Osborne v. Mossler Acceptance Co. , 214 La. 503 ( 1948 )

I concur in the ruling which reduces the interest recoverable on the reconventional demand to 8% but I am in utter disagreement with the other conclusions of the majority.

The principal question presented in this case is whether a plaintiff, whose property has been seized under an admittedly illegal writ of executory process, may recover damages for the mental anguish, humiliation and inconvenience suffered by him as a consequence of the unlawful act.

The Court of Appeal approved plaintiff's recovery for attorney's fees and monetary losses resulting from the illegal seizure of the house trailer but, paradoxically, refused to allow redress for the vexation, humiliation and embarrassment sustained by him. The reason given by the Court for the denial was that such damages will not be allowed where plaintiff is the defendant's debtor and defendant has proceeded (though illegally) in good faith. See 31 So.2d 452, 455. The writ of review was granted on plaintiff's application for the purpose of determining the correctness of that conclusion of the Court of Appeal as well as to consider whether defendant was entitled to recover 10% interest on its claim in reconvention.

The majority opinion, as I read it, fully sustains the resolution of the Court of Appeal that damages for humiliation, inconvenience, etc. are not recoverable in actions ex delicto for illegal seizure of property where it appears that the seizing creditor was in good faith and that the debt for which the process issued was due and owing. Indeed, the opinion goes a step farther and holds in effect that plaintiff is wholly remediless¹ and authorities are cited which are said to support this view.

The cases cited by the majority are not apposite and the reasoning upon which the conclusion is predicated is of questionable validity. But, above all, the opinion ignores the prior jurisprudence to the contrary and, thus, overrules that jurisprudence by indirection.

Initially, it is pertinent to consider whether there is any sound basis for the majority ruling. Is there any logic in saying that a plaintiff should be denied damages for the illegal seizure of his property at defendants instance because defendant was not actuated by malice and plaintiff is a debtor? I confess my inability to find a fitting reason — for, surely, a tort has been committed and neither plaintiff's indebtedness nor defendant's lack of malice has any legal significance as an excuse for the wrong, although it might affect the extent of the damage.

This court has never heretofore approved of such a proposition. Conversely, the decision in the case at hand effectively overrules the case of Haas v. Buck, 182 La. 556, 162 So. 181, 183, which is much weaker from plaintiff's standpoint than the instant case.

The salient facts of Haas v. Buck were that Buck, as trustee of certain insurance companies, brought a suit against Haas on a promissory note. The latter answered and, after a trial on the merits, judgment was rendered in Buck's favor. After rendition of the judgment but before the expiration of three days, Buck caused execution to issue prematurely and seized property belonging to Haas. Within the three day period from rendition, Haas applied for a new trial. The application was overruled and Haas did not appeal from the judgment or enjoin the seizure. Later, the property was sold to satisfy the judgment. During the interim, however, Haas brought a suit sounding in damages for the premature seizure of his property under the judgment. Buck filed an exception of no right or cause of action which was sustained in the lower court. On appeal, this court reversed the judgment and remanded the case for trial on its merits, holding that:

"There can be no doubt that an action for damages arises from the wrongful seizure of property. Civ. Code, art. 2315; Durbridge v. Wentzel, 17 La.Ann. 20. Such an action accrues at the moment of the levy, and is not postponed until a final determination of the litigation involving its validity. Duperron v. Van Wickle, 4 Rob. 39, 39 Am.Dec. 509.

"At the time this suit was instituted, plaintiff had already suffered some damages from the violation of his rights, if from nothing more. Plaintiff's failure to enjoin the seizure or to appeal suspensively from the judgment under which it was levied, cannot destroy his cause of action."

The court did not say in the Haas case (nor has it ever said before) that Buck's good faith or the fact that Haas owed the debt affected the cause of action. And yet, there, the issuance of the fi. fa. was merely premature as Haas' motion for a new trial was overruled, the seizure sustained and the property sold to satisfy the judgment.

The decisions cited in the main opinion do not sustain the view that damages are not recoverable for illegal seizure where plaintiff is the debtor of the seizing creditor and the latter acts in good faith. Those cases are Oxford v. Colvin,134 La. 1094, 64 So. 919; Fallin v. J. J. Stovall Sons (on rehearing),141 La. 220, 234, 74 So. 911, 915; Chappuis v. Preston, 28 La.Ann. 729; Townsend v. Fontenot, 42 La.Ann. 890, 8 So. 616 and Jackson v. Bouanchaud, 178 La. 26, 150 So. 567 and are authority only for the proposition that attorney's fees are not a recoverable item of damage for securing an injunction against an illegal seizure if the seizing creditor is in good faith and the plaintiff in the injuncton is the defendant in execution. This rule is now well established — although, as pointed out in Jackson v. Bouanchaud, supra (where most of the prior jurisprudence is cited and discussed), there has been considerable conflict in the decisions. However, the underlying reason why attorney's fees are ordinarily not recoverable stems from the general rule that these items are not legally considered to be elements of damage, in the absence of statute, and not because the seizing creditor is in good faith or because the plaintiff owes the debt.²

To buttress its holding in this case, the majority relies heavily on Oxford v. Colvin, supra, and quotes the following statement from that case:

"As relates to attorneys' fees and damages claimed by plaintiff in injunction, we do not think that in this case the plaintiff in injunction is entitled to either." (Emphasis mine.)

A reading of the opinion in Oxford v. Colvin will readily exhibit that the damages to which the court was referring were not actual damages (as claimed by plaintiff herein) but punitory damages³ which are not allowable under our law. See McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, 85 A.L.R. 1147.

I respectfully dissent.

¹ The opinion recognizes that, since the defendant did not apply for a writ of certiorari, this court cannot reverse the allowance to plaintiff for attorney's fees and monetary losses. In view of the conclusion that a damage suit cannot be maintained under the circumstances appearing here, it is evident that, if defendant had applied for a writ, the entire award of the Court of Appeal would have been disallowed.

² The Court of Appeal erred in permitting recovery of attorney fees in the instant matter.

³ See 134 La. at page 1097, 64 So. at page 920, where it is stated: "Plaintiff claimed the fee of attorney and punitory damages; * * *".