
    Case 100 — ACTION F.OR DAMAGES FOR MALICIOUSLY SUING OUT ATTACHMENT
    Jan. 30.
    Farmers & Traders Tobacco Warehouse Company v. Gibbons.
    appeal from bracken circuit court.
    1. Action eor Malicious Attachment. — An action for malicious or ■wrongful suing out of an attachment can only he maintained by a defendaat against whom such attachment had been actually sued out. It can not therefore he maintained by one who was joined as a defendant in an action in which an attachment was obtained where it appears that no attachment was prayed for against him and that the issnal of the attachment against him was a .clerical error.
    2. Same — Damages.—In .an action under section 7 of the Kentucky ■Statutes for suing out an attachment for good canse, and causing same to be levied upon one’s property, the only damages recoverable are the actual and direct damages to the property itself.
    3. Action jtob Malicious Institution oe Suit. — Before an action can be maintained for the malicious prosecution of an action without regard and the suing out of an attachment therein, it must appear that such action was founded; in malice, was instituted without probable cause and that the plaintiff has been damaged thereby.
    A. M. J. OOiOHRAN eor the appellant.
    1. As to the cause of action for damages sustained by reason of the attachment in the former action:
    (■a) The cause of action as to this was for suing out an at tachmenit against appellee 'and his property maliciously and without probable or good cause and not for levying an attachment sued out against W. A. Gibbons on the property of appellee.
    (b) No attachment was sued out in the former action against the appellee The only attachment sued out in the action vías against W. A. Gibbons. Appellee was served as garnishee and what was his property ostensibly was levied on under the attachment as the property of W. A. Gibbons.
    (c) The only right he had om account of this levy was to sue for the damages sustained by reasqn. of the wrongful levy. He could not maintain an action for suing out the attachment maliciously and without .probable or good cause. Duncan v. Griswold 92 Ky., 546; Duncan’s Trustee v. Cit. Nat. Bk., 45 ¡S. W. R., 774; Breathwith v. Rogers, 63 Ark., '500; 1 J-aggard on Torts, 612.
    (d) The lower court did not have jurisdiction of an action for the wrongful levy of the attachment as that levy was made in Jefferson county. It did have jurisdiction of an action for the wrongful suing out of the attachment, if one had been sued out. Civil Code, sec. 72.
    (e) It can not be claimed that the action as to the attachment was for the wrongful levy. The theory on which appellee sued was for its wrongful issuance and a plaintiff can not recover ■on a different theory from that on which he sues. Elliott, Work o.f Advocate, 75; Mescall v. Tuly, 91 Ind., 96.
    2. As to the cause of action for the prosecution of the former action •as against appellee.
    (a) No relief was sought in. the former action as against .appellee until the amended petition was filed on October 18, 1895, and that was the commencement of the proscution of the .action "as to him.
    Ob) Malice and want of probable cause are both essential to maintain an action for malicious- prosecution, and if denied the burden is on plaintiff to prove them. Lancaster v. Lampion, 36 S. W., 521; Lancaster v. McKay, 45 S. W. R., 887.
    (c) Malice is- not a presumption of law from want of probable cause. Nor -can it be inferred from, want of probable cause any more than -want of probable cause can be inferred from malice. The most that can be said on the subject of inference is that the facts which shovw want of probable cause may justify the jury in' finding malice without further .proof. Lancaster v. Lamp-ton, 3'6 .S. W., 521; Cox v. Taylor, 10 B. Mon., 20; Proctor Coal Co. v. Moses, 40 S. W., 681; 14 Am. & Eng. Ency. of Law, 47; Bigelow on Torts, 86.
    (d) What facts constitute probable cause or the want of it in a particular case is a question of law. The- province of the jury is to determine the existence of such facts as the court •decides are necessary to constitute it when -controverted. Meyer v. -St L. & T. Ry. Co., 33 S. W. R., 98.
    (e) An action for malicious prosecution of a civil action without attachment or order of arrest can be maintained. Woods v. Finnell, Í3 BjUsh, 628.
    (f) But to maintain it plaintiff must show that the former ■action was prompted alone by malice and brought for the purpose alone of gratifying malice. Woods v. Finnell, 13 Bush, 628.
    
