Lienkauf & Strauss v. Morris , 66 Ala. 406 ( 1880 )

SOMERVILLE, J.

This is an action of trespass brought by the appellee, Morris, against the appellants, who wqre the •obligors in a certain bond of indemnity, executed by them to the sheriff of Marengo county, conditioned to protect him in levying on a stock of goods and merchandise claimed as the property of the plaintiff The levy was made under a writ •of attachment against the goods of one Steiner, who, it was claimed, had made a fraudulent sale of the stock in question, to the plaintiff. Cole, as the agent of Lienkauf & Strauss, went with the sheriff to the store of Morris, and caused the sheriff to levy on the goods. Two of the appellants, Mayer and Newhouse, are not shown to have any further connection with the transaction, than as being sureties on the indemnity bond. The goods were sold by the sheriff, and are proved to have been worth about one thousand dollars. Under the charge of the court, the jury found a verdict for the plaintiff amounting to seventeen hundred and fifty dollars, in part by way of exemplary (or punitive) damages.

The most important question raised by the record is, the correctness of a charge given by the court, authorizing the jury to find such damages against the appellants. This charge is in the following language: “That, if the jury find that the goods belonged to the plaintiff, they may give, in-addition to the value of the goods and interest thereon, such amount as they may think proper, not to exceed the whole amount claimed, by way of exemplary damages, if they shall find that the trespass toas committed wantonly or recMessly.”

The proposition is not questioned, that the makers of an indemnity bond may, in a proper case, be held liable for compensatory damages, in an action of trespass, on the ground that they become joint or co-trespassers with the sheriff, in any illegal seizure made by him, under the process for the execution of which he is indemnified.—Screws v. Watson, 48 Ala. 628; Lovejoy v. Murray, 3 Wall. 1.

In Devaughn v. Heath, 37 Ala. 595, it was said by Stone, J., “ Trespasses might be so wantonly or recMessly committed, as to justify the imposition of vindictive damages, without any evidence of actual malice towards the owner of the property trespassed on,” In Parker v. Mise, 27 Ala. 480, the principle was stated to be, that exemplary damages might be assessed by the jury, in cases where the trespass was “accompanied with circumstances of aggravationand in Rhodes v. Roberts, 1 Stew. 145, it was heid, that such damages were recoverable, in cases where negligence was “very gross and reprehensible.” In no case, however, as we think, can exemplary or punitive damages be recovered, on any thing less than gross negligence within the strictest signification of the phrase; which must be construed to mean “such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of his carelessness, and is indifferent, or worse, to the danger of injury to the persons or property of others.” — Shearman & Bed. on Negl. § 600. In some cases it has been held, contrary, we think, to the weight of authority, that the negligence must be of such, a character as to evince a wanton disregard of human life and safety, equivalent to malice.—Pickett v. Crook, 20 Wisc. 377; Wardrobe v. Stage Co., 7 Cal. 118.

In Quigley's Case, 21 How. (U. S.) 213, it was said by the Supreme Court of the United States, Campbell, J., as follows : “Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.” This case is cited, and the principle approved, by the Supreme Court of Maryland, in Railroad Co. v. Larkin (47 Md. 155), 28 Amer. Rep. 442, 443. Day v. Woodworth, 13 How. (U. S.) 363, states the rule to be, that smart money is allowable in actions of trespass, “where the injury has been wanton and malicious, or gross and outrageous; and in Jackson v. Schmidt, 14 La. Ann. 806, the Supreme .Court of Louisiana declared, that such a measure of damages could not prevail where the wrong results from an error of judgment only.

In Sedgwick on Damages, mar. p. 455, it is said, that the jury are not bound to adhere to the strict line of compensation, “where fraud, malice, or oppression appears.” We deduce from the authorities the doctrine to be, that exemplary damages are allowable, not only for acts maliciously perpetrated, but also in cases where one knowingly, wantonly and recklessly does an act fraught with probable injury to person or property, and ultimately producing such injury or damage. 2 Wait’s Act. & Def. 448, § 7; Taylor v. Railway Co., 2 Amer. Rep. 229; Kountz v. Brown, 16 B. Monr. 577; Wallace v. Mayor, 2 Hill, 440; Shear. & Redf. onNeg. § 600. Such a spirit must be considered as at war with that good faith which ever preserves a. just regard for the lawful rights of others. In Tracy v. Swartwout, 10 Pet. 81, which was an action of trover brought for goods illegally seized by the collector of New York, under instructions from the Secretary of the Navy, it was held by the United States Supreme Court, that the defendant was not liable to exemplary damages, but only compensatory damages, because he was a ministerial officer, and acted in good faith. — Sedgwick on Dam., p. [506].

