Investment Securities Corp. v. Cole

on rehearing.

MacIntyre, J.

We should bear in mind that the jury were authorized to find that the defendant in this case caused the officer to wrongfully levy an attachment on the property in question, over the protest of the plaintiff, who told the defendant from whom he purchased the car that a wrongful sale was made on the attachment, that at such wrongful sale the defendant became the purchaser of the car, and that the plaintiff had not up to that time received anything for his car wrongfully sold. It has been said: “We deduce from the authorities the doctrine to be that exemplary damages are allowable, not only for acts maliciously perpetrated, but also in cases where one knowingly, wantonly, and recklessly does an act fraught with probable injury to person or property, and ultimately producing such injury or damage. 2 Wait’s Act. & Def. 448, § 7; Taylor v. Railway Co., 2 Am. R. 229 [48 N. H. *105304]; Kountz v. Brown, 16 B. Monr. [Ky.] 577; Wallace v. Mayor, 2 Hilt, 440; Shear. & Redf. on Neg. § 600. Such a spirit must be considered as at war with that good faith which ever preserves a just regard for the lawful rights of others Lienkauf v. Morris, 66 Ala. 406, 414. “Exemplary damages are not allowable in an action based on a trespass which, though unlawful, was not malicious; malice is not implied from the mere unlawfulness of the act. But such damages may be imposed where a trespass is wantonly or recklessly committed, though there is no proof of actual malice toward the plaintiff.” 4 Sutherland on Damages (4th ed.), 4164, § 1095. “In trespass against an officer, who on a writ against a husband persisted in attaching the goods of the wife after being told that they were her property, the value of the goods is not the measure of damages, and the court will not disturb a verdict against such officer for a sum much in excess of such value Cassium M. Von Storch v. Winslow, 13 R. I. 23 (43 Am. R. 10). We did not hold in this case that a mere disregard of the rights of others would authorize a recovery of exemplary damages against the trespasser; for that element exists in every trespass, except possibly those committed in honest mistake or accident or misadventure. So, if every trespass committed in disregard of the rights of another entitles the injured party to exemplary damages, there are few conceivable trespassers against whom exemplary damages may not be recovered. What we hold is, that, to authorize a recovery of exemplary damages in the instant case, there must be at least a wanton or conscious or intentional disregard of the rights of others. Jones v. Lamon, 92 Ga. 529, supra; Wilkinson v. Searcy, 76 Ala. 176, 181. Such a spirit must be considered as in conflict with that good faith which ever preserves a just regard for the lawful rights of others. Hpon a reconsideration of the entire case, granted on motion of both parties, we adhere to our original judgment.

Broyles, 0. J., and Guerry, J., concur.