Nagle v. Mullison

Exemplary damages may be given in trespass, whenever there has been oppression, outrage, or vindictiveness on the part of the trespasser. And if there be sucb evidence, the jury, and not the court, are to determine whether it is a proper case for exemplary damages. In the absence of proof of aggravation, compensation is the proper measure of damages. In an action againstaconstable for levying on and selling the plaintiff’s goods, under an execution against a third person, it is no defence, as to the unlawful seizure and detention, that the plaintiff subsequently recovered the goods in replevin against the purchaser at the constable’s sale.

Error to the-Common Pleas of Lancaster county. This was an action on the case by James Mullison, the keeper of a livery stable, against Christopher E. Nagle, a constable, for levying on and selling a horse belonging to the plaintiff, under an execution against Dr. Smith Armor. The facts of the ease are fully stated in the following charge to the jury in the court below, delivered by Long, P. J.:— “ According to the evidence which has been given in this case, it appears, that about the 5th of July 1856, Doctor Smith Armor hired a horse from the plaintiff, Mullison, who resided in Columbia, to go to Marietta, to attend to his professional calling; when he reached there, he hitched the horse at the Cross Key Tavern, and proceeded to visit his patients; during his absence, the horse was taken possession of by defendant (his ground for doing so, was an execution, which had been issued on a judgment obtained by Samuel Hippie against Smith Armor, before John Auxer, Esq.), and in pursuance of the execution, the horse was not only levied upon, but sold to Mr. Lewis Martin, for the sum of $55. After Martin had made the purchase, a replevin was taken out by Mullison, and the horse delivered by the sheriff to Mullison; and the only question now for your consideration is, what ought to be the damages which you ought to award to the plaintiff? He has obtained his horse, and of course you cannot properly allow him damages on that account. Now what ought to he the measure of damages by which you should ascertain the damages which the plaintiff has sustained in this ease ? In somewhat analogous cases, it has been held, that when a sheriff or constable acts in good faith and honestly in levying and selling, by mistake, the property of a stranger, nothing more ought to be allowed than compensatory damages ; which means interest upon the property taken while in possession of the wrongdoer. But if the acts of the defendant were wanton or oppressive, or a malicious invasion of the rights of the plaintiff then you would be justified in allowing exemplary damages. If Hippie, or Nagle, had reasonable grounds to believe that Mullison was the owner of the property which was levied upon, and if, after being satisfied of this fact, the defendant still persisted in holding the property, and selling the same, then this would be a fact, from which an oppressive intention on his part might be inferred. If the constable had no satisfactory evidence of who was the owner of the property, and he found it in the possession of the defendant in the execution, he would not be liable to exemplary damages, if he proceeded to levy upon and sell the property; unless in the mean time he had such evidence or facts brought to his notice, which ought to satisfy a reasonable man that Mullison was the owner of the horse. If he was satisfied before he sold the horse, that the horse belonged to Mullison, this would be an oppressive act, which would justify you in allowing exemplary damages. It will be your province to determine from the testimony, whether the horse was wantonly or maliciously levied upon and sold, or whether he acted in good faith, in the honest and fair discharge of his duty. If so, he ought only to be allowed compensatory damages.” To this charge the defendant excepted. The jury found the following special verdict:— In the above ease, the following facts are found to be disclosed by the evidence: That on the 5th of July 1856, the plaintiff was the owner of a dun horse, which, on that day, was hired to Dr. Smith Armor, and was in his possession; and being so in possession of Armor, was levied upon on an execution issued by Samuel Hippie, on judgment obtained before Squire Auxer, in Marietta, and sold on the 17th of the same month to Lewis Martin. Against Lewis Martin a suit in replevin (August Term 1856, No. 190), was brought, on the day he obtained possession (the 17th of July), and the horse was delivered to Mullison and remained in his possession. In the replevin suit, judgment by default was obtained against Martin, and that judgment remains at present in full force and virtue. That they are ignorant, in point of law, on which side they ought, upon these facts, to find the issue. That, if upon the whole matter, the court shall be of opinion, that the issue is proved for the plaintiff, they find for the plaintiff accordingly and assess the damages at fifty dollars (|50), exemplary damages— but if the court are of an opposite opinion, then they find for defendant. The court below entered judgment for the plaintiff on the special verdict, the following opinion being delivered by Long, P. J.:— “ According to the facts set forth in the special verdict rendered in this case, it appears, that the plaintiff, being the owner of a horse, hired the same to Doctor Smith Armor; that while in his possession, it was levied upon, and taken possession of by defendant, as constable, by virtue of an execution issued upon a judgment obtained by Samuel Hippie, before Squire Auxer. The horse was afterwards sold by the constable, and Levi Martin became the purchaser. The plaintiff then issued a writ of replevin out of this court to August Term 1856, No. 190, against the purchaser. Upon this writ, the property was delivered over to the plaintiff, and on the 8d of September 1856, judgment entered against the defendant by default. The question now arises, is the action of replevin and judgment thereon a bar to the plaintiff’s recovery in this suit ? If that action afforded a remedy to the plaintiff (whether he availed himself of it or not) by which he might have obtained satisfaction for the injury complained of in this suit, then I am of the opinion this action cannot be maintained. But it appears to me, that the subject-matters in dispute in the two actions were not only different, but under no circumstances could the plaintiff have recovered in the replevin case, satisfaction for the cause of action complained of here. The replevin was rather a proceeding in rem. It is true, damages may be recovered, but they could only be for a detention of the horse by him, which was for a very short time, and not for the taking, which is the gist of the action. If the horse had been voluntarily surrendered by defendant to the plaintiff, that would not have defeated this action; it would only have gone in mitigation of damages. That the same object accomplished by operation of law, should produce a different result, appears to me inexplicable. Suppose the defendant had taken two or three horses instead of one, and made sale of all to different persons, the plaintiff would have had a right to issue a replevin against each purchaser, and a judgment in one action would scarcely be pretended to be a bar to a recovery in the other suits. It is true, if the plaintiff had brought a suit for trespass or trover against the defendant it would have stood as a bar against any action against his vendee, because the action was capable of embracing the matter which constituted the cause of action against the defendant’s vendees. But under no circumstances was this the case with the action of replevin, upon which the defendant relies as a bar; all that could be recovered, was the property, or the value thereof, and damages for the detention, which would not reach the cause of action complained of here. The numerous authorities referred to by the counsel for the defendant, on the argument, in our opinion, do not, in principle, reach the case, nor in our opinion have the exceptions to the damages been sustained. Judgment is therefore directed to be entered for the plaintiff on the special verdict for $50.” The defendant thereupon removed the cause to this court, and here assigned for error: 1. That the court erred in submitting to the jury, as a question of fact, whether the plaintiff was entitled to recover vindictive or compensatory damages. 2. In deciding that the plaintiff was not concluded by the previous recovery in replevin.