Gardner v. Heflin
| Decision Date | 27 May 1940 |
| Docket Number | 34180 |
| Citation | 196 So. 256,188 Miss. 790 |
| Court | Mississippi Supreme Court |
| Parties | GARDNER et al. v. HEFLIN |
APPEAL from the circuit court of Sharkey county, HON. R. B ANDERSON, Judge.
Action by Robert R. Heflin against Mrs. Sophia Gardner and others for alleged unlawful eviction and deprivation of possession of leased property, and for damages to the plaintiff's furniture and household effects, and for loss of a government check which plaintiff allegedly would have received for the crop year had he remained in possession. From a judgment for the plaintiff, the defendants appeal. Reversed and remanded.
Reversed and remanded.
W. D Womack, of Belzoni, and L. F. Easterling, of Jackson, for appellants.
The court erred in granting each instruction for the plaintiff, especially as to the damages to be recovered.
Monticello Plywood Box Co. v. Haney (Miss.), 142 So. 497; B. Bluethenthal Co. v. McDougal (Miss.), 142 So. 13; Jones v. Griffin, 126 So. 35, 157 Miss. 256; Leek Milling Co. v. Langford, 33 So. 492, 81 Miss. 728; Beach v. Johnson, 59 So. 800, 102 Miss. 419; Hightower v. Henry, 37 So. 745, 85 Miss. 476; Chair Co. v. Railroad Co., 63 So. 272, 105 Miss. 861; Crystal Ice Co. v. Holliday, 64 So. 658, 106 Miss. 714; Railroad Co. v. Consumers Ice Co., 67 So. 657, 109 Miss. 43; Weissenger v. Implement Co., 21 So. 757, 75 Miss. 64.
The court erred in refusing Instruction Number 1, asked by the defendants.
Timber Lake v. Theyer, 44 So. 446, 71 Miss. 279; Butt v. Williams (Miss.), 15 So. 130; Robinson v. De Long, 79 So. 95, 118 Miss. 280; Fire Ins. Co. v. Williams, 155 So. 199, 149 Miss. 123; Bond v. Damon (Miss.), 97 So. 3; Floyd v. Pugh (Miss.), 77 So. 323; Mortimer v. Hannah, 82 Miss. 654, 35 So. 159.
Instruction No. 1 tells the jury that if they believe from the evidence that Mr. Gardner, agent for Mrs. Gardner, while acting in the scope of his employment, "went upon the said land and evicted the plaintiff therefrom and placed another upon and in charge of the said lands, it is your sworn duty to find for the plaintiff, unless you believe from the evidence that plaintiff had abandoned his lease." This instruction is erroneous in excluding from the jury the necessary elements that the plaintiff, in order to recover, must have been unlawfully dispossessed.
It seems to us plainly that the instruction above mentioned excluded from the jury the question whether or not the appellee had complied with the terms of his contract and whether or not he was ready, willing, and able to operate the place and to carry out the provisions of the contract for the year 1939. If he was not, if he had breached this contract, and we submit that his own testimony showed that he had breached it because he did not plant some thirty-five acres of the land and did not clean the ditches and fence rows, he could not recover.
The verdict of the jury is contrary to the evidence.
Harris v. Holliday, 4 How. 338; Tunstall v. Walker, 10 Miss. 638; McQueen v. Bostwich, 12 S. & M. 604; Young v. Wilson, 24 Miss. 694; Jones v. Pierce, 2 Miss. Dec. 695; Myers v. Farrell, 47 Miss. 281; Railroad Co. v. La Blanc, 74 Miss. 626, 21 So. 748; Bamburger v. Gorden, 2 Miss. Dec. 111.
R. Leon Bass, of Belzoni, and John B. Gee, of Rolling Fork, for appellee.
The appellant is bound by the established rule of law that when a person holding lands and premises under a lease that is in operation is wrongfully and forcefully evicted against his wishes and without any notice from the landlord who caused the eviction and is denied the right of access and re-entry, then the landlord is liable to the tenant who holds the lease for both actual and exemplary damages.
