(dissenting).
There were two contests between these parties involving the same subject matter. They were heard by different judges. The first was on defendant’s motion in an earlier case to declare the truck exempt; the second before the trial judge in this case on defendant’s suit for wrongful attachment.
The first decision, rendered after a hearing on the merits, held the truck to be exempt. It decided the issue, became a finality and was appealable. Barrett v. Commercial Credit Co., 54 App.D.C. 249, 296 F. 996. But no appeal was taken.
In this case the trial judge decided ad« versely to plaintiff on two grounds: (1) that because the applicability of the exemption statute to automobiles had never been decided in this jurisdiction there was no abuse of legal process or wrongful attachment, and (2) that because the ruling in the earlier case was thought to be erroneous it was not binding. This was plainly error. It was violative of the rule many times announced in courts throughout the land that an issue once determined between the parties becomes the adjudicated law as between them and may not be collaterally attacked. In a very recent case1 we called attention to the rule that “a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, * * * cannot be disputed in a subsequent suit between the same parties or their privies * * Hines v. Welch, 57 App.D.C. 371, 376, 23 F.2d 979, quoting from Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355. See also Smith v. Law, 56 App.D.C. 86, 10 F.2d 651; Geracy, Inc., v. Hoover, 77 U.S.App.D.C. 55, 133 F.2d 25, 147 A.L.R. 185; Mergardt v. Colonial-American Nat. Bank, App.D.C., 140 F.2d 701.
Even if the judge in the second case thought the first ruling erroneous, it was still binding. See Clegg v. United States, 10 Cir., 112 F.2d 886, where it was held that though the judgment was erroneous, and the court was mistaken as to the facts, or misconceived the law or disregarded public policy, it was still decisive of the controversy, and must be followed. See also Elder v. Frevert, 18 Nev. 446, 5 P. 69; involving this specific question, where it was held that a decision in a former case, holding property exempt, was conclusive upon that issue, in a later proceeding between the same parties.
The judgment here under review was erroneous because it was based upon a fundamental misapplication of the res ju-dicata rule. It seems to me that we should so declare instead of predicating our decision on a theory which was seemingly not presented, considered, or decided in the trial court, and was not argued before us, —plaintiff’s alleged failure to prove want of probable cause.
As to this, I question whether “probable cause” was a necessary element of the case, except as it might bear indirectly on the question of damages. The common law forms of action having been abolished, this was simply an action for damages. Ross v. Hawthorne, 55 Miss. 551. Moreover, it could be much more accurately classified as an action for malicious trespass, whatever formal label be affixed to it. Thus the plaintiff was not required to meet the more elaborate tests that apply in the formal malicious prosecution type of action. He was required to prove only the wrongful seizure. To require more of him is to create a greater burden than the law or fair .play warrants.
Moreover, I think he did prove want of probable cause, and prove it clearly. The uncontradicted evidence, according to the agreed statement, was that the attaching creditor was warned in advance that the property was exempt, and that he ignored the warning and proceeded with the levy. Even if it can be said that his guess, though wrong, was innocent, he was liable *182at the very least for nominal damages. He was liable, too, for such compensatory damages as plaintiff could prove. And if' malice, wantonness, or oppression were fairly deducible from his conduct, he was liable also for punitive damages. To absolve him completely is to destroy the remedy of this and other judgment-defendants whose property is wrongfully appropriated.
It is said that his only possible recovery would have been for nominal damages, and therefore affirmance must follow. But not one of the cases cited in the majority opinion (footnote 9) deals with wrongful seizure of property. On the other hand there is respectable and well-reasoned authority holding that though only nominal damages might result, an erroneous decision should be reversed, especially when it carries costs, as this judgment did, and resulted in prejudicing a substantial right. State v. Dickmann, 146 Mo.App. 396, 124 S.W. 29; Bass v. Starnes, 108 Ark. 357, 158 S.W. 136; Braun v. Peet, 97 Neb. 443, 150 N.W. 256; Sarg v. Sugg, 186 Okl. 37, 96 P.2d 15, 125 A.L.R. 1217; Myers v. Sunlight Laundry, 10 Ohio App. 275; Reinkey v. Findley Electric Co., 147 Minn. 161, 180 N.W. 236; State v. Buckley, 98 Wash. 379, 167 P. 1087; Harmony Ditch Co. v. Sweeney, 31 Wyo. 1, 222 P. 577; Callanan v. Keenan, 224 N.Y. 503, 121 N. E. 376.
It is utterly fallacious to urge the de minimis theory here. This situation is far from trifling to this plaintiff, whose property has been seized without warrant in law, and despite his formal warning that it was exempt. If the law disdains to right the wrong, the law is callous indeed.
But, says the majority, he could not drive the truck anyway and was therefore entitled to nothing for its seizure. With this view I differ sharply. The truck was his, and his right of possession was deliberately invaded. It that meaningless? Is his credit standing worth nothing? Is the resultant humiliation a mere trifle? Not if we give effect to the ruling in Clark v. Associated Retail Credit Men, 70 App. D.C. 183, 105 F.2d 62, 64. There no property had been seized at all; indeed a suit had not even been filed. The charge was based upon letters and mere threats of action. Because defendant’s conduct was deliberate and intentional, the Court held him liable. Much more deserving is this situation, because it is much more drastic.
I quite agree with my colleagues that our exemption laws need revising. In the Bostic case, 69 W.L.R. 101, which was before me when I was a member of the trial court, I called attention to the pressing need of new exemption laws to meet the needs of present day life in this metropolitan community. An exemption law which makes careful provision for swine, oxen, sheep and drays, but ignores automobiles, certainly needs to be brought up to date. A law which gives no protection to the many thousands who work in the District but are forced to seek housing in nearby Maryland and Virginia, obviously needs to be amended.
But I do not agree that while we are waiting for Congress to act the courts must sit supinely by, and protest our helplessness to construe the existing statute so as to relieve against oppression. We as judges cannot change the statute. “But,” as the Court said in the Clark case, supra, “if we are in one of the ‘open spaces’ in the law of this jurisdiction we must fill it as well as we can, with a view to the social interests which seem to be involved and with such aid as we can get from authorities, elsewhere and from ‘logic, and history, and' custom, and utility, and the accepted standards of right conduct.’ We cannot evade this duty; for unless we establish a right in the plaintiff we establish a privilege or immunity in the defendant.”
It is against the unwarranted immunity created by the decision of the majority that I protest.
Scholl v. Tibbs, D.C.Mun.App., 36 A. 2d 352, 353. See also Jemison v. Metropolitan Life Ins. Co., D.C.Mun.App., 32 A.2d 704, and Smith & Gottlieb, Inc., v. Cheatham, D.C.Mun.App., 31 A.2d 676.