C & C Trucking Co. v. Smith

Decision Date17 December 1992
Docket NumberNo. 90-CA-0366,90-CA-0366
PartiesC & C TRUCKING COMPANY and Bill Lambert v. Fred SMITH.
CourtMississippi Supreme Court

John A. Ferrell, Booneville, for appellant.

R.K. Houston, Bay Springs, for appellee.

Before the court en banc.

SULLIVAN, Justice, for the Court:

This appeal arises from a malicious prosecution case in the Circuit Court of the Second Judicial District of Jasper County, Mississippi. The jury returned a verdict in the amount of $25,000 actual or compensatory damages and $50,000 punitive damages in favor of Fred Smith (Smith) against C & C Trucking Company (C & C) and Bill Lambert (Lambert). 1 C & C and Lambert filed their motion for remittitur, or in the alternative, motion for new trial on the issue of damages only. They also filed their motion for judgment notwithstanding the verdict of the jury, or in the alternative, a motion for a new trial. 2 The trial court sustained the motion for JNOV in favor of Lambert on the ground that the jury was not informed of Lambert's net worth. The remaining motions of C & C and Lambert were overruled. Feeling aggrieved, C & C and Lambert appeal to this Court and assign the following as error:

1. Was the evidence of malice and want of probable cause legally insufficient to sustain a verdict against the defendants;

2. Was it contrary to law for the trial court to submit the issue of punitive damages to the jury when the proof showed C & C's worth to be zero; and

3. Was the verdict of $25,000 actual damages and $50,000 punitive damages against the overwhelming weight of the evidence and so grossly excessive as to be shocking, evincing bias, passion and prejudice?

Smith cross-appeals and assigns one error:

1. That the trial court erred in granting Lambert a JNOV on punitive damages.


C & C is a Mississippi corporation, domiciled in Prentiss County. Prior to 1986 and early 1987, the corporation was engaged in the business of trucking various commodities from place to place intrastate and interstate. C & C corporate stock was owned equally by Thomas H. Comer, Jr., a practicing attorney, and Phillip Cole, then Chancery Clerk of Prentiss County. Lambert was an employee of and dispatcher for the corporation who, together with Johnny In 1986, Smith owned a 1976 model Kenworth tractor with 44-foot refrigerated trailer used to transport commodities. Smith entered into a verbal lease agreement with Lambert who acted for and on behalf of C & C. Under the agreement, Smith leased his tractor and trailer to C & C and agreed to haul for them with C & C providing the contract and hauling permits. C & C also agreed to obtain insurance for Smith's tractor and trailer and deduct the premiums from Smith's accumulating income. Latrell Smith (Latrell), son of Smith, drove and operated the vehicle. On the night of October 5, 1986, Smith's truck was parked on the C & C parking lot. Sometime during the night, it was vandalized. According to Lambert:

Duncan, discharged the responsibilities of day-to-day business operations.

Someone had broken into it and had used a screwdriver to attempt--to turn the ignition switch on and in doing so had destroyed the ignition switch itself and was unable to put the key into it. They had also opened the flap on it and had attempted to hot wire it and, in fact, there was wire there and, in fact, they had accomplished--they were able to crank it, and why didn't steal it, I don't know....

Latrell discovered the entry and ensuing damage to the truck when he arrived at the C & C parking lot preparatory to departing with a load of processed imported Plum Rose hams scheduled for delivery in Alabama and Florida. Lambert and Latrell were able to get the truck running by hot wiring it and putting the truck on manual pump. Latrell left the C & C parking lot at approximately 1:00 o'clock on the morning of October 6 for the purpose of making the contractual deliveries. The testimony of the parties concerning subsequent events are for the most part irreconcilable. Smith testified that about 2:30 or 3:00 o'clock a.m. on Monday morning, October 6, 1986, he received a call from Latrell relating that he was in Hamilton, Alabama, and the rig loaded with hams had become inoperable. Latrell also stated that immediately prior to his departure from the C & C parking lot, Lambert had informed him no insurance of any kind existed on the tractor and trailer. Smith and his wife left their home in the town of Louin and drove to Hamilton, Alabama. Smith testified as follows:

Q How many hours did it take you to go up there?

A It took me about an hour and a half or two hours to get up there.

Q Okay. How long did it take to get the truck so that it would run?

A Oh, probably about forty-five minutes.

