Klie v. Wellman

ALLEN, J. This is an action against a constable, defendant Wellman, and his codefendant, Stark Distillery Company, a corporation, at whose instance the constable acted, to recover damages, compensatory and punitive, for an alleged wrongful levy upon plaintiff’s property. There was a judgment against defendant. Stark Distillery Company alone, for $40.60 actual and $100 punitive damages, and the case is here upon its appeal. On December 16, 1911, one Risz, who owned and operated a saloon in the city of St. Louis, and who was indebted to defendant Stark Distillery Company, sold the saloon to plaintiff for $85 in cash, and plaintiff at once entered into possession thereof. Plaintiff testified that, at the time of the sale, there was no stock of goods on hand in the saloon, except some liquor less than a gallon in amount; that, aside from this, the property acquired consisted of certain saloon fixtures, glassware, etc.; and that during the following week plaintiff purchased from perhaps a dozen different [608] dealers a stock of liquors and cigars, costing in all about $500. One week after’ the purchase of the saloon by plaintiff, to-wit, December 23, 1911, two of constable Wellman’s deputies, accompanied by an attorney representing’ appellant corporation, came to the saloon for the purpose of levying upon the contents thereof, under a writ issued in an attachment proceeding in which this appellant was plaintiff and Risz defendant. Plaintiff was in charge of the place at the time. There is some conflict in the testimony as to just what took place between these parties and plaintiff when the former entered the saloon. However, there is little, if any, dispute as to the fact that when plaintiff learned that the deputy constables were there to levy upon the property to satisfy a debt of Risz to appellant, he informed them, in the presence of appellant’s representative, that he was the owner of the property, and displayed bills for the stock of goods which he had purchased and installed. However, in spite of plaintiff’s repeated protests, the officers-proceeded with the levy, took charge of the saloon, closed it and put a sign .upon the door to the effect that the property was in the hands of the constable. Plaintiff, thereupon, coerced by the levy, paid the amount of appellant’s claim against Risz, to-wit, $40.60, and the property was reléased. There can be no doubt that the evidence warranted a recovery by plaintiff against either or both of the defendants, as being cotrespassers jointly and severally liable in the premises. [See Kreher v. Mason, 25 Mo. App. 291; Gilbert and Miller v. Peck, 43 Mo. App. 577; Cooper v. Scyoc, 104 Mo. App. 414, 79 S. W. 751.] That plaintiff, in good faith, purchased the saloon fixtures and equipment from Risz one week prior to the levy, and purchased and installed the stock of saloon goods, is in nowise disputed. The contention is, however, that as to the property purchased from Risz there [609] was not such “open, notorious and unequivocal” change of possession as to satisfy the statute (Section 2887, Revised Statutes 1909) respecting fraudulent conveyances. [See Claflin v. Rosenberg, 42 Mo. 439; Bishop v. O’Connell, 56 Mo. 158; Wright v. McCormick, 67 Mo. 426; Rivercomb to use v. Duker, 74 Mo. App. 570.] This, of course, does not apply to the stock of goods purchased in the open market and installed by plaintiff, which constituted the great bulk of the property levied upon; and even as to the other property the facts shown were such as to make this question, at most, one for the jury. The evidence is that plaintiff immediately went into possession and so continued, and purchased goods from perhaps a dozen different business houses, telling those with whom he dealt and others that he had acquired the saloon; that whereas the stock in trade had become entirely exhausted, except for a negligible quantity of liquor, he laid in a large supply of goods of various kinds suitable to the business, evidently making it apparent to a casual observer that a marked change had come about in the management of the place. He was in actual, open and exclusive possession, asserting his ownership, when the officers insisted upon making the levy. There was no stock requiring an inventory. Plaintiff had not put up a sign, but the evidence is that the former owner had never used one. Under the circumstances it is altogether clear that the court could not have declared as a matter of law that the sale from Risz to plaintiff was fraudulent and void under the statute. [See Claflin v. Rosenberg, supra; Reynolds v. Beck, 108 Mo. App. 188, 83 S. W. 292.] In fact it was almost if not conclusively shown that there was an actual, open delivery of the property in question, with continued possession in the vendee under circumstances and accompanied by acts on the part of the vendee such as to afford a fair oppor [610] tunity for the community to observe or learn of the change of possession. [See Reynolds v. Beck, supra, 1. c. 198.] Defendants, in -proceeding with the levy, in spite of the evidence of plaintiff’s title, and over his protest, acted at their peril. Nor can it be successfully claimed that the payment of the $40.60 by plaintiff was voluntary on his part. Plaintiff was clearly coerced into making such payment in order to emancipate his property from the levy. The officers were proceeding to eject plaintiff and close the saloon, having placed a sign on the door to the effect that the place was in the hands of the constable. There can be no doubt that plaintiff acted under duress in making the payment; and his right to recover this by way of actual damages sustained is beyond question. Also there is an abundance of evidence in the case to support the verdict against this appellant for punitive damages. The trespass was willful, and in utter disregard of plaintiff’s rights. Under the facts found, it constituted the intentional doing of a wrongful act without legal justification or excuse, and malicious in law. Appellant not only caused the writ of attachment to be issued, but its representative was present and actively participated in having the levy made, and, according to plaintiff’s testimony, threatened a suit upon the constable’s bond if it were not done. Clearly the facts warranted the assessment of punitive damages against appellant. [See Bank v. Curtis & Son, 58 Mo. App. 349; Cooper v. Scyoc, supra; Seago v. Paul Jones Realty Co., 185 Mo. App. 292, 170 S. W. 372.] Some complaint is made of the instructions given for plaintiff, but we find no reversible error in them. The instructions as a whole, which are quite lengthy and need not be set out, fully and fairly submitted the issues to the .jury. One of plaintiff’s instructions omits to require a finding as to plaintiff’s ownership [611] and possession of tlie property bought from Risz; but, in any event, this was not prejudicial to appellant, since that instruction dealt solely with the question of the liability of the defendant constable. Appellant also complains of the refusal of an instruction requested by it. But the defenses relied upon were fully covered by the instructions given; and besides, the refused instruction was such as to perhaps mislead the jury into the belief that it was necessary for plaintiff to publish some formal notice to the world of the change of possession. It was not error to refuse it. The judgment should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.