Cook v. Waldrop

• Citation: 160 Miss. 862,133 So. 894
• Decision Date: 13 April 1931
• Docket Number: 29260
• Court: United States State Supreme Court of Mississippi
• Parties: COOK v. WALDROP et al

133 So. 894

160 Miss. 862

COOK v. WALDROP et al

No. 29260

Supreme Court of Mississippi

April 13, 1931

Division A

1 ANIMALS.

Officers and agents of live stock sanitary board are not authorized to seize stock for dipping under tick eradication statute without proper writ (Laws 1926, chapter 265).

2 ANIMALS. Owner's failure to protest against invasion of premises to seize live stock for dipping held not consent to invasion (Laws 1926, chapter 265).

Owner of live stock had persistently failed and refused to dip his stock, and had protested throughout against dipping. State live stock inspector and the sheriff advised him that, if he persisted in refusing to dip his stock, it could and would be taken from him by officers, and that he would be subject to criminal liability and punishment.

3. REPLEVIN. In replevin action to recover possession of live stock, testimony showing sheriff acted in accordance with statute on plaintiff's refusal to dip stock held admissible on question of punitive damages (Laws 1926 chapter 265).

Testimony admitted over plaintiff's objection related to question whether or not sheriff was directed to and did handle stock in accordance with the provisions of the tick eradication statute (Laws 1926, chapter 265), and to the refusal of the plaintiff to dip his stock. Plaintiff under declaration filed sought recovery of punitive damages for the wrongful taking and detention of his stock.

4 RELEVIN.

In replevin action, attorney's fees are recoverable by plaintiff as element of punitive damages only.

5. REPLEVIN. Where parties concerned with taking and detention of live stock for dipping acted in good faith in accordance with apparent rights under tick eradication statute, owner in replevin action could not recover punitive damages (Laws 1926, chapter 265).

Officers and agents of live stock sanitary board, who seized live stock for dipping and turned same over to sheriff for detention, acted in good faith under what they conceived to be their right and duty under the tick eradication statute (Laws 1926, chapter 265).

6. REPLEVIN.

Damages for unlawful detention of horse and mule are reasonable value of use during time owner was deprived thereof.

7. REPLEVIN. In replevin action, giving instruction precluding recovery for loss of use of horse and mule held error under evidence.

The horse and mule were actually detained by the sheriff for a period of six days, and plaintiff and his witnesses testified, without contradiction, regarding reasonable value of use of horse or mule in and about operation of farm and the cultivation of the crops thereon.

8. REPLEVIN.

Owner of live stock illegally seized for dipping may recover loss resulting directly from detention not exceeding amount laid in declaration.

9. REPLEVIN.

Owner of live stock illegally seized for dipping could recover as damages amount expended in moving stock back home.

10. REPLEVIN.

Sheriff who merely unlawfully detained live stock seized for dipping would be liable only for damages resulting directly from detention and not for injuries occurring before delivery to him (Code 1930, section 3098).

11. REPLEVIN. In replevin action against sheriff to recover possession of live stock wrongfully seized for dipping, instructions authorizing damages for all injuries resulting from unlawful taking and detention held improper under proof (Code 1930, section 3098). Plaintiffs proof tended to establish that whatever injuries to live stock were sustained resulted from carrying such stock to vat and dipping it, with which sheriff had nothing whatever to do. There was no evidence enabling jury to separate damages resulting from injury while in sheriff's possession from damages resulting from injuries received before sheriff acquired possession.

12. REPLEVIN.

Replevin action lies only against party in possession when action is begun.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.

Action of replevin by Ira Cook against W. B. Waldrop and others. From a judgment in favor of the plaintiff against the defendant named for possession and for nominal damages only, plaintiff appeals, and defendant named cross-appeals. Judgment affirmed in part, and in part reversed and cause remanded.

Affirmed in part and reversed in part.

Davis & Conner, of Columbia, and Collins & Collins, of Laurel, for appellant.

If there was a wrongful taking and detention, and this taking and detention was characterized by fraud, malice, oppression, or wilful wrong, punitive damages may be awarded.

Heard v. James, 49 Miss. 236.

The taking and detention was unlawful and oppressive as it was taken without a writ.

D'Aquilla v. Anderson, 120 So. 434; Byrd v. Welch, 91 So. 568.

Plaintiff was entitled to recover damages for the loss of the use of his team and for the loss of the use of his cows.

23 R. C. L., page 912, sections 74 and 75.

The appellant was entitled to damages for the expense of taking his cows and horses back to his home because it was the duty of the appellees to return them to plaintiff and he failed and refused to do this.

