Pitts v. Mississippi Power & Light Co.

• Decision Date: 23 November 1936
• Docket Number: 32387
• Parties: PITTS v. MISSISSIPPI POWER & LIGHT CO. et al
• Court: Mississippi Supreme Court

170 So. 817

177 Miss. 288

PITTS v. MISSISSIPPI POWER & LIGHT CO. et al

No. 32387

Supreme Court of Mississippi

November 23, 1936

Division B

Suggestion Of Error Overruled December 7, 1936. Suggestion Of Error Overruled January 4, 1937.

APPEAL from the circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Suit by T. M. Pitts against the Mississippi Power & Light Company and the Leland Ice & Cold Storage Company. From an adverse judgment, plaintiff appeals. Affirmed as to the second named defendant; reversed and remanded as to the first named defendant.

Affirmed as to Ice Company; reversed and remanded as to Power Company.

Cooper & Thomas and B. B. Allen, all of Indianola for appellant.

That Mr. Pitts had a contract with the power company for another year cannot be doubted, although a new one had not been actually drawn up and signed, he had been assured by the power company that just as quickly as they could get through lobbying with the Legislature and get them out of Jackson the contract would be drawn up and sent to him for his signature carrying the same conditions and provisions as the old one. Mr. Pitts acted on the strength of that assurance and outlaid divers sums of money so that the power company is now estopped from denying the existence of this contract. Then as a matter of law, Mr. Pitts had remained in possession of said premises after the owner of the plant, and after the power company had accepted daily compensation for the use of said plant there arose by operation of law a new contract similar in terms and provisions to the contract which had just expired and which it could not terminate during the year. These facts were all well known to the Leland Ice and Cold Storage Company.

24 Cyc. 1334; Richardson v. Neblett, 84 So. 695; Wachenfeld v. Favre, 119 So. 911; Thomas Hinds Lodge v. Presbyterian Church, 103 Miss. 130, 60 So. 66; Love v. Law, 57 Miss. 596; Usher v. Moss, 50 Miss. 208; Hamilton v. Federal Land Bank, 167 So. 642.

The appellees conspiring together each knowing full well the rights of the appellant to occupy said building and to engage in the ice business in city of Indianola for another year, period ending March 31, 1935, entered into a contract whereby the power company sold its good will, dissembled its plant in Indianola, caused the Breisch interest to electrify its equipment and accepted of the Breisch interest one dollar and fifty cents per ton on all ice produced or distributed in Indianola, Mississippi. Under the terms of this contract the Breisch interest stifled competition and ruthlessly put Mr. Pitts out of the ice business in Indianola, Mississippi.

Joint tortfeasors are both jointly and severally liable, and may be proceeded against either simply, jointly or individually, or all combined.

Bailey v. Delta Elec. Light Co., 86 Miss. 634, 38 So. Bailey v. Delta Elec. 354; Miller, State Tax Collector, v. Phipps, 137 So. 479.

This suit is not based upon a contract although it may have been based upon a contract had appellant been financially able to make the necessary injunction bond, but is based upon tort. The appellees conspired to put appellant out of the ice business in Indianola. The record is teeming with evidence of the conspiracies and the sordid motives which prompted both appellees to engage in such conspiracy.

12 C. J. 544, 545 and 546; Wesley v. Native Lbr. Co., 53 So. 346, 97 Miss. 814; Globe & Rutgers Fire Ins. Co. v. Firemen's Fund Fire Ins. Co., 52 So. 454, 97 Miss. 148.

In making proof as to the existence of a conspiracy it is seldom, if ever, possible to make this proof by direct and positive evidence in view of the conduct of the conspirators in seeking to cover up their tracks and to make more certain the concealment of their wrongs and consequent escape from punishment therefor. And so the courts are quite liberal in the reception of any and all evidence of secondary and indirect nature which tend in the slightest degree to cast light upon the wrongs complained of.

12 C. J. 633, 634.

We are familiar with the doctrine that it is necessary to show actual damages before punitory damages are recovered, but the courts hold that it is only necessary to show the breach of a duty and that the certainty of damages proved refers to the certainty of the breach and not to the exactness of calculating injuries that flowed as a result of the breach.

17 C. J., page 756, sec. 90, pages 759, 760 and 761, sec. 91, pages 910, 911, 932 and 913, sec. 199 and page 914, sec. 200; Delta Table & Chair Co. v. Y. & M. V. R. R. Co., 105 Miss. 861, 63 So. 272; Y. & M. V. R. R. CO. v. Consumer's Ice & Power Co., 109 Miss. 43, 67 So. 657; Neal v. Newburger Co., 123 So. 861; Lay v. Great Southern Lbr. Co., 79 So. 822.

