Neal v. Newburger Co

• Decision Date: 30 September 1929
• Docket Number: 27996
• Court: Mississippi Supreme Court
• Parties: NEAL v. NEWBURGER CO

123 So. 861

154 Miss. 691

NEAL v. NEWBURGER CO

No. 27996

Supreme Court of Mississippi

September 30, 1929

Division B

Suggestion of Error Overruled October 28, 1929.

APPEAL from chancery court of Yalobusha county, First district, HON N. R. SLEDGE, Chancellor.

Suit by Kate Neal against the Newburger Company. From the decree complainant appeals. Affirmed.

Affirmed.

Creekmore & Creekmore, of Jackson, and Stone & Stone, of Coffeeville, for appellant.

The mere fact that the agent believed that his principals owned the property in controversy, was not sufficient to authorize the court to hold that no exemplary damages could be awarded.

Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650.

The agent may have believed in good faith, that his principals owned the house and yet he may have been grossly negligent in so believing or acting in reckless disregard and indifference to the rights of the complainant, and not knowing or caring what the consequences of his actions would be.

Godfrey v. Meridian Light & Railway Co., 101 Miss. 565, 58 So. 53; Birmingham Water Works Co. v. Keiley, 2 Ala.App. 629, 56 So. 838; Ala. & Great Southern Railway Co. v. Arrington, 1 Ala.App. 385, 56 So. 78; Hemsteger v. Nelson, 181 Ill.App. 377; Southern Railway Co. v. Wooley, 158 Ala. 447, 48 So. 369; Y. & M. V. R. R. Co. v. Fletcher, 100 Miss. 589, 56 So. 667; Vicksburg Water Works Co. v. Dutton, 98 Miss. 209, 58 So. 537.

Punitive damages may be awarded if the damage was done by gross negligence or wilful and wanton mischief.

Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 156; Storn v. Green, 51 Miss. 103; Nappi v. Wilson (Ohio), 155 N.E. 151; C. & O. R. R. Co. v. Johns, 50 L. R. A. (N. S.) 853; Whitmer v. El Paso R. R. Co., 201 F. 193 (Fifth Circuit--Texas); Carmicheal v. Telephone Co., 39 L. R. A. (N. S.) 651; 17 C. J., page 981.

An unauthorized entry into a dwelling house and the wrongful removal of personal property therefrom, coupled with grossly offensive conduct, will warrant the imposition of exemplary damages.

Singer Mfg. Co. v. Holffodt, 86 Ill. 455; 29 Am. R. 43; Telephone & Telegraph Co. v. Cassedy, 78 Miss. 666.

When the chancellor, acting in his capacity as the court, held that punitive damages could not be awarded because the agent believed his principals owned the property, he was deciding a pure question of law. He held there was no evidence to justify the assessment of punitive damages.

The question of whether there is any evidence to justify the assessment of exemplary damages, is one of law for the court.

17 C. J., page 973; Birmingham Water Works v. Keiley, 2 Ala.App. 629, 56 So. 838; Chicago, St. Louis Railway Co. v. Scurr, 59 Miss. 456; Whitmer v. El Paso R. R. Co., 201 F. 193 (5th Circuit); Barlow v. Hamilton, 151 Ala. 634, 44 So. 657; State, ex rel., A. T. Railroad Co. v. Ellison et al., 268 Mo. 226, 186 S.W. 1075; 13 Cyc. 118; Y. & M. V. R. R. Co. v. May, 104 Miss. 422, 61 So. 449; S.E. Express Co. v. Thompson, 139 Miss. 344, 104 So. 80; Austin Mach. Corporation v. Clark Hunt Contracting Co., 140 Miss. 78, 103 So. 1; Ala. Great So. Railway Co. v. Arrington, 1 Ala.App. 385, 56 So. 78; So. R. R. Co. v. Hawkins, 121 Ky. 415, 80 S.W. 258; Lexington R. R. Co. v. Fain, 80 S.W. 463 (Ky.); So. R. R. Co. v. Goddard, 121 Ky. 567, 89 S.W. 675, 27 Colo.App. 290, 149 P. 263; Wilson v. Leonard, 71 Fla. 66, 70 So. 841; St. Petersburg R. R. Co. v. Smith, 71 Fla. 64, 70 So. 940; Rhodes Burford Co. v. Gartner, 133 Ill.App. 164.

Exemplary damages may be awarded against a principal for the torts of its agent.

17 C. J., p. 991; Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 156; Railroad Co. v. Hurst, 36 Miss. 666; N. O. G. N. R. R. v. Albritton, 38 Miss. 242; N. O. G. N. R. R. v. Bailey, 40 Miss. 395; Williams v. Planters Ins. Co., 57 Miss. 759; Southern Express Co. v. Brown, 67 Miss. 260; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Rivers v. Y. & M. V. R. R. Co., 90 Miss. 196, 43 So. 471; Gill v. Dantzler Lbr. Co., 121 So. 153; Richberger v. Express Co., 73 Miss. 161, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522.

