Ouzts v. Carroll

• Decision Date: 09 December 1940
• Docket Number: 34267
• Citation: 199 So. 76,190 Miss. 217
• Court: Mississippi Supreme Court
• Parties: OUZTS et al. v. CARROLL et al

199 So. 76

190 Miss. 217

OUZTS et al. v. CARROLL et al

No. 34267

Supreme Court of Mississippi

December 9, 1940

Motion To Correct Judgment Sustained. February 10, 1941.

APPEAL from the circuit court of Quitman county, HON. WM. A. ALCORN JR., Judge.

Suit by Ernest Carroll against Mattie Carroll and Bill Yandell in replevin to obtain possession of household goods and other personal property. From a judgment for defendants, O. L Ouzts and another, sureties on plaintiff's replevin bond appeal. Reversed and judgment directed in favor of the sureties.

On motion to correct judgment costs were retaxed.

Reversed and judgment here accordingly.

Gore & Strong, of Marks, for appellants.

Punitive damages are never awardable as compensation, but only by way of punishment to the offender and as a warning to others.

17 C. J. 968-9; Y. & M. V. R. R. Co. v. May, 104 Miss. 422, 61 So. 449; Sec. 3091, Code of 1930.

Punitive damages cannot be awarded in a replevin suit unless the plaintiff was actuated by malice, ill-will, etc., in suing out of the writ.

Cowden v. Lockridge, 60 Miss. 385; Carraway v. Wallace (Miss.), 17 So. 930; Taylor v. Morton, 61 Miss. 24; Thornton v. Gardner, 134 Miss. 485, 99 So. 131; Mars v. Germany, 135 Miss. 387, 100 So. 23; Mars v. Hendon, 178 Miss. 157, 171 So. 880, 173 So. 286.

Punitive damages are not generally recoverable against sureties on bonds, if breached by the principal, even though the principal was actuated by malice, ill-will, etc., in the breach thereof.

17 C. J. 988-9; Lizana v. State, 109 Miss. 464, 69 So. 292; Moore v. Lowrey, 74 Miss. 413, 21 So. 237; National Surety Co. v. Trustees of Runnelstown Con. School, 146 Miss. 277, 111 So. 445; Cooper v. U.S. F. & G. Co., 186 Miss. 116, 188 So. 6; Boutwell v. Marr, 71 Vt. 1, 76 Am. St. Rep. 747; Annotation to Welborn v. Dixon (S. C.), 3 Ann. Cas. 407.

The domicile of the wife is that of the husband, and if she refuses to go and live with the husband at his domicile, during cohabitation, she cannot complain of damages sustained by reason of her refusal to live with him at the domicile of his selection and choice.

19 C. J. 414; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 531; Suter v. Suter, 72 Miss. 345, 16 So. 673.

P. L. Denton, of Marks, for appellees.

Ernest Carroll and Mattie Carroll were not man and wife. Even though they be considered as man and wife for the purpose of this suit, it is certainly true that no husband has a right to take away from her the separate property of his wife.

In construing statutory bonds, the law writes in all stipulations or obligations required by the statute, and the statutes of Mississippi in regard to plaintiff's bond in replevin require that the plaintiff shall enter into bond with ". . . sufficient sureties in double the value of the property to be ascertained by the valuation of the officer, conditioned that he will prosecute the writ to effect and without delay make return of the property to defendant, if return thereof be adjudged, and pay the defendant such damages as he may sustain by the wrongful suing out of the writ and also such costs as may be awarded against him . . ."

Sec. 3089, Code of 1930.

The damages of attorney's fees were incurred by the wrongful suing out of the writ. The terms of the engagement are general and unrestricted, and when the sureties executed the bond they had in view the guaranty of the obligations the principal, Ernest Carroll, had assumed when he wrongfully sued out the writ.

Sec. 3091, Code of 1930; 21 R. C. L. 975, sec. 27.

If the suing out of the writ of replevin by appellant was a wilful wrong on his part, an act of fraud, malice or oppression, then the defendant is entitled to punitive damages.

Smith Chevrolet Co. v. Finch, 150 Miss. 854, 117 So. 258; Thornton v. Gardner, 134 Miss. 485, 99 So. 131.

In cases where the jury, as reasonable men, are entitled to infer from the testimony in the case that the plaintiff acted with wilful wrong, with malice, wanton disregard of the defendant, or with the intent to oppress, the jury can and should then return a verdict awarding punitive damages against the plaintiff in replevin. The jury could so infer from the fact that the affidavit was false in two respects; first, that the plaintiff owned the property; second, that it had been taken from his possession within thirty days.

Mars v. Hendon, 178 Miss. 157, 171 So. 880, 173 So. 286.

OPINION

McGehee, J.

This is a suit brought in replevin by Ernest Carroll during the month of December, 1938, in the County Court, to obtain the actual possession of the household goods and other personal property, consisting of corn, groceries, chickens, ducks, dogs, etc., and all of which was alleged in the affidavit to be wrongfully detained by the wife of the plaintiff and by Bill Yandell, the manager of the plantation on which Carroll and his wife had resided during that year, and where she still remained. From a judgment in favor of the defendants "for 1.00 in actual damages and an attorney's fee of $ 75.00, " rendered by the County Court and affirmed by the Circuit Court, the sureties on the plaintiff's replevin bond alone prosecute this appeal.

After having settled his account for the year 1938, it appears from the proof that Ernest Carroll applied to the plantation manager for money with which to meet a payment on his sewing machine, and which request was refused. Carroll had already agreed to make a crop on this plantation again for the year 1939 but became dissatisfied at the plantation manager's refusal to assist him in the manner stated, and he thereupon found a new location on a plantation of one L. A. Ouzts, who sent his truck to move the household goods and other personal property in controversy. Mr. Ouzts had ascertained in advance that Ernest Carroll had obtained some additional advances subsequent to the settlement of the 1938 account, the amount of which advances was tendered by him when the truck went to move the property. It appears that Mattie Carroll, the wife of Ernest, decided not to follow him to the new location upon being advised by an employee on the plantation where she had remained pending the proposed removal, and that the defendant, Bill Yandell, being unwilling to lose these tenants, returned to Mr. Ouzts the tender of payment for the advances, along with the empty truck. Thereupon, Ernest Carroll, still desiring to move to the new location where he had agreed to make a crop with Mr. Ouzts for the year 1939, sought advice as to how he might obtain possession and custody of the household goods and other property, and also the removal of Mattie and her children by her former marriage to the new location. He was then directed by Mr. L. A. Ouzts to an attorney at Clarksdale for legal advice. Carroll related the facts...