checks on his .bank with advance dating for the balance. When this settlement was reported to the house at Kansas City it was repudiated, .and another Mr. Jones, vice president of .the company, made a special trip to Oklahoma City for the purpose of collecting the amount due on the Woody accottnt. After arriving here he consulted his lawyer, and after laying all the facts before him he advised that grounds for an attachment •existed. Suit was filed on the 'account, and an affidavit, and bond for attachment were filed, and the attachment order issued, and levied upon. Woody’s stock of goods. A motion to dissolve the attachment was presented, and after evidence taken thereon was sustained, and the goods ordered returned to Woody. From this order an appeal was prosecuted to the Supreme Court, and the order was affirmed. Jones Leather Co. v. Woody, 37 Okla. 371, 133 Pac. 201. Wben this action was commenced the petition contained two counts,‘one charging a cause of .action for actual damages, and the other alleging a cause of action for exemplary damages. The defendant interposed a demurrer to the petition on the ground of a misjoinder of causes of action. This demurrer was sustained, and by order of court the action was continued on the first cause of action set out in the petition, and the petition was refiled as another suit on the second count, that being the count claiming exemplary damages. When called for trial the two counts or causes of action were consolidated and tried as one cause. Separate judgments were rendered in each on the separate verdicts returned for the plaintiff. An appeal was prosecuted to this court from such judgments, and after proceedings in error were perfected the judgment rendered in the cause for actual damages was settled, and that cause dismissed. Thus the appeal from the judgment reudefed in the action for exemplary damages remained for consideration. " .. rl "Objection is here made that the judgment in this cause cannot be sustained because it is for exemplary damages only, and thát “where no actual damage has. been suffered no. exemplary damages can be recovered.” The case-made.shows that actual damages were sustained in this transaction, and that the same jury that returned a verdict in this case also returned a verdict in the action for actual damages, and that these were rendered at the same trial and. on the same day, and that the judgment for actual damages has been paid and that cause has been dismissed. In any event, whatever error, if any, may have been committed by the trial court in requiring a severance of the two causes of action was induced by the plaintiff in error, and - it cannot now take advantage of such. This contention is therefore wholly without merit; It is again argued in the brief that the court in its instructions to the jury failed to state the law fully and correctly. The record, however, fails to show that any exceptions were taken to the. instructions when given, and therefore they are not brought up for review, except in one instance. At the close of the testimony the Jones Company requested the court to instruct the jury to return á verdict for it. This was denied and exception saved. This ruling is assigned as error, and the same question is presented by the assignment to the order overruling the demurrer to plaintiff’s evidence. The questions raised by these assignments are that the evidence fails to show malice in making the attachment affidavit and the absence of probable cause for instituting the attachment proceeding, and that the burden was upon the plaintiff to ¿how the presence of these elements in order to maintain this action. The defendant in error apparently relied upon the proof that the attachment upon the hearing was adjudged to have been wrongfully issued, and was dissolved, and that this judgment had been affirmed on appeal to the Supreme Court. This evidence was not sufficient to show malice in making the'attachment affidavit, or the want of probable cause for instituting the attachment proceedings. Lindsey v. Couch, 22 Okla. 4, 98 Pac. 973, 18 Ann. Cas. 60; El Reno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 Pac. 397; Central Light & Fuel Co. et al. v. Tyron, 42 Okla. 86, 140 Pac. 1151; Sims v. Jay, 53 Okla. 183, 155 Pac. 615. Exemplary damages, such as were sought in this -action, are imposed by the law. on the theory of punishment of the 'Offender for the general benefit of society, and as a restraint to the transgressor, and are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action. Rhyne v. Turley, 37 Okla. 150, 131 Pac. 695. The court, in the opinion in -the case- last cited, after quoting section 2851, Rev.-Laws 1910,-authorizing exemplary damages where the defendant has been guilty of *186 “oppression, fraud, or malice, actual or presumed,” say: “This statute is substantially the common law. They have no relation to the question of compensation for loss sustained, but are permitted on t'be theory of punishment to the offender for the benefit of the community, as a restraint to the transgressor. Such damages are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action.” Citing a long list of cases. In Lindsey v. Couch, 22 Okla. 4, 98 Pac. 973, 18 Ann. Cas. 60, the court said: “In order to maintain this action it was incumbent on the plaintiff to prove want of probable cause; that is, that the prosecution of which he complains was not based upon such facts and circumstances, known to defendant at the time sufficient in themselves to lead him, as a reasonable and cautious man, to believe the plaintiff probably guilty of the crime charged, but was actuated by malice or some improper or sinister motive. