Austin Machinery Corp. v. Clark-Hunt Contracting Co.
| Decision Date | 26 January 1925 |
| Docket Number | 24582 |
| Citation | 140 Miss. 78,103 So. 1 |
| Court | Mississippi Supreme Court |
| Parties | AUSTIN MACHINERY CORPORATION v. CLARK-HUNT CONTRACTING CO. [*] |
Suggestion of Error Overruled March 9, 1925.
APPEAL from circuit court of Quitman county, HON. W. A. ALARCON JR., Judge.
Replevin suit by the Clark-Hunt Contracting Company against the Austin Machinery Corporation. Judgment for defendant, and defendant appeals from that part thereof as to damages, and plaintiff cross-appeals. Affirmed in part, and reversed and remanded in part.
Judgment affirmed in part, reversed and remanded in part.
Lowrey & Lamb, for appellant.
Section 4222, Code of 1906 (section 3051, Hemingway's Code), provides for bond by the defendant in replevin and the next following section gives the form of the bond. Section 4224, Code of 1906 (section 3053, Hemingway's Code), provides for bond by the plaintiff and the form of the bond is given in section 4226, Code of 1906 (section 3055, Hemingway's Code). Section 4233 and 4234, Code of 1906 (sections 3062 and 3063, Hemingway's Code), provide for judgment for the plaintiff and defendant, respectively, and section 4336, Code of 1906 (section 3065, Hemingway's Code), provides for execution.
The legislature, Acts 1924, chapter 166, amended section 4222, Code of 1906, so as to make the defendant liable for damage to and depreciation in value of property bonded, but we do not understand that this has anything to do with the present case, except probably as an indication of the legislative mind and construction of these statutes.
We think the conclusion is reasonable that the legislature did not amend the statute as to liability of the plaintiff giving bond because the bond of the plaintiff in express terms binds him and the sureties for the damages and cost. It seems that this court in construing the liability of the plaintiffs and defendant, respectively, has made little or no distinction because of the conditions of their respective bonds, but have uniformly held the defendant liable for damages and cost in addition to the return of the property.
This result seems to be reached because of section 4233, Code of 1906 (section 3062, Hemingway's Code), which requires judgment against the defendant and sureties for damages and cost. Phillips v. Cooper, 59 Miss. 17; Sparks v. Hopsen, 83 Miss. 124, 35 So. 446; Dent v. Ross, 52 Miss. 188, at p. 192. However, this may be we can see no reason for holding that the plaintiff by the very condition of his bond is not liable for damages caused by deterioration in value of the property and even consequential damages, in addition to interest on the debt or value of the property, whatever might be the holding as to the liability of the defendant's bond prior to the amendment in 1924.
This court in at least three cases has said that in the absence of circumstances warranting punitive damages, the measure of damages is the value of the property at the time of the taking, detention or conversion with interest to the time of the trial. Whitfield v. Whitfield, 40 Miss. 352; Head v. James, 49 Miss. 236; Taylor v. Morton, 61 Miss. 24.
There seems to be no disposition to depart from or disregard these manifestly just principles, and where the matter has come before this court, damages for hire, and depreciation have been allowed and approved, not particularly by the language of the court, but by its decision, while on the contrary the court has in some cases used general language which is misleading.
These principles not only conserve the ends of justice, but they are not out of harmony with the general decisions of this court, and are expressly stated and approved by the textwriters generally and by the courts of other states., 23 R. C. L., secs. 73 & 74, p. 911; 24 Am. & Eng. Enc. of Law (2 Ed.), 513; 34 Cyc. 1582; Franks v. Matson, 71 N.E. 1011; Nahhas v. Browning, 6 A. L. R. 476, and note at 478; 23 R. C. L. 912.
In the case at bar the defendant did not ask the value of the use as damages because it was evident that the defendant would not have used the property. The defendant is a manufacturer and manufactures property of this character for sale and not for its own use. This being the case the damage to the defendant was in the depreciation of the value and not in the loss of the use. The defendant in this case, being the manufacturer and seller, is entitled to any damage to its market value brought about by the wrongful act of the plaintiffs. Moody v. Citizens Sav. & Inv. Co., 99 So. 817; Carpenter v. Gray, 99 So. 561.
