Mobile Furniture Commission Co. v. Little

HARALSON, J. The portions of the evidence of the defendant, Prufrock, made the basis of exceptions from 1 to 5, inclusive, were manifestly wrong, and should not have been allowed to go to the jury. In the first and second, the defendant was allowed to testify to his belief of the existence of facts, and in the third, as to his secret, uncommunicated motives or feeling. — Stewart v. The State, 78 Ala. 439 ; McCormick v. Joseph, 77 Ala. 236 ; E. T. V. & G. R. Co. v. Davis, 91 Ala. 615. In the matters reserved in the 4th and 5th assignments, the witness was allowed therein, to state his reasons why he.thought he did not damage the plaintiff. He was arguing rather than testifying. — Burks v. Bragg, 89 Ala. 204. The 7th assignment is well taken. The belief of the defendant that garnishment was necessary to obtain satisfaction of his debt, and the indebtedness and insolvency of the plaintiff alone, are no answer to the claim of actual damages, for wrongfully suing the garnishment. — A. S. L. Co. v. Reed, 99 Ala. 20. ; Marx v. Leinkauf, 93 Ala. 461 ; Hays v. Anderson, 57 Ala. 375. To justify a garnishment in aid of a pending suit, as has been held by this court, two essential facts are necessary; 1st, that there is an existing indebtedness from the defendant; and, 2nd, that in the belief of the person praying the process against the supposed creditor, the garnishment ‘ ‘is necessary to obtain satisfaction of such claim,” and that, if either of these essential facts be wanting, the garnishment is wrongful, and the defendant is entitled to his action, and to a recovery commensurate with the injury he has actually sustained.— Pounds v. Hamner, 57 Ala. 342. It will be noticed, that it is not stated, that if these essentials do exist, the garnishment may not still be simply wrongful; for the party swearing it out, may have been wrong in his belief, and if so, he is responsible for the actual injury he did the creditor. As we said in the recent case of the Ala. State Land Co. v. Reed, 99 Ala. 20, “An honest belief, founded upon reasonable grounds, that the writ [407] was necessary, may furnish, a defense, against a recovery for a vexatious suing out of the writ, but is no answer to the claim of actual damage sustained by reason of a wrongful suing out of the writ of garnishment. The case of Pounds v Hamner, 57 Ala. 342, was not intended to assert a contrary rule.” The principiéis, that notwithstanding the existence of the honest belief of the necessity to sue the writ, and the existence of the debt, still, if in fact there was no necessity for suing it out in order to recover the debt, the suing was wrongful. A man is responsible for his belief however honestly entertained, if he makes it the basis of doing an injury to another. The 8th assignment, is properly taken. The charge, taken as given, in immediate connection with the 7th, just referred to, was misleading, in that it tends to make the impression, that the wi’ongfulness of the writ con-siste 1 alone in the absence of the two facts hypothesized. The parts of the general charge, the bases of exceptions from 10 to 15 inclusive, without more, like the eighth, were misleading and ei’roneous. There was no error in that part of the charge the - basis of the 9th assignment. The 16th assignment was properly taken. Vindictive damages are allowed to be imposed by way of punishment, are at the discretion of the jury, within reasonable limits. It was not incumbent on plaintiff, to furnish the data for them to ascertain with reasonable certainty, the amount of such damages. Such a requirement exacts too high a measure of proof. From what has been already said, charge N®. Ire-quested by plaintiff, will appear to be free from error, and the remaining charges requested by plaintiff, from 2 to 4. inclusive, were also correct instructions. Charge 1, given at the instance of defendant, was erroneous in withdrawing from the jury all consideration of vexatious damages, as set up in the second ■ count of the complaint, and the vice of charges 2 and 4given for defendant readily appear. Charge 11, under the facts of this case, except for the concluding sentence, seems, to be free from error. There is no. evidence tending to show any actual damage except from the loss of credit or destruction of business by reason of suing out the garnishment. But this concluding sentence was calculated to impress the jury, that plaintiff’s proof as to [408] damages resulting from loss of credit, was vague and uncertain, whereas, there was very explicit proof on that subject. Charges 12 and 13 seems to have no other infirmity, except being argumentative, for which we will not reverse. There was no error in giving charge No. 3 for defendant, — Calhoun v. Hannon, 87 Ala. 277 ; A. G. S. R. R. Co. v. Hill, 93 Ala. 526; O’Grady v. Julian, 34 Ala. 88. Durr v. Jackson, 59 Ala. 204 ; Flournoy v. Jackson, 70 Ala. 309. Charge No. 8 was also free from error, as were those numbered 16 and 17. For the errors pointed out, the judgment of the lower court is reversed and the cause remanded.