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.” The evidence showed that Mr. Jones, who made the attachment affidavit, had no personal dealings or acquaintanceship with Mr. Woody, and that he did not know him by sight. The evidence also shows that Jones knew at the time of making the affidavit that the account against Woody was past due; that Woody some time before had traded $1,600 worth of his stock for unimproved real estate, had allowed his checks, given his creditors as payments on accounts, to go to protest, and that the reports of the commercial agency on Woody showed him to be slow and uncertain pay; that he was making arrangements to change his place of business; and that Jones believed that he was offering to sell not only his goods, but his work tools; that when Jones came to Oklahoma City for the purpose of collecting the account of his company against Woody, he went to see his counsel and advised with him about the proper method to pursue, and after laying all the facts before counsel he was advised that there was sufficient ground to justify an attachment; that in following this advice in good faith he made the attachment affidavit and caused the writ of attachment to issue and the goods to be seized. There is not a particle of evidence in the record that shows that he was actuated by malice in the proceeding, or by any other motive than a desire to realize upon the account, and .his relations with Cunningham in regard to getting the statement in writing from Woody to the effect that he would sell his business does not Show anything more than active diligence on the part of Jones to advise himself as to the intention and purpose of Woody, and the real cause of his failure to pay his account when due. So the evidence failed to £how malice, and also failed to show want of probable cause for instituting ihe attachment proceedings, and therefore it appears that the plaintiff failed to sustain the burden imposed upon him by law. and that the demurrer to the evidence should have been sustained, and the peremptory instruction should have Leen given. Another reason why the peremptory instruction Should have been given is this: The Jones Company defended this action upon the ground that it acted in good faith in bringing the attachment proceedings, and upon the advice of counsel, after having laid all the facts before him. The testimony is not controverted that when Jones came to Oklahoma City for the purpose bf collecting the account against Woody, he consulted counsel about the method to proceed in order to accomplish this result. It is contended on behalf of the defendant in error that the Jones Company is not relieved from liability, because it did not lay all the facts before its counsel; but it is not clear what facts were withheld from counsel, if any, and the record shows that Jones diligently endeavored, by inquiry from the commercial agencies, and otherwise, to ascertain foe true state of affairs. It was not necessary that he should consult Woody to find out if he intended to defraud the Jones Company. In Roby v. Smith et al., 40 Okla. 280, 138 Pac. 141, the rule is announced in the syllabus as follows: “In a civil action for damages for malicious prosecution, where the defendant relies upon advice of counsel as a defense, the disclosure to counsel required of him before acting upon such advice is not a disclosure of all the facts discoverable, but all the facts within his knowledge. If he knows facts enough, either personally or by credible information, which, when fairly and fully stated to reputable counsel for the purpose of obtaining legal guidance, result in advice which is honestly followed in commencing the criminal proceedings, that is sufficient.” Again, in Allison v. Bryan, 50 Okla. 677, 151 Pac. 610, the rule is announced in the third paragraph of the syllabus as follows: “In an action for malicious prosecution, the burden of proof is upon the plaintiff to prove want of probable cause, and where the uncontroverted evidence shows that the prosecutor laid all the material facts * * * before a competent attorney, and acted in *187 good faith, uijon tlie advice given, he is exonerated from all liability.” Under this rule of law there was no question for the jury in this ease. The evidence in this case Shows that Jones acted upon the advice of his counsel in instituting the attachment proceedings, after laying all the facts before him, and in good faith followed his advice 'in instituting the attachment. There is no proof of malice, and the evidence clearly shows, as we read it, that there was probable cause for instituting the attachment proceeding. It is also insisted that Jones’ statem''rts to counsel were untrue, in that 'he told his attorney that Woo.dy had sold a portion of his stock in bulk, without complying with the bulk sales law; whereas such sale by Woody took place prior to the time '■he last bill of goods was sold, and was therefore immaterial as to Jones Company, which facts Jones did not tell his counsel. Although U api><m'.’« that such bulk saie did ’take place prior to the last sale to Woody, it further appears that long prior thereto Woody owed a running account to the Jones Company, which was in part unpaid, and it does not appear that the sale in bulk did not take place after the commencement of this account It therefore follows that there is no legal or moral justification for penalizing the Jones Company for causing the attachment order to issue, and that the judgment should be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The former opinion filed herein is withdrawn. By the Court: It is so ordered.