      (g) Greater latitude in the application of the doctrine of probable cause must he exercised in actions for malicious prosecution of a civil action than in such actions for such a prosecution of a criminal action. A civil action can he lawfully brought on very slight grounds of claim. Bigelow on Torts, 78.
    (h) There was a total failure of proof in this action of both want of probable cause and malice. On the contrary, it was clearly established that probable cause existed for the prosecution of the .former action as to appellee, and that it was so prosecuted from no other motive than an honest belief that appellee was civilly liable to appellant. The appellant was therefore entitled to a peremptory instruction as to the cause of action for the prosecution of the former action. On this ground it was also entitled to a peremptory instruction as to the cause of action as to the attachment.
    (i) It was error to permit appellee to testify as to his calculations -and deductions and from' certain data without introducing the data before the jury.
    (j) It was error to permit appellee to testify on the merits of the former action.
    (It) It was error to submit the question as to what constituted probable cause to the jury.
    (1) It was error to instruct the jury that they might infer ¡malice from want of probable canse. 14 Am. & Eng. Ency. of - Law, 47; Bigelow on Torts, 86.
    A. M. X COCHRAN and X R. MINOR fob appellant in a petition FOB A MODIFICATION OF THE OPINION.
    M. L. HARBESON fob the appellee.
    1. Jurisdiction, waiver of: Civil Code, secs. 92, 73, 78, 118; Johnson v. Johnson, 12 Bush, 486; Balter v. L. & N. R. R. Co., 4 Bush, 6.20; McDowell v. C. & O. Ry. Co., 12 Ky. Law Rep., 332; Sherrill v. C. & O. .Ry. Co., 11 Ky. Law Rep., 502; C. & O. Ry. Co. v. Heath’s Admr., 87 Ky., 651.
    2. Trespass, what constitutes and who liable: Drake on Attachment, sec. 185b, 118; Kerr v. Mount, 28 N. Y., 659; Wehle v. Butler, 61 N. Y., 245; Hall v. Waterbury, 5 Abbot’s New Cases; 26 Am. & Eng. Ency. of Law, 596; Ford v. Reid, 15 Ky. Law Rep., 606; Horne v. Mitchell, 7 Bush, 131.
    3. First instruction.
    (a) 'What facts the court miay assume in instructions: -Facts not denied in pleadings, and facts clearly established and nncontroverted 'in proof whether denied in pleading r.r not. L. & N. R. R. Co. v. Hennen, 14 Ky. Law Rep., 526; L. & N. R. R. Co. v. Morris, 14 Ky. Law ’Rep., 466; L. & N. R. R. Co. v. Earl, 15 Ky. Law Rep., 184; Turpin v. MclKee, 7 Dana, 305.
    (1)b Causing attachment -to issue without good cause: Measure of damages: that it was issued without good cause is concluded by discharge of attachment. Ky. Stat., ch. 1, sec. 7; Mitchell v. Mattingly, 1 Met., 237; Harris v. Davis, 13 Ky. Law Rep., 736.
    (c) Joinder of Statutory action for without good cause, causing attachment to issue with action for maliciously and without probable cause, proper. If not, objection was waived by failure to re require election. Duck v. Hollrook, 6 Ky. Law Rep., 511; L. & N. R. R. Co. v. Kellem, 13 Ky. Law Rep., 228; Hall v. Forman, 82 Ky., 505; Hunt v. Sernaum, 79 Ky., 270-; Rountree v. Glatt, 13 Ky. Law Rep., 462; Caldwell v. Caldwell, 2 Bush, 452; Sale v. ■Crutchfield, 8 Bush, 6'46.
    4. 'Second instruction. Maliciously and without probable cause ■causing an attachment to issue. Measure of damage, attorney fee. Pettit v. Mercer, 8. B. M., 51; Fullenwider v. McWilliams, 7 Bush, 389; Johnson v. Farmers’ Bank, 4 Bush, 287; Mitchell v. Mattingly, 1 Met., 237; Trapnall v. MoAfee, 3 Met., 34; Shultz v. Morrison, 3 Met., 98; Wilson v. Smith, 18 Ky. Law Rep., 927.
    5. Third' instruction. Right to and measure of damages in an action for maliciously and without probable cause instituting and prosecuting a civil action. Woods v. Finnell, Í3 Bush, 630; Duncan, Trustee, v. Griswold, 13 Ky. Law Rep., 756; Wood v. Pinkerton, 11 Ky. Law Rep., 259.
    6. Malice, what is. Drake on Attachment, sec. 733; 14 Am. & Eng. Ency. of Law, 22; Cooley on Torts, p. 185; Leher v. Elmore, 18 Ky. Law Rep., 551; Western & S. L. Ins. Co. v. Kaiser, 13 Ky. Law Rep., 206; Jaggard on Torts, vol. 1, p. 615; Wehbs Pollock on Torts, p. 306.
    7. Fifth instruction. Probable cause, what is. Drake on Attachment, sec. 732a; Greenleaf’s Ev., sec. 454; 14 Am. & Eng. Ency. of Law, 27, 55; Cooley on Torts, p. 183; Jaggard on Torts, p. •620; Burke v. Rhodes, 13 Ky. Law Rep., 431.
    8. 'Sixth instruction. Malice may be inferred from want of probable cause. Lancaster v. Langston, 18- Ky. Law Rep., S00; Lydia Eddy, &c., v. Longshaw, 2 Ky. Law Rep., 423; Drake on Attachment, sec. 732a.
    9. Advice of counsel when a defense. 14 Am. & Eng. Ency. of Law, 56; Ross v. Innis, 26 111., 260; Anderson v. Friend, 71 111., 475; 'Cooper y. Utterback, 37 Md., 309; Hill v. Palm, "8 Mo., 22; ■Sharpe v. Johnston, 57 Mo., 577; Sappington v. Watson, 50 Mo., 83; Peppin v. Haucke, 15 Mo. App., 373; Jordan v. Ala. Great So. R. R. Co., 81 Al’a., 220; Hilliard on Torts, vol. 1, p. 480; note to Webb Pollock on Torts, p. 396; Donnelly v. Daggett, 145 Mass., 314; Paddock v. Watts, 116 Ind., 146; Smith y. Austin, 49 Mich., 286; Forbes v. Haaman, 75 Va., 168; Burke v. Rhodes, 13 Ky. Law Rep., 431; Thompson v. Lumley, 50 How. N. Y. Pr., 105; Vinal y. Core, 18 W. Va., 1; Brewer 'v. Jacobs, 22 Fed. Rep., 217.
    ¡M. L. HARBESON bob the appellee in a petition bob a rehearing AND IN RESPONSE TO THE PETITION BOB A MODIFICATION OB THE OPINION.
   JUDGE BURHAM