Where a person has acquired title by adverse possession, no admission subsequently made nor recognition of title in another can divest the title already acquired

Geoghegan v. Marshall, 66 Miss. 676; Boyd v. Allen & Enoch, 102 Miss. 117; Fant et al. v. Williams, 118 Miss. 428, 79 So. 343; Off. v. Heinrichs, 124 Wis. 440, 102 N.W. 904; Tarver v. Deppen, 132 Ga. 798, 65 S.E. 177, 24 L. R. A. (N. S.) 1161; 2 C. J., pp. 256 and 257; Byers v. Sheplar (Pa.), 7 A. 182; Lowi et al. v. David, 134 Miss. 296, 98 So. 684; I. C. R. R. Co. v. Wakefield, 173 Ill. 564, 50 N.E. 1082; Rennert v. Shirk, 163 Ind. 542, 72 N.E. 546; Martin v. Martin, 107 N.W. 580 (Neb.); Lee v. Thompson, 11 So. 672; Blackburn v. Coffee, 218 S.W. 836, 142 Ark. 426; George v. Gist, 263 P. 10 (Ariz.); Cochran v. Hiden, 181 Va. 465, 107 S.E. 708; Smith v. Vermont Marble Co., 99 Vt. 384, 133 A. 355; Brown v. Fisher, 193 S.W. 357 (Tex.); Houston Oil Co. v. Pullen, 256 S.W. 321 (Texas); Harris v. Mayfield, 260 S.W. 835 (Texas); Reader v. Williams, 216 S.W. 738 (Mo.); Hoskins v. Talley, 29 N. M. 172, 220 P. 1007; Lusk v. City of Yankton, 40 S.D. 498, 168 N.W. 375; Summerfield v. White, 54 W.Va. 311, 46 S.E. 154; Journey v. Vikturek, 8 S.W. 2 (Mo.); Cassedy v. Lenahan et al., 128 N.E. 544 (Ill.); Asher v. Howard, 28 Ky. L. R. 1097, 91 S.W. 270.

Wilson, Gates & Armstrong, of Memphis, Tenn., for appellees.

In awarding or refusing punitive damages the chancellor, sitting as a court, acts both as judge and jury. His decision upon this matter is final and not subject to review.

Hines v. Imperial Navel Stores, Inc., 101 Miss. 802, 58 So. 650.

The supreme court will not interfere with the action or decision of a chancellor any more than it would with a jury in the imposition or lack of imposition of punitive damages.

In order to maintain a claim of adverse possession, the adverse possession must be made under a claim of right and it must be shown that it is hostile and not permissive.

Adams v. Guice, 30 Miss. 397; Green v. Mizelle, 54 Miss. 220, 224; Rothschild v. Hatch, 54 Miss. 561; Dean v. Tucker, 54 Miss. 488, 497; Leavenworth v. Reeves, 106 Miss. 723, 730; Dedeaux v. Bayou De Neal Lbr. Co., 112 Miss. 325.

The chancellor said that he did not think that this case made it proper for him to impose punitive damages--not that he could not or was barred from imposing punitive damages as a matter of law.

OPINION

ANDERSON, J.

Appellant filed her bill in the chancery court of Yalobusha county against appellees to recover of the latter damages, both actual and punitive, for the wrong and injury done appellant in tearing down and destroying her home in the town of Coffeeville in said county, and breaking up and otherwise injuring the furniture therein; and to establish and confirm appellant's title to lots 38 and 39 in the said town of Coffeeville (her home so destroyed being situated on the west part of lot 39). Appellees being nonresidents, and having property in Yalobusha county, the bill prayed for a foreign attachment against said property, and a sale of a sufficiency thereof to satisfy any decree for damages that might be rendered in favor of appellant. Appellees appeared and answered the bill. There was a trial on bill, answer, and proofs, resulting in a decree in appellant's favor, awarding her the sum of seven hundred dollars as actual damages for the destruction of her home and injury to the furniture therein, but denying her relief and dismissing her bill as to punitive damages; confirming her title as to the west part of lot 39, on which her home was situated, but denying her relief as to the balance of lot 39, and all of lot 38. From that decree appellant prosecutes this appeal.

Appellant assigns and argues as error the action of the court in refusing to award punitive damages for the demolishing and removal of her residence, and injury to the furniture therein. The facts necessary to develop that question are without dispute. They are substantially as follows:

Elfa Riddick, a negro woman, was a family servant of the Newburgers while they lived in Coffeeville, and probably had been for many years. In January, 1889, the Newburgers, who were the predecessors in title of the appellees, made a deed to Elfa Riddick to "the west part of lot 39 on which the house is now standing and only this portion." Elfa Riddick died about twelve years before the trial of this cause, leaving a will in which she devised the home to her husband, Jack Riddick, during his natural life, and after his death to her daughter, the appellant, in fee. Jack Riddick died about two years before the trial of this cause. The appellant and her father and mother had occupied the house standing on the west part of lot 39 for more than forty years.

Appellees put in charge and control of their lands in Yalobusha county consisting of both country and urban property, one Jones, as their agent and manager. The name of appellant's husband is Grant Neal. Jones investigated the deed records of Yalobusha county, and found that apparently the Newburgers were still the owners of all of lots 38 and 39. He was ignorant of the conveyance from the Newburgers to Elfa Riddick, and failed to find it on the deed records because it was not indexed. Jones decided, therefore, that the residence on the west part of lot 39 belonged to his principals. He conceived that it would be to the interest of his principals that the residence be torn down, and the material in it sold--that in that way lot 39 would have more value. He thereupon went to the residence on the west part of lot 39, and found it locked, but learned that it was occupied by appellant and...