It seems evident that the value of the parts depends upon their use as parts of the whole machinery and we think that it was rightfully treated by the plaintiffs as one piece of property, but, whether this be true or not, we think it is not now up to the plaintiffs to complain, and if the whole machine is damaged in value by the injury or loss or destruction of some of the parts, then this is a damage and injury to the machine as a whole, and would depreciate the whole value to that extent, and become an element of damages, or relieve the defendant from its obligation to receive it in satisfaction of the judgment.
With reference to the right of the appellant to appeal on the question of damages alone, and to ask for a reversal as to this feature of the case without disturbing the general verdict in its favor, we call the attention of the court to Drain v. Hilzeim, 13 S. & M. 336; Spratly v. Kitchens, 55 Miss. 578; Rushing v. Rushing, 52 Miss. 329; Atkinson v. Foxworth, 53 Miss. 733; Johnson v. Tabor, 101 Miss. 78, 57 So. 365; Rule 13 of this court.
Cutrer & Smith, for appellee.
The sole point raised in the brief of appellant, Austin Machinery Corporation, is whether or not the instructions of the court, relative to the element of damages recoverable in this cause, are correct or not. It is the contention of appellees that under no possible theory of damages allowable in replevin would the market value of the article replevined at the time of suit, control. Looking at this case from the most favorable viewpoint of appellant, the most which appellant could contend for would be a recovery for the damage to the machine while in the possession of appellee, assuming there was any damage whatever. The reason for this rule is evident. If we were to assume, in the first instance, that appellee had not replevied the machine, and it had remained in the possession and under the control, and as the property of appellant, the fair cash market value of the machine may have deteriorated greatly during the same length of time. This deterioration in value--that is to say, market value, was not and could not be damage to the machine, brought about by any third or outside party. It would represent a mere decrease in the market value of the kind and character of machine in question from a poor economic standpoint. According to the contention advanced in the brief of appellant herein, had appellee not used the machine, and had they stored it in a warehouse, in the same condition it was in when shipped by appellant, and had it remained there unused and unmolested, and the highest degree of care been taken thereof, and a drop in the market price of this kind and character of machine occurred, appellee would be liable therefor. A decline in prices is beyond the power of either of the parties, and certainly that element contended for by appellant is not and could not be attributable to the alleged wrongful seizure of the machine in question.
This is in no sense a case in which punitory damages were recoverable. The appellant's instructions authorizing such a recovery were not warranted by the facts or by the law, and therefore it was unnecessary for appellee to have sought a change on that point. The rule of damages in replevin prior to the enactment of chapter 166, Acts of 1924, has been stated in numbers of cases arising in the supreme court, and has been universally followed throughout the entire judicial history of the supreme court of this state, so far as we have been able to learn.
The rule as announced in cases of this character by the supreme court, is that in the absence of circumstances warranting punitive damages, the measure of damages is the value of the property at the time of the taking, detention or conversion, with interest to the time of the trial. Whitfield v. Whitfield, 40 Miss. 352; Head v. James, 49 Miss. 236; Taylor v. Morton, 61 Miss. 236.
This cause of action arose prior to the enactment of chapter 166, Laws of 1924, and of course it has no application as an element in this case, but is cited purely for the purpose of demonstrating conclusively that the legislature recognized the existence of the law, as contended for by appellees, and decided to change the laws so as to allow a recovery, as contended for by the instruction refused by the court, presented by appellant in this case.
We do not contend that appellant would be remediless in event the property were in such a condition as to be unrecognizable, because in that event, and in that condition, it is not tenderable, and the value thereof must be paid, as assessed by the jury. This rule was announced in the case of Hazlett v. Witherspoon, 25 So. 150. No such facts as existed in the Witherspoon case existed here. It is not contended that the machine in question is not in a condition to be delivered under the judgment of the court. The testimony seems to show that the machine is in better condition than when the writ of replevin was executed. At least, there is no testimony to the contrary.
Argued orally by P. H. Lowrey, for appellant, and E. W. Smith, for appellee.
This is a replevin suit brought in the circuit court of Quitman county in August, 1923...
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