delivered the opinion op the court.

On the 21st day of August, 1895, appellant filed a petition in the Bracken' Circuit Court against W. A. Gibbons, the father of appellee, and appellee was also made a defendant. It was alleged that W. A. Gibbons was indebted to appellant in the sum of $11,217.28 for money advanced to him for the purpose of purchasing leaf tobacco under an agreement that the tobacco purchased should be shipped by W. A. Gibbons to appellant’s warehouse in Cincinnati, Ohio, where.it was to be sold, and out of the proceeds appellant was to receive the usual warehouse fees, commissions, etc., and the money so advanced by it, with interest; that W. A. Gibbons, in violation of his agreement, bought large quantities of tobacco with the money advanced to him by appellant, and shipped it to his co-defendant, TV. M. Gibbons, in Louisville, Kentucky, who sold it, and had the proceeds; that the defendants had conspired and confederated together to defraud the plaintiff; and that the defendant, W. A. Gibbons, was about to sell, convey or otherwise dispose of his property'to cheat, hinder and delay his creditors; and that he had sold, conveyed or otherwise disposed of his property, or suffered or permitted it to be done, with such intent; and the petition closed with this prayer;

“Wherefore plaintiff prays for an order of general attachment against the defendant, W. A. Gibbons, for judgment for $11,217.28, with six per cent, interest from August 21, 1895, until paid; for its costs; that the funds and property of said defendant be attached in the hands of his co-defendant, W. M. Gibbons, or otherwise; and upon final hearing that the attachment be sustained; and for all other proper relief.”

An attachment bond was executed to W. A. Gibbons, and a general attachment against W. A. Gibbons alone was issued, though summons issued against appellee also.

Subsequently, and before the levy of the original attachment, appellant, through its attorney, procured from the deputy clerk a number of copies of the attachment, in which the name of appellee was inserted as a party defendant whose property was sought to be attached; and a number of these copies were delivered to various garnishees in Louisville by the sheriff, who had the original older of attachment in his hands for execution; and the attachment against W. A. Gibbons was, by direction of ap pellanffs attorney, levied on certain property in the pos session of appellee as the property of W. A. Gibbons.

At the next ensuing term of the court appellant filed an amended petition, in which it was alleged that W. M. Gibbons was a co-partner in the transaction set forth in the original petition, and with full know ledge of the contract and agreement between ap pellant and W. A. Gibbons converted a large amount of the tobacco bought with the moneys' advanced to W. A. Gibbons to his own use, and sought a personal judgment against him; but no additional attachment was sued out in the action other than that which issued on theoriginal petition.