These principles apply to the immediate actors who made the levy — the sheriff and Cole — who are not sued in this action, and to all others who may be proved to have acted in concert with, or participated in their acts. The levy of the process, it is true, was authorized by. the appellants, when they signed the bond of indemnity; and, to a certain extent, all of them may be considered as principals in the trespass, if such it be. But the evidence does not disclose any authority from appellants to execute the writ wantonly, recklessly, or with circumstances of oppression or aggravation. Unless such authority can be implied, or the unlawful acts were ratified, or were probably consequent on the making of such levy, as against them, under the circumstances, compensatory and not exemplary damages would, be the measure of recovery. — Law of Damages (Field), §§ 86-88; Rounds v. R. R. Co., 21 Amer. Rep. 597.

How far a principal is liable in exemplary damages for the acts of his agent, is a question about which there is the utmost contrariety, and not a little confusion of authority. This results, we think, to some extent, from a' failure to classify the cases, many of which have been decided upon principles of public policy. The rule has gradually grown more stringent as against common carriers, and especially railroad companies, on the ground that public policy, and the safety of the travelling public, require that they should not only exercise the highest degree of care in the conduct of their affairs, but should even “guarantee that none of their servants should commit crimes.” — Field’s Law Dam. § 87, note (2); Bigelow’s Lead. Cases on Torts, 35. Some of these cases have carried the rule to an unreasonable extent, not justified by principle, nor required by necessity.—Craker v. R. R. Co. (36 Wis. 657), 17 Amer. R. 504; Goddard v. R. R. Co. (57 Mo. 202), 2 Amer. R. 39.

_ The following language is used in Field’s Law of Damages, on this subject: “To hold the principal, in such cases, for exemplary damages, is against the general principles of the law of exemplary damages, and violates the sense of justice.” “Many of the decisions,” he adds, “are not clear as to the basis of the opinions that seem to support the doctrine of liability of the principal to exemplary damages in such cases. Of course, if the principal has employed incompetent agents, of has knowledge of their incompetency, or knowingly permits such negligence in them, it would make him a party thereto; or, if he indorses such acts of negligence in the agent, he might properly be held liable in case of injury therefrom, for exemplary damages.” — § 87- It is added, in Bigelow’s Lead. Oases on Torts, p. 35, that “the negligence or misconduct of an agent, for which the cases hold the principal liable, probably never involves any deep moral turpitude. If the conduct of the agent were of such a character, the principal would not be held liable.”

The case of “ The Amiable Nancy,” 3 Wheat. 446, illustrates the principle in question, being an action of trespass against the owners of a privateer, for an illegal and wanton seizure made by the officers and agents in charge. Mr. Justice Story held them liable only for actual, and not punitive damages, using the following language : “This is a case of gross and wanton outrage. The honor of the country, and the duty of the court, equally require that a just compensation should be made to unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong-doers, it might be. proper to go yet farther, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer; they are innocent of the demerit of the transaction. Under such circumstances, we are of opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages.”

In the case at bar, there is no evidence showing that the appellants, Mayer and Newhouse, acted with any want of good faith, or otherwise than in the honest belief that plaintiffs in attachment were seeking a redress of lawful rights by lawful means. This consideration is of the highest import as affecting the question of exemplary damages. The agent selected was an officer of the law, who would presumptively do his duty only, without oppression, aggravation, or excess of authority. How far the participation of Cole in the acts of the sheriff would bind Lienkauf & Strauss, for anything more than compensatory damages, depends upon the extent of his authority; and this would be a matter for the determination of the jury, uninfluenced by prejudice or passion, under the principles of law above enumerated.—Sterrett v. Kaster, 37 Ala. 366; Sedgwick on Dam., pp. 506, [528-9]; Rose v. Story, 1 Barr, Penn. St. 191.

The court erred in giving the charge under consideration ; and for this the judgment of the Circuit Court must be reversed.

The rule stated by the court, as to the proper measure of damages, was correct, as given in the first charge. If the jury found for the plaintiff, the least amount of their verdict must have been the value of the goods seized, which were to be estimated at the time of the trespass; and upon this interest should be calculated, to the date of the judgment. It was not permissible to reduce or mitigate these damages, by deducting the expenses of the wrong-doer incurred in selling the goods, or otherwise in perpetrating the tort complained of. — Sedgw. on Damages (6th Ed.), 658; 28 Me. 272; 6 Watts & Serg. 323.

The insolvency of Steiner did not affect the validity of the, sale, nor did the fact that the goods were sold on credit. He had a right to make such sale, at a fair and reasonable price; and it would not be fraudulent, unless there was an intent on his part to hinder, delay, or defraud his creditors, and this intent was participated in by the vendee, Morris. The second charge given by the court, as tested by this principle, was correct.—Crawford v. Kirksey, 55 Ala. 282; Young v. Dumas, 39 Ala. 60; Bump on Fraud. Conv. 234-5.

There was no error in excluding the testimony of the witness who proposed to prove that attachments had been levied upon other goods of Steiner which were claimed by a party in Selma. This evidence was irrelevant to the issue submitted to the jury.

The judgment of the Circuit Court is reversed, and the cause remanded.