Under the facts in this case now before the court the jury should be authorized to award punitory damages including attorney's fee against the appellees for the wilful, bold and oppressive manner in which they conspired together and which in actuality violated the rights of the appellant, and put him out of the ice business in Indianola, and crushed a business which he had spent seven long tedious years in building up. 17 C. J., pages 977-979, sec. 273.

In addition to asking for damages that flowed to him as a direct result of the tort and wrongdoings on the part of the appellees in the formation and execution of the conspiracy above referred to the statutes of this state provided for a penalty of five hundred dollars enuring to the benefit of anyone injured as a direct result of the unlawful combination and conspiracy referred to in this and similar cases.

Sections 3436, 3437 and 3440, Code of 1930.

Moody & Johnson, of Indianola and Green, Green & Jackson and A. M. Nelson, all of Jackson, for appellee, Mississippi Power & Light Company.

Pitts had no contract with the power company.

The old case of Usher v. Moss, 50 Miss. 208, of course, established the rule that has long prevailed that where a tenant continues to occupy farm property which he has held under an annual lease without a definite time of termination, such tenant enters into another and new term for another annual period at the same rate of rental and under the same terms and conditions. This court, however, pointed out in the case of Copiah Hardware Co. v. Johnson, 135 Miss. 358, 100 So. 31, that where the contract itself specified a definite time of termination, the rule suggested in Usher v. Moss, does not apply.

Even though Mr. Pitts had a lease contract on the storage room, which we submit the contract does not give him, yet, by the express terms of the contract, the contract was terminated on March 31, 1934. The mere fact that he thought he had a contract is not controlling, and the fact that he remained in possession of the premises until May 1, 1934, could not in any sense of the word renew this contract for the sale of ice for another twelve-month period. The authorities cited by the appellant are not apposite to the facts presented.

The contract here is one of sale, with permissive use of certain property as an incident to the sale and was not a contract of lease.

55 C. J. 41, Sales, sec. 8.

The fact that the parties by their acts and declaration indicate an intention to treat a written contract as continuing after the time prescribed in it for its termination will not have the effect of continuing such contract, although it may show a subsequent oral agreement on the same terms.

13 C. J. 626, sec. 692; Echols v. N. O. J. & G. N. R. R. Co., 52 Miss. 610.

If the contract for the sale of ice Was extended by the continued operation thereunder, then necessarily the court, in granting the peremptory instruction found that the power company had the right to terminate the contract as extended, as of May 1, 1934, and that such termination was at a reasonable time and under the above authority, this court will give strong effect to the finding of the lower court on this particular point.

New State Ice Co. v. Liebmann, 285 U.S. 262, 76 L.Ed. 747; Head v. Amoskeag Mfg. Co., 113 U.S. 9, 28 L.Ed. 889, 5 S.Ct. 441; State v. Edwards, 86 Me. 102, 25 L.R.A. 564, 41 Am. St. Rep. 528, 29 A. 947; Chickasha Cotton Oil Co. v. Cotton County Gin Co., 74 A.L.R. 1070, 40 F.2d 846; Clark v. Nash, 198 U.S. 361, 49 L.Ed. 1085, 25 S.Ct. 676, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold Min, Co., 200 U.S. 527, 50 L.Ed. 581, 26 S.Ct. 301, 4 Ann. Cas. 1171.

If the business of manufacturing ice is of the same nature as that of a grocer, of a dairyman, a butcher, a baker, a shoe-maker, a tailor or other enterprise of similar nature, then we submit that the Mississippi Power & Light Company had the same right to dispose of its ice business in Indianola as any of these other tradesmen would have had the right to do under similar circumstances. The proof shows that this ice plant of the power company had been operated at a loss for several years, and the power company had operated the plant only as an incident to its other business, that of selling electric current. It was under no contract with Mr. Pitts at the time it sold its good will and going value of the ice plant to the Leland Company. It owed to Mr. Pitts no duty whatever in connection with the continuous operation of the plant, and having no contract with Pitts, owing him no duty, it was not liable to him because he assumed that the power company might some day contract with him. We submit, therefore, that there was no contract between Mr. Pitts and the Power Company that was breached by the combination and conspiracy of the Power Company and the Leland Company, and that for this reason the court was correct in granting a directed verdict for the defendants.

There was no conspiracy or combination to violate the anti-trust...