Lee v. Dunbar

RICHARDSON, Chief Judge.

Appellant sued for damages for the alleged unlawful seizure of his motor dump truck on a writ of fieri facias. The writ issued in a former suit between the parties to enforce the payment of a money judgment obtained therein against appellant, which was then unsatisfied. The truck was detained by the United States Marshal for five days. Its return was then ordered by the court, which decided that it was exempt from seizure and sale under our statute. Code 1940, § 15 — 401.

The complaint was in two counts. One charged that the seizure was wrongful and willful; the other that it was willful and malicious. Assuming that this sufficiently charged that defendant had acted maliciously and without probable cause, no pertinent evidence was offered to prove either malice or lack of probable cause, unless we so interpret the statement that, at the time of the levy, appellant’s counsel notified appellees’ counsel and the deputy marshal that appellant claimed the truck was exempt.

The trial court, in entering judgment for appellees, held that the prior judgment for return of the truck was not res judica-ta, and decided:

“The question of exemption with respect to automobiles has never been passed upon in this jurisdiction, no specific exemption being set out in the D.C.Code, consequently, I believe there was no abuse of legal process or wrongful attachment.”

We hold that a plaintiff, to recover compensatory or punitive damages, in an action against the attaching creditor in such a case, must show malice and want of probable cause.

In Perez v. Fernandez, 202 U.S. 80, 26 S.Ct. 561, 565, 50 L.Ed. 942, a suit for damages for the unlawful levy of an attachment, Mr. Justice Day, delivering the majority opinion, said that at common law, the action “is substantially one for malicious prosecution, and can be maintained only upon proof of malice and want of probable cause.”

While the rule so stated has not been recognized in a few jurisdictions in actions for compensatory damages,¹ it is supported by the overwhelming majority of courts and text writers.²

It was followed in Moses & Sons v. Lockwood, 54 App.D.C. 115, 295 F. 936, 33 A.L.R. 1467, although there, as here, the pleader had charged malice and want of probable cause, and this was apparently a controlling factor in the decision.

In some cases courts have made a technical distinction between the wrongful suing out of an attachment and the wrongful levy of an execution, holding that malice, rather than lack of reasonable cause, is the essential issue in the latter. The question is discussed in the title “Abuse of Process”, Sections 8 and 15, Vol. 1, Am. Jur. We think it is fully answered in cases cited in the preceding footnote. Nor does the question involved here extend to actions of trespass against the levying officer for an excess of authority, or to a statutory liability imposed as a condition of resort to the particular remedy, as in attachment cases where a bond for the payment of actual damages is required.

The real issues here were (1) whether the evidence showed malice, and (2) whether appellee had probable cause to levy execution on the truck, although notified that appellant claimed that it was exempt. That the court had quashed the levy, deciding that the truck was exempt, was not res judicata of the existence of malice or want of probable cause, nor was it competent evidence for the plaintiff on these issues. Stewart v. Sonneborn, supra, note 2.

Where the facts are not disputed, “what will amount to * * * probable cause in any case is a question of law for the court.” Mark v. Rich, 43 App.D.C. 182.³ It may result from a reasonable belief in facts which prove to be unfounded, or from an interpretation of statute which, although rejected, was not unreasonable.⁴ Here the facts were undisputed. The question is whether appellee was warranted in construing the exemption statute as inapplicable to a motor dump truck. The statute exempts “tools and implements of the debtor’s trade or business.” ⁵ It exempts “one horse, mule, or yoke of oxen; one cart, wagon, or dray, and harness for such team.”⁶ Whether this language comprehends a motor vehicle has not been authoritatively decided by our courts; like outmoded provisions have been the subject of conflicting decisions by the highest courts of many states.⁷ There is substantial authority for the view, that motor vehicles are not exempt, and the only federal case we have discovered in which the question was decided in the absence of local decision to be followed, In re McEuen, supra, note 7, denied the claim of exemption.

The question whether a motor vehicle is an “implement” or a “cart, wagon, or dray” under our existing law would be more advantageously settled, with other antiquated provisions of our statute, by the adoption of a modern exemption law.⁸ We are not called upon to decide it now. We need merely determine whether there was lack of probable cause, or malice implied from lack of probable cause, since no express malice was shown, in levying upon appellant’s truck. In view of the state of the law, and the fact, that appellee’s interpretation, if incorrect, was not unreasonable, it is obvious that probable cause existed.

In any event, on the evidence before us, nominal damages only could be allowed and the failure to award such damages under the circumstances here present is not a ground for reversal.⁹ Without proof of malice the claims for punitive damages¹⁰ and for mental suffering and humiliation¹¹ were not maintainable. The only evidence of actual damage was the loss of use of the truck in appellant’s business during the five-day period. The judgment had remained unpaid for more than thirty days, it had been so certified to the Commissioners of the District of Columbia, and appellant’s operator’s permit and the registration certificate of the truck had been suspended.¹² Operation of the truck by appellant or by any other person during the five-day period would have constituted a criminal offense.¹³ Under these circumstances recovery would be limited to nominal damages, if any.¹⁴

Affirmed.

1 Talbott v. Great Western Plaster Co., 151 Mo.App. 538, 132 S.W. 15; Id., 167 Mo.App. 542, 152 S.W. 377; McLaughlin v. Davis, 14 Kan. 168.

2 “It will certainly be an evil day when any person, who, honestly supposing himself, under the facts as he understands them, to be entitled to a remedy provided by law, shall, though acting in good faith in pursuing such remedy, lay himself open to a liability other than that which express statute may impose upon him as the price of availing himself of such remedy”. Slaughter v. Nolan, 41 S.D. 134, 169 N.W. 232.

