Ellis v. S. Pellegrini, Inc.

• Decision Date: 18 April 1932
• Docket Number: 29952
• Citation: 163 Miss. 385,141 So. 273
• Court: Mississippi Supreme Court
• Parties: ELLIS v. S. PELLEGRINI, INC

141 So. 273

163 Miss. 385

ELLIS v. S. PELLEGRINI, INC

No. 29952

Supreme Court of Mississippi

April 18, 1932

Division A

1. APPEAL AND ERROR.

Fact finding by judge trying case without jury should not be disturbed unless manifestly wrong.

2. APPEAL AND ERROR.

Ordinarily fact finding by trial judge on conflicting evidence, in case tried without jury, should not he disturbed.

3 DAMAGES. Evidence held to warrant county judge's implied finding that defendant's truck driver either saw plaintiff's truck at curb and backed into it without warning, or backed into truck without exercising any care justifying punitive damages.

Either finding would disclose such gross negligence on part of driver of defendant's truck as to warrant belief that he acted in reckless disregard of consequences, and hence would justify imposition of punitive damages.

4. COURTS. Where evidence warranted punitive damages, question whether they should be inflicted was for county judge trying case without jury, not for circuit judge on appeal (Code 1930, section 704).

In such case, circuit court should have affirmed judgment of county court awarding punitive damages, and circuit court's judgment of reversal was reversible error.

5 DAMAGES.

Awarding punitive damages, when allowable, is discretionary with jury or judge sitting without jury.

6. COURTS.

Circuit court, when affirming money judgment of county court, where appeal bond supersedes judgment, should render judgment on bond for amount of judgment affirmed, with interest thereon from date of rendition at same rate as borne by judgment affirmed, court costs, and six per cent, damages on amount of judgment (Code 1930, sections 704, 3387, 3389).

7. APPEAL AND ERROR.

Supreme Court, reversing circuit court's judgment which reversed county court's judgment, could render such judgment as circuit court should have rendered (Code 1930, sections 704, 3378).

8. APPEAL AND ERROR.

Where Supreme Court reverses circuit court's judgment and, by rendering contrary judgment, in effect affirms county court judgment, mandate will he issued direct to county court (Code 1930, section 704).

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by George Ellis against S. Pellegrini, Incorporated. From a judgment of the circuit court, reversing a judgment of the county court and rendering judgment for plaintiff in a smaller amount than the judgment of the county court, plaintiff appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

Brunini & Hirsch, of Vicksburg, for appellant.

All motor vehicles which were designed and used for pulling and/or carrying freight shall not be operated on any public highway in this State unless they are so constructed or equipped with a mirror so attached as to afford the driver of such motor vehicle a view of the road behind him at all times.

Section 5576, Code of 1930.

One who backs his car on to a public highway is under a positive duty to look backward and to give timely warning, and he must not only look backward when he commences his operation but must continue to look backward.

Taulberg v. Andresen, 228 N.W. 528; Pease v. Bardner, 113 Me. 264; Caputo v. Wells, 111 Conn. 363, 149 A. 855; Lee v. Donnelly, 95 Vt. 121, 113 A. 542.

Wantonness consists in consciousness on the part of the person charged with it, from his knowledge of existing circumstances and conditions, that his conduct will probably result in injury and yet, with reckless indifference or disregard of the natural or probable consequences, but without intention to inflict injury, he does or fails to do the particular act.

Birmingham R. R. Light & Power Co. v. Landrum, 153 Ala. 192, 45 So. 998.

Punitive damages may be recovered not only for a wilful and intentional wrong, but for such gross and reckless negligence as is equivalent to such a wrong. A spirit of wantonness and recklessness is at war with good faith. An act done in such a spirit oftentimes is just as harmful as if prompted by malice.

Neal v. Newburger, 154 Miss. 691, 699; Birmingham R. R. Light & Power Co. v. Landrum, 153 Ala. 192, 45 So. 198, 202.

The question of punitive damages is one for the trier of fact, if there is any evidence to justify such damages.

Wilson v. Railroad Co., 63 Miss. 352; Burns v. Railroad, 93, Miss. 816.

Dabney & Dabney, of Vicksburg, for appellee.

To warrant the allowance of punitive damages, the act complained of must not only be unlawful, but it must also partake somewhat of a criminal or wanton nature. And so it is an almost universally recognized rule that such damages may be recovered in cases, and in only such cases, where the wrongful act complained of is characterized by some such circumstances of aggravation as wilfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant.

8 R. C. L., p. 582, sec. 132.

Section 6799, Code 1930, specify how costs are to be taxes on appeal from courts of justice of the peace, and it seems to us that the same rule might be applied here.

Section 682, Code 1930.

The judge of the circuit court has the right to tax the costs as he may see proper.

Section 682, Code 1930.

This suit was brought on the chancery side of the county court. Appellant should not be permitted to bring his action in a court of equity for one purpose without thereby subjecting himself to all equity practice.

OPINION

Smith, C. J.

An automobile truck belonging to the appellant was injured in a collision with a truck owned by the appellee. The appellant, claiming that the injury to his truck resulted from the negligence of the driver of the appellee's truck, sued out all attachment against the appellee under section 173, Code 1930, in the county court, joining therein a local defendant, who, he alleged, is indebted to the appellee. The appellee answered the bill of complaint denying liability, and the local defendant answered admitting an indebtedness to the appellee. The case was tried by the county judge without a jury.

The appellant sued for both actual and punitive damages, and, by agreement, the damages to his truck were fixed at fifty-three dollars, the amount spent by him for repairs thereon. A judgment was rendered for the appellant for five hundred fifty-three dollars, five hundred dollars of which, therefore, being for punitive damages. On appeal to the circuit court, the judgment of the county court was reversed, and the case was tried de novo. By agreement of counsel, the case was tried by the judge, without a jury, who rendered a judgment for the appellant for fifty-three dollars.

One of the assignment's of error is that the court below erred in reversing the judgment of the county court.

The appellee's contention in the circuit court was, and here is, that the evidence did not justify the county judge in awarding the appellant punitive damages.

The rule which should govern an appellate court in reviewing a finding of fact by a trial judge when trying a case without a jury is that such finding of fact should not be disturbed unless manifestly wrong. This cannot ordinarily be said of a finding of fact on conflicting evidence. Alabama & V. Railway Co. v. Bolding, 69 Miss. 255, 13 So. 844, 30 Am. St. Rep. 541; Kemp v. Turman, 104 Miss. 501, 61 So. 548; Aldridge v. Bogue Phalia Drainage District, 106 Miss. 626, 64 So. 377; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Aaron v. Citizens' Insurance Co., 144 Miss. 480, 110 So. 120.

The evidence before the county judge discloses that the appellant is engaged in the mercantile business in a house fronting on Washington street in the city of Vicksburg. The curbing in front of the house separating the street from the sidewalk is painted yellow, indicating that the street space opposite thereto and abutting thereon can be used for automobile parking...