.W A. Gibbons filed an answer, in which he admitted his liability for the debt sued for, but denied the allegations of fraud and grounds of attachment. Appellee also filed an answer denying the allegad partnership, or that he had in his hands any funds or property belonging to W. A. Gibbons, and setting up a claim to all of the property levied on under the general attachment; and on his motion all of the property levied on was released, and turned over to him, except about 1,000 pounds of loose tobacco, at the first term of the court.

At the March term the issue as to the ownership of this tobacco1 and of appellee’s personal liability was tried by a jury, and resulted in a verdict for appellee, upon which judgment was rendered dismissing the petition as to him. Thereafter appellee instituted this action against appellant for damages for maliciously and without probable cause instituting and prosecuting the former action against him, and for maliciously and without probable cause causing the attachment to be issued without good cause. A trial of this action resulted in a verdict and judgment in favor of appellee for $2,000 under instructions authorizing a recovery under each paragraph of the petition, and, a motion for a new trial having been overruled, appellant has appealed to this court.

The original petition contains two paragraphs. In one it is alleged that appellant maliciously and without probable cause instituted this suit against him, and maliciously caused an attachment to issue against the property of appellee, and had same levied upon certain tobacco and other property belonging to him^set out in the petition. The other paragraph is a proceeding under section 7, Kentucky Statutes, for damages for the suing out and levy of the attachment “without good cause,” and in this paragraph it is alleged “that said writ and purported copies thereof were caused to be issued against plaintiff herein by defendant maliciously and without either good or probable causg, and that the same were caused to be so issued and executed by and in accordance with the directions of the defendant herein.”

The answer, as amended, is a general denial of each and every averment of the petition. From a careful examination of the pleadings in this case we are of opinion that the attachment sued out in the proceeding instituted by appellant against W. A. Gibbons was against him alone, and that it only sought incidentally to subject certain property of W. A. Gibbons alleged to be in the possession of appellee to the payment of its demand, and that appellee was made a party defendant for this purpose alone. The averments of the petition did not authorize the issual of an attachment against the property of appellee, and no bond was executed to him authorizing the clerk to issue such attachment, and the insertion of his name in the copies of the attachment was manifestly an error. There is nothing in that proceeding showing that an attachment was sought against appellee or his property, and the law is well settled that an action for the malicious or wrongful suing out of an attachment can only be maintained by a defendant against whom such attachment had been actually sued out. (See Jaggard on Torts, 612; Duncan v. Griswold, 92 Ky., 546, [18 S. W., 354].)

But the injury for which appellee has a cause of action is that the attachment against W. A. Gibbons was, by the direction of appellant, levied upon his property; and the averments of the petition are sufficient to support a cause of action for such wrongful levy and seizure, and for damages to the property levied upon that directly flowed therefrom.

There was no motion to require appellee to elect what cause of action he would prosecute, and no question of jurisdiction was raised in the court below, the issues being joined on each separate paragraph of the petition without objection.

The case of Worthington v. Morris’ Ex’x, 98 Ky., 54, [32 S. W., 269], was an action for damages for the wrongful seizure of the property of a defendant by attachment, who was charged with having fraudulently conspired with a debtor to assist him to cheat, hinder and delay his creditors; and the alleged facts of that case were very similar to those relied on in this proceeding, and it was held that the plaintiff could not recover attorneys’ fees as a part of her damages on account of the wrongful seizure of her property which was levied upon under an attachment issued in the action; that only actual and direct damages to the property itself could be recovered.

And we are of the opinion that this should have been the measure of appellee’s recovery in this action.

Whilst appellee also sought in this proceeding to recover for the malicious prosecution of the action itself against him, without regard to the suing out of the attachment, it seems to us, from a careful examination of the testimony, that he has failed to make out the necessary grounds in a proceeding of that character, as it must appear that such action was founded in malice, was instituted without probable cause, and that the plaintiff ha® been damaged thereby. (See Woods v. Finnell, 13 Bush, 633, and Lancaster v. McKay (Ky.), [45 S. W., 887].)

What is meant by malice and probable cause has been so frequently construed by the opinions of this court that it is unnecessary that we should do so again in this proceeding. The burden to establish both of these ingredients rested upon appellee, and, in our opinion, he has failed to do either. The testimony shows that appellant honestly sought the advice of its attorney after taking more than ordinary care to acquaint itself with the facts on which it based its claim for recovery, and, after fully and fairly stating the case, pursued the course recommended by such counsel, and neither malice nor want of probable cause is shown.

For reasons indicated, the judgment is reversed, and cause remanded for a new trial consistent with this opim ion.  