John GODWIN, Jr.
v.
Walter E. VINSON.
No. 537.
Supreme Court of North Carolina.
May 3, 1961.Graham M. Carlton, Salisbury, for plaintiff-appellant.
George L. Burke, Jr., Salisbury, for defendant-appellee.
PARKER, Justice.
The procedure of defendant by motion in the cause to recover on the bonds taken for his benefit therein is authorized by the express language of G.S. § 1-440.45(c). Brown v. Guaranty Estates Corp., 239 N.C. 595, 80 S.E.2d 645, 650, 40 A.L.R. 2d 1094.
On the second issue submitted to the jury, the trial court restricted any recovery for the loss of the use of his automobile by defendant to the time when it was in possession of the sheriff by virtue of the writ of attachment caused to be issued by plaintiff up to the time the Wachovia Bank and Trust Company received possession of it.
A careful examination of the assignments of error in respect to the trial as to the first, second and third issues fails to show prejudicial error in respect to the trial as to the first three issues. However, prejudicial error is shown by the assignment of error as to the charge on the fourth issue, which is as follows: "Now the last issue which the court will submit is: 4. What is Mr. Vinson entitled to for the loss of his equity to his station wagon? Answer. * * * Now, as the court instructed you, he contends he is entitled to $1,637.00, and Mr. Godwin contends he is entitled to nothing. Now, if you answer the third issue No, and find Mr. Vinson did not do what a man in the exercise of reasonable care and diligence would have done to protect his equity, then you would not answer the fourth issue, it would not have been Mr. Godwin's fault that he lost the equity if he did not act like a reasonable man about it, but if you answer that third issue, Yes, then you would award on the fourth issue any amount from one dollar to $1,637.00 that you find by the greater weight of the evidence Mr. Vinson would be entitled to for the loss of his equity." *620 The court gave the jury on the fourth issue no rule as to the measure of damages, so that the jury could arrive at a correct verdict.
Plaintiff's two bonds for attachment of defendant's automobile conform to the provisions of G.S. § 1-440.10, the relevant part of which reads: "(2) The condition of the bond shall be that a. If the order of attachment is dissolved, dismissed or set aside by the court, or b. If the plaintiff fails to obtain judgment against the defendant, the plaintiff will pay all costs that may be awarded to the defendant and all damages that the defendant may sustain by reason of the attachment, the surety's liability, however, to be limited to the amount of the bond."
When the attachment defendant proceeded on the bonds in the principal case here, he "is entitled to recover the actual damages sustained by him by reason of the levy of the order of attachment on his property. Citing authority. The liability of the surety, however, is limited to the amount of the attachment bond. Citing authority." Brown v. Guaranty Estates Corp., supra.
Actual damages means "compensation for injuries and losses which are the direct and proximate result of the wrongful suing out of the writ and the seizure and detention of his property thereunder. Actual loss or injury must have been sustained or no compensatory damages are recoverable." 7 C.J.S. Attachment § 556, p. 680. To the same effect: 5 Am.Jur., Attachment and Garnishment, § 1005; Sutherland on Damages, 4th Ed., Vol. II, § 512, p. 1689.
It has been judicially determined in the principal action that the attachment of defendant's automobile was unlawful, therefore, plaintiff is a wrongdoer ab initio. Stanley v. Carey, 89 Wis. 410, 62 N.W. 188; Sutherland on Damages, 4th Ed., Vol. II, § 512, p. 1691. Therefore, if attachment defendant had any equity in his automobile at the time of its seizure by virtue of the writ of attachment procured by plaintiff, which he lost as a direct and proximate result of the wrongful suing out of the writ of attachment by plaintiff and the seizure and detention of his automobile thereunder, he is entitled to recover as actual damages the fair cash value of the equity in his automobile at the time and place of its seizure by the sheriff by virtue of the wrongful writ of attachment, with lawful interest on such value from the time of the seizure to the time of the rendition of the judgment. 7 C.J.S. Attachment § 559, pp. 681-682; 5 Am.Jur., Attachment and Garnishment, § 1005, p. 205; Sutherland on Damages, Vol. II, 4th Ed., p. 1691.
Plaintiff was entitled to have the trial judge instruct the jury on the fourth issue on the measure of damages as set forth in this opinion.
The statement of Walker, J., for the Court in Table Rock Lumber Co. v. Branch, 158 N.C. 251, 73 S.E. 164, 165, has been quoted many times with approval: "It is settled beyond controversy that it is entirely discretionary with the court, superior or supreme, whether it will grant a partial new trial. It will generally do so, when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others, and it is perfectly clear that there is no danger of complication."
This case comes within the rule stated by Justice Walker as to when a partial new trial will be ordered. We perceive no good reason why attachment defendant should again be put to trial on the first, second, and third issues. In awarding a partial new trial upon the fourth issue alone, we find precedents in our following decisions: Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R. 2d 333; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Jackson v. Parks, 220 N.C. 680, 18 S.E.2d 138; Messick v. City of *621 Hickory, 211 N.C. 531, 191 S.E. 43; Gossett v. Metropolitan Life Ins. Co., 208 N.C. 152, 179 S.E. 438; Johnson v. Seaboard Air Line R. R., 163 N.C. 431, 79 S.E. 690, Ann.Cas.1915B, 598; Rushing v. Seaboard Air Line R. R., 149 N.C. 158, 62 S.E. 890.
In the trial of the first three issues we find no error. A new trial is ordered in this case, limited, however to the fourth issue.
Partial new trial.
RODMAN, J., concurs in result.