See also Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; Jerman v. Stewart, Gwynne & Co., C.C.W.D.Tenn., 12 F. 266; Wm. R. Moore Dry Goods Co. v. Mann, 171 Ark. 350, 284 S.W. 42; Nix v. Goodhile, 95 Iowa 282, 63 N.W. 701, 58 Am.St.Rep. 434; Bartlett v. Christhilf, 69 Md. 219, 14 A. 518; Malone v. Belcher, 216 Mass. 209, 103 N.E. 637, 49 L.R.A.,N.S., 753, Ann.Cas.1915A, 830; Tyler v. Mahoney, 166 N.C. 509, 82 S.E. 870; Glidewell v. Murray-Lacy & Co., 124 Va. 563, 98 S.E. 665, 4 A.L.R. 225.

3 Stewart v. Sonneborn, supra; Chapman v. Anderson, 55 App.D.C. 165, 3 E. 2d 336; Remington Typewriter Co. v. Nolan, 3 Cir., 250 F. 685; Buchanan v. Iowa State Live Stock Insurance Co., 108 Kan. 520, 196 P. 249.

4 In Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735, 737, 10 L.R.A.,N.S., 1133, 12 Ann.Cas. 38, the court said:

“A well-founded doubt as to the law may constitute probable cause which would justify a prosecution the same as doubt concerning the facts, if such doubt induces in the mind an honest belief that there are legal grounds for the prosecution.”

5 Code 1940, 15 — 401(5).

6 Code 1940, 15 — 401(7).

7 In the following cases motor vehicles were held not exempt within the meaning of the statutory language indicated:

“Cart, wagon or dray”—In re McEuen, D.C., 19 E.Supp. 924; In re Wilder, D.C., 221 E. 476; Whitney v. Welnitz, 153 Minn. 162, 190 N.W. 57, 28 A.L.R. 68; Crown Laundry & Cleaning Co. v. Cameron, 39 Cal.App. 617, 179 P. 525.

“Two horses or mules, one ox cart, a wagon, and harness”—Prater v. Reichman, 135 Tenn. 485, 187 S.W. 305.

“Tool or implement”—Eastern Mfg. Co. v. Thomas, 82 S.C. 509, 64 S.E. 401.

“Tool or apparatus”.—First State Bank v. Pulliam, 112 Okl. 22, 239 P. 595.

In- the following cases a contrary conclusion was reached;

“Wagon, cart or dray”—Foster v. Foster, 144 Kan. 528, 61 P.2d 1350.

“Tool or implement”—Dowd v. Heuson, 122 Kan. 278, 252 P. 260, 52 A.L.R. 823.

“Implement”—Pellish Bros. v. Cooper, 47 Wyo. 480, 38 P.2d 607.

See also Berry on Automobiles, 7th Ed., Sec. 2.33; Huddy on Automobiles, Sec. 8-13.

8 Kresge Department Stores, Inc., v. Bostic, 1940, 69 W.L.R. 101.

9 Smith v. Parker, 148 Ind. 127, 45 N. E. 770; New York, Chicago & St. Louis R. Co. v. Rhodes, 171 Ind. 521, 86 N.E. 840, 24 L.R.A.,N.S., 1225; Singer Mfg. Co. v. Potts, 59 Minn. 240, 61 N.W. 23; Mortimer v. Otto, 206 N.Y. 89, 99 N.E. 189, Ann.Cas.1914A, 1121; Hewson v. Peterman Mfg. Co., 76 Wash. 600, 136 P. 1158, 51 L.R.A.,N.S., 398, Ann.Cas.1915D, 346; Checkley v. Illinois Cent. R. Co., 257 Ill. 491, 100 N.E. 942, 44 L.R.A.,N.S., 1127, Ann.Cas.l914A, 1202.

10 Ballard v. Spruill, 64 App.D.C. 60, 74 F.2d 464 ; 5 Am.Jur. “Attachment” Sec. 1006, p. 206; Annotation, 125 A.L.R. 1225; Annotation, 29 L.R.A.,N.S., 277.

11 B. F. Goodrich Co. v. Hughes, 239 Ala. 373, 194 So. 842; Michels v. Crouch, Tex.Civ.App., 122 S.W.2d 211; Chappell v. Ellis, 123 N.C. 259, 31 S.E. 709, 68 Am. St.Rep. 822; Crawford v. Doggett, 82 Tex. 139, 17 S.W. 929, 27 Am.St.Rep. 859; Richmond v. Wright, 151 Va. 964, 145 S.E. 732; Morris v. Williford, Tex. Civ.App., 70 S.W. 228; 15 Am.Jur., “Damages”, Sec. 181.

12 Code 1940, 40-403, 40-408.

13 Code 1940, 40 — 206, 40 — 302(d).

14 Auger & Simon Silk Dyeing Co. v. East Jersey Water Co., 88 N.J.L. 273, 96 A. 60, L.R.A. 1917E, 1146; Sherman v. Fall River Iron Works Co., 6 Allen, Mass., 213; Kane v. Johnston, 22 N.Y. Super.Ct. 154, 9 Bosw. 154; Chicago W. D. R. Co. v. Lambert, 119 Ill. 255, 10 N. E. 219; Kauffman v. Babcock, 67 Tex. 241, 2 S.W. 878; Young v. Stevenson, 75 Ark. 181, 86 S.W. 1000.