Lay v. Great Southern Lbr. Co., 118 Miss. 636, 79 So. 822.
Motion for a new trial is necessary.
Coccora v. Vicksburg Light & Traction Co., 89 So. 257, 126 Miss. 713; Southern Ry. Co. v. Jackson (Miss.), 49 So. 738.
Objections and exceptions to instructions are necessary.
Southern Craft Corp. v. Parnell, 65 F.2d 785.
Assignment that verdict was contrary to law and evidence should be particular and specific.
Nickey v. State ex rel. Mitchell, 147 So. 324, 165 Miss. 157; Eaton v. Hattiesburg, 117 So. 534, 151 Miss. 211.
To complain in error that verdict was excessive there must be motion for a new trial.
Standard Coffee Co. v. Carr, 157 So. 685, 171 Miss. 714; Watson v. Holiman, 153 So. 669, 169 Miss. 585.
An entry on land in the peaceful possession of another is a trespass, without regard to the amount of force used nor the means used, nor the amount of the damage done. No person has the legal right to invade the premises of another and take property against the other's wish, even though he have the right to the legal possession of the property.
26 R. C. L. 938, par. 10; D'Aquilla v. Anderson, 120 So. 434, 153 Miss. 549; State Constitution and Fed. Constitution.
Appellee, Heflin, sued appellants, Mrs. Sophia Gardner and D. S. Skaggs, for damages, and recovered a judgment against them for $ 800; and appellants prosecute an appeal here.
By the declaration, in substance, he alleged that he was lawfully in possession, as lessee, of 250 acres of land, by a written lease executed by the owner, Mrs. Sophia Gardner, to R. V. Goode, and by Mrs. Gardner and Goode, in writing, the lease was assigned to him. The lease was to be in effect for the years 1938 and 1939.
Heflin alleged that: In November, 1938, Mrs. Gardner and Skaggs wrongfully took possession of the dwelling house on said land by entering the dwelling house thereon and evicting him therefrom; they deprived him of the use and possession of said lands for the remainder of the year 1938 and the entire year of 1939; the eviction occurred while he was temporarily away from the place; a part of his furniture and household effects were left by him in the house while he was temporarily away from home; and that the furniture and household effects were greatly damaged. He further alleged that by the eviction and unlawful deprivation of the land, he lost and was damaged in the amount of a Government check which he would have received for the crop year 1939 amounting to $ 500.
Heflin's declaration was in three counts. By the first count, he sued for the unlawful eviction and deprivation of the possession of the property. By the second count, he sued for the damage to his furniture and household effects. And, by the third count, he sued for the loss to him of a Government check amounting to $ 500 for the year 1939.
On behalf of the appellee, the evidence shows that: The lease and a written assignment of it were made to him for the years 1938 and 1939; he went into possession thereunder and made a crop of cotton of approximately fifty-two bales during that year; in the fall, he temporarily went to Louise, Mississippi, some distance from the farm and carried a part of his furniture, in order to assist his father in conducting the latter's mercantile business; he left a considerable portion of his furniture and household effects in the house, with the doors locked; he left a number of mules and his farming implements in the charge of one of his tenants; and that he made several visits on weekends and remained overnight in the house. During the interim, he returned to the house and found Skaggs occupying it with his family, and notified Skaggs that he had rented the place from the wrong person, that he, Heflin, was the man from whom to rent it; and he intended to return to the place in January and pursue his farming operations, and that he had $ 1, 000 in cash, proceeds of a Government check which he had received, with which to conduct such operations for the year 1939.
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Aldridge v. Park
...the evidence he has sustained thereby, not in excess of the amount sued for." This same instruction in substance was condemned in the Gardner case, supra. The in that case said: "The instruction granted by the court, under these circumstances, was fatally erroneous. It left the door wide op......