Owens v. McManus

DORAN, J.

The judgment of which appellant complains was in the amount of $7,085.89 which included an award of $500 punitive damages for wrongful attachment. Appellant, a collection agency, as the assignee of a Mrs. Marion Winner, filed an action in municipal court and in connection therewith secured a writ of attachment, and caused a keeper to be placed in possession of respondent’s gasoline station. Respondent’s personal property on said premises was placed

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in storage by the marshal on October 25, 1948, and on November 3, 1948, was restored to respondent upon the posting of a cash bond. On January 12, 1949, the municipal court rendered judgment in favor of respondent and against the appellant.

It is appellant’s contention that the trial court erred in denying a motion for nonsuit; that the evidence failed to establish either malice or want of probable cause but showed that the action was instituted and the attachment levied by appellant in the regular course of business, upon the advice of an attorney. Appellant further argues that the trial court failed “to draw the distinction between an action for wrongful attachment against the sureties . . . , and an action for wrongful attachment maintained solely against the attachment plaintiff.”

The record discloses evidence that the original claim on which appellant collection agency, as assignee, instituted the municipal court action, consisted of two parts, one of $341 for the purchase of a piano on a conditional sale contract; the other of $50 for refinishing a piano. Appellant and the assignor “were to split fifty-fifty any money recovered on the claim, and the Appellant was to pay all of the Court costs involved.” Respondent testified that in September, 1948, a collection agency telephoned concerning the claim, that respondent denied owing the money or having the piano; that nothing more was heard about the matter until October 19, 1948, when two uniformed officers and a plain-clothes marshal took possession of the gas station under the writ of attachment.

The trial court found that appellant caused the attachment to issue maliciously and without probable cause; that as a result of the levy and removal of equipment, respondent found it “impossible ... to continue in the operation of said business,” and was “compelled to enter into a mutual cancellation of the lease”; further, that respondent had been earning a net profit of $600 per month, and that the cancelled lease had approximately seven years yet to run at the time of cancellation, all of which resulted in a loss to respondent of $6,585.89.