23 R. C. L., section 76, page 913.

It was error to give the following instruction: The court instructs the jury for the defendant, W. B. Waldrop, that in this case the plaintiff, even though you should find for him, is not entitled to attorney's fee, nor is he entitled to any loss of time or expense in attending court.

Ainsworth v. Smith, 127 So. 771.

Rawls & Hathorn, of Columbia, for appellee.

It is only in cases where punitive damages are allowed that attorneys fees can be allowed, and that is only in those cases showing fraud, malice, oppression or wilful wrong.

Taylor v. Morton, 61 Miss. 24; Thornton v. Gardner, 134 Miss. 485, 99 So. 131; Mars v. Germany, 135 Miss. 388, 100 So. 23.

Appellant's contention that the court erred in directing a verdict for the other appellees than Waldrop is without merit. The evidence shows, without conflict, that at the time the writ of replevin was sued out and served, the appellee, Waldrop, had exclusive possession and control of the stock. Replevin lies alone against the party in possession at the time the action is begun.

Ainsworth v. Smith, 157 Miss. 202, 127 So. 771.

As to any damage or injury to the stock, before it was delivered to the sheriff, certainly the sheriff cannot be held responsible. The statute itself makes a distinction between the unlawful taking and detention, and the unlawful detention.

Section 3098, Code 1930.

The damages, in case of a wrongful taking, which in its inquiry might involve many collateral questions of tort and circumstances of aggravation, might be much greater in amount than the damages which could be recovered in a case merely of the wrongful detention of the property.

Newell v. Newell, 34 Miss. 399.

The burden was on appellant to show what injury or damage was done his stock while in possession of appellee, and his failure to do so makes the appellee, at most, only liable to him for nominal damages.

King v. Ruth, 136 Miss. 380, 101 So. 500; Hightower v. Henry, 37 So. 745.

Punitive or exemplary damages not allowable to either party in replevin in the absence of fraud, malice, gross negligence, or oppression.

Taylor v. Morton, 61 Miss. 24; Thornton v. Gardner, 99 So. 131; Mars. v. Germany, 135 Miss. 389; Bacot v. State, 130 So. 282.

The entering upon one's premises is not a trespass per se, but the question of whether or not it is even a civil trespass is one of fact, and this issue, of fact, should be submitted to the jury unless the proof should be undisputed either that the entry was made over his protest or without his knowledge and consent.

The case of D'Aquilla v. Anderson, 120 So. 434, and Ainsworth v. Smith, 127 So. 771, announce a rule of law and construction in Mississippi that stands absolutely alone, when applied to the enforcement of the police power of the state, and contrary to the holding of every state, that has passed upon similar questions, and there is a vast difference in the facts in this case and the D'Aquilla and Ainsworth cases, supra.

The most that was held in the D'Aquilla case and the Ainsworth case, was that the officer cannot go upon the premises of the owner of the infected or quarantined stock, over the protest and against the will of the owner of the premises, and seize it.

Supporting the right generally to seize stock, offending against the police powers of the state and without writ or warrant, we cite the following cases.

Julienne v. City of Jackson, 69 Miss. 37; Abbott v. State, 106 Miss. 340; McMillan v. State Live Stock Sanitary Board, 119 Miss. 500; Byrd v. Welch, Sheriff, 128 Miss. 839; Cooper v. Martin, 141 Miss. 756; Hawkins v. Hoye, 108 Miss. 282; Bonnett v. Brown, 125 So. 427.

Every state that has had to combat the Texas fever tick has had a law similar to our own, which authorizes officers to enter premises and summarily seize stock, infected or in any wise offending against the laws or regulations of the Live Stock Boards, and that without writ, warrant or other process from any court.

Alabama, section 764, Code of 1907; State v. McCarty, 59 So. 543; Warren v. Cameron (Ala.), 74 So. 949; Arkansas, section 19 of Act of 1907; Section 40, Act 279 of 1919; Section 16, chapter 7345, Laws of Florida, 1917; Baily v. Pelt, 82 So. 789; Whitaker v. Parsons, 86 So. 247.

If rights of individuals are violated by arbitrary, unreasonable, or illegal action in applying the statute, a remedy is available in due course of legal proceedings.

Gill v Wilder, 116 So. 870; Section 6 of Georgia Acts 1909; Rowland v. Morris, 118 S.E. 389; Laws of the State of Kentucky, approved March 20, 1918; Section 11 of...