Parkleton v. Pugsley , 107 Mo. App. 675 ( 1904 )

DISSENTING OPINION.

BLAND, P. J.

I dissent from the majority opinion and express my individual views in the following, statement and opinion:

Omitting caption the petition is as follows:

“Now comes William Parkelton, the above-named .plaintiff, leave of court having first been obtained, and files this his first amended petition, and for his cause of action states as follows, to-wit:

“That at the county of Stoddard and State of Missouri, about August, 1901, the defendant wrongfully, unlawfully, forcibly, wantonly and maliciously, without the consent and against the will of the plaintiff, took into his possession and converted to his own use, the described personal property and effects, which was all that plaintiff then owned, to-witEight horses, three log wagons, six milch cows, and four head of neat cattle of the reasonable market value in the aggregate of twelve hundred dollars; that plaintiff was then and there a householder and the head of a family and then and there resided with his said family in the county of Stoddard and State of Missouri, and was then and there entitled to hold exempt from the demands of his creditors on execution and attachment, three hundred dollars worth of said personal property, and then and there informed the defendant of his rights to said exemptions and requested the defendant to set apart and leave for him' three hundred dollars worth of said personal property to satisfy his said exemptions.

“Premises considered, plaintiff prays judgment as follows, to-wit: For his actual damages, the sum of twelve hundred dollars, for Ms punitive damages the sum of three thousand dollars.”

Though inartificially drawn, inferentially the petition shows that plaintiff seeks to recover three hundred dollars, the value of his exemption rights in personal property alleged to have been wrongfully seized, levied upon and sold on execution, and exemplary damages for the willful and malicious wrong by defendant in denying him his legal rights in the property. The evidence is that defendant recovered judgment against plaintiff, before a justice of the peace, for about one hundred and eighty dollars, upon which an execution was issued and delivered to the constable, who, by direction of the defendant, levied upon all the property described in the petition. This property was under mortgages given by plaintiff for about two hundred and fifty dollars. These mortgages the defendant paid to the holders in order to enable the constable to sell on the execution. The property was all sold by the constable on the execution and brought at the sale nine dollars over and above the mortgages and the defendant’s judgment and costs, which excess of nine dollars the constable testified, he applied on another execution in his hands against defendant for a labor debt. The evidence shows that the plaintiff was the head of a family, and! tends to show that the property levied upon and sold was of the value of about eight hundred dollars and comprised all the personal property owned by him, except some household goods of inconsiderable value. The constable at no time apprised plaintiff of his exemption rights, but the plaintiff, before the sale, made claim to the constable of his right of exemption and demanded that three hundred dollars worth of the property levied upon be set off to him as exempt. His claim was ignored.

Complaint is made of the following instruction given for the plaintiff:

“The court instructs the jury that if you believe and find from the testimony in this cause that at the time the constable took the property mentioned in plaintiff’s petition from plaintiff and that the defendant was present advising, assisting, abetting and commanding the constable to take the property mentioned in plaintiff’s petition from the plaintiff — if you find that the constable did take the property — and the plaintiff was the head of a family at that time, you will find for the plaintiff and assess his actual- damages not to exceed three hundred dollars; and assess his punitive damages at such sum as yon may believe from the evidence will be sufficient to punish him for his wrong and deter others from like conduct in the future. ’ ’

The grounds of complaint are, first, that the instruction did not require the jury to find that the property was such as plaintiff could have claimed as exempt from execution, and'second, that it was all'the property plaintiff had from which he could take his exemptions, third, that the plaintiff demanded of the constable or of defendant at any time that his exemptions be set off to him. The instruction is open to the first and second grounds of criticism, but not to the third, for it was the duty of the constable to apprise the plaintiff of his exemption rights and to set off to him property of the value of three hundred dollars as exempt from execution to be selected by the plaintiff. The instruction is open to the first and second grounds of criticism, but we do not think the error was prejudicial for the reason that the evidence is all one way that the property taken comprised all the personal property of which the plaintiff was possessed, except his household goods. Defendant did undertake to show that plaintiff owned at the time, the timber on four sections of land in Stoddard county, worth from twenty-five hundred- to three thousand dollars, but utterly failed to show that plaintiff owned any such right.

The evidence is all one way that the constable and the defendant, in ntter disregard of the exemption rights of the plaintiff, seized, levied upon and sold his property, three hundred dollars worth of which he was entitled by law to have set off to him as exempt from seizure and sale under execution. Their proceedings were high-handed and without the semblance of right, and the jury might have very properly assessed smart money in addition to the actual damages. The judgment is eminently just and clearly for the right party and I think should be affirmed.