Brown v. Bridges , 70 Tex. 661 ( 1888 )

Collard, Judge.

The lower court in the tenth paragraph of the charge instructed the jury that if by the seizure and stopping of the wagon and team the plaintiff was seriously injured in his person, the jury would find * * actual damages, etc. This was error. There is no authority requiring that a personal injury inflicted in the commission of an unlawful act should be serious to entitle the injured party to damages. The extent of the injury is a question for the jury, to be considered by them in estimating the amount of damages to be accorded, but not in determining the right to recover in some amount. An injury might be so slight and trifling as to deserve no compensation of itself, but when it is the result of a trespass vi et armis, the jury should be left to assess the damages according to the attendant circumstances of aggravation or mitigation. Nominal damages would, at least, be recoverable. (2 Greenl. on Ev., sec. 270; Id., sec. 84; Champion v. Vincent, 20 Texas, 811.)

In this case the constable was making an illegal levy upon property exempt from forced sale; he was guilty of a trespass; was seizing a wagon and team that he had no right to take by authority of the writ. If by such seizure Mrs. Brown was injured, she would be entitled to recover damages commensurate with her injuries. If Smith was acting with the constable, directing or aiding him, he would also be liable, and if Rucker & Montgomery procured Smith to act for them in the attachment proceedings, and knowing the facts, of the seizure and the injury to Mrs. Brown, ratified the acts of the officer, they would be liable. (Gilleland v. Drake, 36 Texas, 677; Erwin v. Bowman, 51 Texas, 513.) Or if Rucker & Montgomery, or either of them, knowing the acts and conduct of the officer, ratified the same, they would be liable in consequential damages.

Opinion adopted May 8, 1888.

If the levy was oppressively made, and the conduct of the officer was malicious or oppressive in respect to Mrs. Brown, and Smith directed it, aided or encouraged it, and Mrs. Brown was thereby injured, both of them would be responsible in exemplary damages; and if Rucker & Montgomery, or either of them, knowing the facts and the injury, ratified the acts of the officer or of Smith, their liability would be the same as that of the officer. If Rucker & Montgomery, or either of them, accepted or derived any benefit under the levy or as a consequence of it, knowing the facts, or after they, or either of them, had been notified of the facts, they would be deemed to have ratified.

The court instructed the jury substantially that defendants would not be responsible for any damage to Mrs. Brown, not the natural and proximate result of the injury, and that such as resulted from her own want of care after the injury could not be considered in estimating damages. This charge was correct.

The questions and answers allowed by the court over plaintiff’s objections, tending to justify the suing out of the attachment, were improper. There was no issue as to the wrongful suing out of the writ. The issue was of an illegal levy upon exempt property, and injury to Mrs. Brown committed in the seizure. The exceptions to the questions and answers should have been sustained. Proof that Brown was giving cause to his creditors to attach his property, was no defense for levying the writ upon exempt property in such a way as to injure Mrs. Brown.

The cause should be reversed and remanded.

Reversed and remanded.