New Orleans, B.R., V. & M.R. Co. v. Brown

• Citation: 1 So. 637,64 Miss. 479
• Court: United States State Supreme Court of Mississippi
• Decision Date: 07 March 1887
• Parties: NEW ORLEANS, BATON ROUGE, VICKSBURG AND MEMPHIS RAILROAD COMPANY v. J. H. BROWN

1 So. 637

64 Miss. 479

NEW ORLEANS, BATON ROUGE, VICKSBURG AND MEMPHIS RAILROAD COMPANY v. J. H. BROWN

Supreme Court of Mississippi

March 7, 1887

APPEAL from the Circuit Court of Coahoma County, HON. J. H. WYNN Judge.

J. H Brown brought this action of trespass against the New Orleans, Baton Rouge, Vicksburg and Memphis Railroad Company. It appears that in 1884 the defendant secured by condemnation proceedings a right of way through the plantation of plaintiff and paid him therefor about one thousand five hundred dollars. In 1884 the defendant, in order to secure dirt for uses on other parts of its road, began digging dirt from its right of way through plaintiff's plantation, and in some instances dug as deep as ten feet and in others it exceeded its right of way from a few inches to two and three feet.

On the trial plaintiff introduced evidence which tended to show that his plantation was damaged from the digging of the pits because the soil was sandy and washed and caved from his plantation into the pits; that the appearance of the place was also injured; that the health of the plantation was injured by the water standing in the pits; that he could not cultivate his land up near to the pits, as his mules were frightened thereby, and that his right of way across the railroad through his place was seriously interfered with--all of which greatly depreciated the value of the plantation. The plaintiff further showed that when the excavations were being made, one O'Brien, foreman of the hands employed by the company, said "that he was going to take enough dirt out of that pit to overpay what had been assessed to Brown" for the right of way. Under the instructions given for the plaintiff the jury was authorized to assess punitive damages against the defendant. The jury awarded the plaintiff two thousand one hundred and sixty dollars as damages for the injury suffered. The defendant appealed.

Judgment reversed.

W. A Percy, for the appellant.

The punitive damage instructions were all that there was upon which to base a verdict for anything more than nominal damages, and it is unnecessary and would be inappropriate to discuss any other feature of the case. A balder case for punitive damages was never brought into court.

I find no case in our reports where the right to punitive damages has ever been asserted or adjudged in actions for trespass to real estate. But no doubt under special circumstances they are recoverable. It is said by a recent writer that in such case "the act in question must be recklessly violent oppressive, wanton, or malicious." 3 Sutherland on Damages 381.

If a person maliciously destroy one's ornamental trees and shrubbery, or follow up an unlawful entry by willful or malicious destruction of personal property, damages by way of punishment would be properly allowable. Ib. 390.

But under any circumstances, whether of tort to the person or property, the act complained of must be characterized by willfulness, fraud, malice, or oppression, and where the proof fails to show anything that will warrant an imputation of willfulness, recklessness, or rudeness, it is the duty of the court to inform the jury that they cannot inflict punitive damages. Storm v. Green, 51 Miss. 103; Ry Co. v. Scurr, 59 Miss. 456; R. R. Co. v. Jarrett, 59 Miss. 470.

In the latter case, although the judgment as entered might have been supported as warranted by the evidence as compensatory damages, the court reverses because it did not appear that that amount would have been given but for the punitive damage instruction.

It is perfectly easy to understand how counsel could argue from the man O'Brien's expression, and how the jury might conclude from it, that because the plaintiff had been paid for the right of way, therefore the railroad company was making their excavations in his field, and that therefore they were maliciously made.

But it is difficult to understand, in the light of R. R. Co. v. Scurr, supra, and the other decisions, how a court could have been induced upon the evidence in this case to give instructions that would admit of such argument or such conclusion.

Cutrer & Cutrer, for the appellee.

1. The appellant must...