Adams-Newell Lumber, Co. v. Jones

• Decision Date: 25 January 1932
• Docket Number: 29753
• Citation: 139 So. 315,162 Miss. 517
• Court: Mississippi Supreme Court
• Parties: ADAMS-NEWELL LUMBER, CO. v. JONES

139 So. 315

162 Miss. 517

ADAMS-NEWELL LUMBER, CO. v. JONES

No. 29753

Supreme Court of Mississippi

January 25, 1932

Division A

Suggestion Of Error Overruled February 8, 1932.

APPEAL from circuit court of Neshoba county HON. D. M. ANDERSON Judge.

Action by W. E. Jones against the Adams-Newell Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Richardson, Pierce & Sanford, of Philadelphia, for appellant.

The court erred in taking jurisdiction of the cause, because the declaration shows upon its face that the amount of damages claimed by the appellee which could be recovered was less than the jurisdictional amount of which the circuit court has jurisdiction. Under the allegations of the declaration the only damages alleged which could be recovered in the action was one hundred fifty dollars, the alleged value of the cow, therefore, the amount demanded other than the value of the cow was so remote until it was only a matter of surplusage in the declaration and did not aid to give the court jurisdiction of the cause.

Sec. 490, Code 1930, sec. 481, Hemingway's Code of Miss. 1917.

The court committed error in granting the instruction for the plaintiff in the court below based upon section 1580 of Code 1930.

Wickton v. Louisville & Northern Railroad Company, 45 F.2d 615.

Williamson & Clayton and Nate S. Williamson, all of Meridian, for appellee.

The prima facie instruction was harmless error.

Andrew McMullen v. Kinchin Mayo, 8 S. & M. 298; Barringer v. Nesbit, 1 S. & M. 22; Bell v. Medford et al., 57 Miss. 31; Nichols v. Gulf & Ship Island R. Co., 36 So. 192.

The court did not err in taking jurisdiction of the cause because without regard to whether or not certain elements of damages set forth in the declaration were recoverable there can surely be no doubt but what the declaration properly seeks to recover actual damages in the amount of one hundred fifty dollars and also punitive or exemplary damages based upon the fact as charged in the declaration, that the defendant or its servants or employees in charge of said train did negligently, carelessly and wilfully or with such gross negligence as would be equivalent to wilful or capricious wrong caused said train to run into and to injure and kill said cow.

The court did not err in granting the prima-facie instruction.

Miss. Cent. R. Co. v. Knight, 103 So. 377; Roberds v. Mobile & O. R. Co., 21 So. 10; New Orleans, M. & C. R. Co. v. Harrison, 105 Miss. 18, 61 So. 655.

The appellee was entitled to a peremptory instruction on the question of liability and if we are right in this conclusion the granting of the prima facie instruction could not under any circumstances be considered reversible error.

8 S. & M. 298; 1 S. & M. 22; 57 Miss. 31; 36 So. 192.

OPINION

McGowen, J.

The Adams-Newell Lumber Company appeals from a judgment of the circuit court of Neshoba county rendered upon a verdict of a jury awarding the appellee, Jones, damages in the sum of one hundred fifty dollars for a milch cow alleged to have been killed by a log train.

The declaration in this case, among other things, alleged that the appellant, while operating a train of cars on a railroad drawn by an engine propelled by steam, negligently killed a milch cow of the value of one hundred fifty dollars. The declaration also alleged that servants of the company killed the cow under such circumstances as to amount to willful wrong and gross negligence, and sued for the sum of two thousand seven hundred and fifty dollars punitive and other damages.

By instruction, the court submitted the question of punitive damages to the jury, but such damages were not allowed.

On the facts, two witnesses testified positively and in detail that they saw the cow in controversy killed by the engine of the appellant; that the track was straight and level at the point for a long distance; and that the engineer was looking directly at the cow for a long time before it was struck while grazing, knocked off, and killed.

For the defendant railroad company, it was shown by many witnesses that the train in question did not kill the cow; that the body of the...