Q And then what did you do?

A And then we limped back into the house there with the truck missing and running rough and--and I got the--finally got the truck home and when we turned the switch off or tried to turn the truck off, we discovered the truck had been put on manual pump, which means we couldn't shut it off; but when we did get the engine killed, it could not be started again.

* * * * * *

Q Well, what does the manual pump have to do with all that?

A Well, the manual pump is supposed to operate in the event that the electrical system does not work. It will keep the engine running.

Q Did you make an effort to get your engine back to where it would run?

A Yes, sir, I did.

Q What time did you arrive back home with the vehicle?

A At 8:00 o'clock in the morning on the morning of the 6th of October.

After eating breakfast, Smith called Lambert and told him the truck was "broke down," inoperable, and Lambert needed to come and get his load. Smith further testified:

A He wanted me to deliver the load. He told me that I needed to deliver the load; in fact, that I had to deliver the load, and I told him I couldn't.

Q What kind of language was the man using to you, sir?

A He was using profane language. I told him that I was a Christian man, that I did not want to hear that kind of language and that if it didn't stop, I'd hang up on him.

Q Did he stop?

A Yes, sir, but he did tell me before that that he didn't operate around God, so he wasn't required to honor that.

Smith said that Lambert had about 25 telephone conversations with him that day. In all, Lambert insisted that Smith deliver the load. On October 7, C & C dispatched a truck and driver to Smith's home in Louin where the contents of Smith's trailer were off loaded into the C & C trailer. At that time, Smith states that he was not aware of the institution by Thomas H. Comer, Jr., attorney for C & C, of criminal proceedings for embezzlement in the Justice Court in Prentiss County. These proceedings were begun against Smith by affidavit executed by attorney Comer on October 6, 1986. The affidavit charged that Smith "did embezzle or fraudulently secrete, conceal and convert to his own use the goods, rights in action, effects, valuable security of C & C Trucking Company." The affidavit was made as a result of representations made to Attorney Comer by Lambert. A felony warrant was issued for the arrest of Smith. On Wednesday afternoon, October 8, 1986, Smith was arrested and incarcerated in the Jasper County Jail where he remained for approximately three to three and one-half hours prior to making bond in the sum of $10,000 returnable before the Justice Court judge in Prentiss County where the charges were filed.

Jasper County Sheriff Tom Green testified that during the interim between the morning of October 6 and the evening of October 7, he talked to Lambert. His recounting of that conversation follows:

Q All right, sir, relate to the Jury what the tenor of that conversation was?

A He said he was going to have criminal papers made out on the man if he didn't move the load.

* * * * * *

Q Okay. Did he say anything further about his wishes about serving the papers?

A Well, I told him if he issued the papers, of course, we would serve them, that was our job.

Q Okay, sir. Now, what I'm asking you to relate to the Jury is what the gentleman you talked with had to say about serving the warrant?

A Well, he said he wasn't really interested in the warrant being served, he was interested in his load getting moved.

Q All right, sir. Now--

A That he--what I got from it, that he was going to make out papers to get the load moved. Well, that was what he said.

Q You've been Sheriff for how long, sir?

A Twenty-one years, two months and two days.

Smith's witnesses vowed that he is a religious person and before his arrest, he frequently sang in the church and led in prayer and had a lovely relationship with his wife of 34 years; that the arrest completely devastated Smith causing his whole life to change. His relationship with former friends and acquaintances deteriorated. These witnesses testified that Smith had become withdrawn, that he and his wife had serious domestic problems and he had lost a lot of sleep and weight. Smith testified that subsequent to his arrest and incarceration, he could not get employment and failing to meet his monetary obligations, he was forced into bankruptcy. Smith stated:

I have always tried to live a clean, Christian, devoted life. I never had been trouble in my life and didn't even know what the inside of a jail looked like. I could not believe that anyone would go to such length, especially when I had not done anything.

The deputy sheriff who arrested Smith stated:

A He was--he was very nervous and very upset over the whole thing. He Q Did he relate to you that he had asked them to come get that stuff on truck?

just kept repeating--telling me about what had happened as far as the ordeal and was very upset over it, kindly embarrassed about being arrested, you know.

A Yes, sir.

On October 18, 1986, a Prentiss County Justice Court judge bound Smith over to await the action of the Prentiss County Grand Jury on the felonious...

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