Price v. Haney
| Decision Date | 28 October 1935 |
| Docket Number | 31866 |
| Citation | 163 So. 684,174 Miss. 176 |
| Court | Mississippi Supreme Court |
| Parties | Price Et Al. v. Haney. |
(Division B.)
In replevin for truck which was held by state highway patrolman upon discovery that plaintiff was hauling load exceeding that allowed by privilege tax paid by plaintiff, burden was upon plaintiff to show special permit, if one existed.
Highway patrolman properly seized and impounded truck which was used to haul load exceeding that allowed by privilege tax paid by truck owner, pending necessary proceedings to enforce payment of additional license tax, where record did not show unreasonable delay in taking legal steps to enforce such payment (Laws 1934, chapter 126, sections 19, 21).
ON SUGGESTION OF ERROR. (Division B.) Dec. 9, 1935. No. 31866.
1. REPLEVIN. Only issue permissible in replevin is general issue. 2. EVIDENCE. Where party who has not general burden of proof possesses positive and complete knowledge concerning existence of facts which party having burden of proof is called upon to negative, or where evidence to prove fact is chiefly within his control, party who has not general burden of proof has burden to produce such evidence, although obliged to go no further than necessity requires.
EDG. M. LANE, Judge.
Action by J. S. Haney against Joe S. Price and another. From a judgment for the plaintiff, the defendants appeal. Judgment reversed and rendered.
On suggestion of error. Suggestion of error overruled.
W. W. Pierce, Assistant Attorney-General, for appellants.
The trial court erred in overruling appellants' motion for a directed verdict: (1) because the evidence does not show that Joe S. Price, one of the appellants, was in the actual possession of the truck at the time the replevin suit was instituted; and (2) because the court will not lend aid to a party litigant to relieve him from the consequences of his own wrongdoing.
Griffin v. Lancaster, 59 Miss. 340; Vaughn v. Huff, 99 Miss. 110; Cook v. Waldrop, 160 Miss. 862; Ainsworth v. Smith et al., 157 Miss. 202.
Before the jury would be warranted in awarding punitive damages to the appellee, the jury must find from the evidence that the appellant's conduct was in a wanton, willful and reckless disregard of appellee's rights.
Burns v. R. R. Co., 93 Miss. 816; Railroad Co. v. Burke, 53 Miss. 200.
A trial court may instruct a jury if they believe from the evidence that the defendant's acts were willful, wanton or so grossly negligent as to amount to willfulness, then they can award punitive damages. However, in the case at bar, the court did not observe that rule but peremptorily, on conflicting testimony, instructed the jury that it might find punitive damages without reference to first finding that the appellant's acts were willfully and wantonly done, or so grossly negligent as to amount to willfulness.
Railroad Co. v. Cole, 113 Miss. 898; Burns v. R. R. Co., 93 Miss. 816.
Under the facts shown by the record the appellee's damages, if any, were brought about by reason of his own illegal acts and that being true, he was not entitled to any damages or to the aid of the court in any respect.
Section 25, chapter 126, Laws of 1934; Section 5621, Code of 1930.
It is clear from the statute that a person operating a motor vehicle without a tag thereon for the proper tonnage and without paying the required privilege license tax as required by the provisions of house bill No. 3 of the acts of the Legislature, Extraordinary Session 1932, and chapter 126 of the General Laws of Mississippi, 1934, is guilty of a misdemeanor.
The law is well settled in Mississippi that the court will not lend aid to a party who grounds his action upon an immoral or illegal act.
Western Union Tel. Co. v. McLaurin, 108 Miss. 273, 66 So. 739; 1 Cooley on Torts, page 172.
The appellee here cannot avoid the fact that Greer, appellant's employee, was interfering with him (Haney) because he (Haney) was violating the law by not having procured a proper privilege license for his motor vehicle to haul thereon on the public highways of this state a three ton load.
The right to use a motor vehicle on the public highway is a privilege and not a vested right.
Packard v. Blanton, 264 U.S. 140; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.
Appellants are not liable to appellee for any damages he may have suffered by reason of having been detained because he was violating the law.
Hoffman v. McMullen, 83 F. 372, 45 L. R. A. 410.
The appellant, Joe S. Price, State Auditor, and E. H. Greer, patrolman, were authorized by law to enforce the provisions of the statute with reference to licensing and operating motor vehicles upon the public highways of the state.
Section 19, chapter 126, General Laws of Mississippi 1934; Chapter 138, Code of 1930; Sections 5582, 5583 and 5584, Code of 1930; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251. Hannah & Simrall, of Hattiesburg, for appellee.
Greer was acting under the direction and carrying out the instructions of Joe S. Price; and was doing this for the purpose of collecting the tax which the law made it the duty of the said Joe S. Price to collect.
While Joe S. Price did not have the actual possession of the said truck, he certainly had the constructive possession of it, because Greer was holding the truck solely and only as the representative of Price.
5 C. J. 443; Griffin v. Lancaster, 59 Mass. 340; Vaughn v. Huff, 99 Miss. 110, 54 So. 837; Furst v. Pease, 52 So. 257.
While section 7 of chapter 126, Laws of 1934, makes the maximum load carried the measure of the tax to be paid, said section also contains an exception or proviso which expressly authorizes the motor vehicle operator to buy a tag sufficient to cover the load ordinarily carried, and then secure a temporary permit for an unusual or extraordinary trip such as Haney was making. The appellants in this case made no pretense at showing that Haney was not operating under this special permit.
Counsel predicates his argument and contention on the theory that appellant Price had the right to seize and detain the motor truck of appellee Haney for the payment of such taxes as appellant Price conceived Haney to be due without first resorting to the courts to secure possession of the said truck and without giving Haney an opportunity to be heard.
This theory has been so uniformly condemned by this court until it would be a waste of time and an imposition on the court to indulge in an extended argument.
Holloway v. Jordan, 154 So. 340.
The record in the case at bar absolutely and wholly fails to disclose that appellee Haney was due any additional tax.
There is no provision in section 5582 of the Code of 1930, or any other section of the code, that authorized and empowered the State Auditor or his patrolman to deprive the appellee of the tag that he had bought and paid for and thereby strip his motor vehicle of any tag whatever.
That the acts on the part of appellant Price were willful, wanton and deliberate are vouched for by the record itself.
Hinton v. Sims, 158 So. 141; Gurley v. Tucker, 155 So. 189; Bounds v. Watts, 131 So. 804, 159 Miss. 307; Neal v. Newburger, 123 So. 861, 154 Miss. 691; Section 2903, Code of 1930.
Section 2903 of the Mississippi Code expressly authorizes the appellee in this case to bring this suit on the bond of appellant Price, "for the recovery of the damages that have been sustained" by the breach of duty on the part of appellant Price.
If the appellee in this case is not entitled to recover anything except compensatory damages, then there would have been no need in the Mississippi Legislature inserting section 2903 in the Mississippi Code of 1930.
Neal v. Newburger, 123 So. 861, 154 Miss. 691; Edward Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650; Levy v. McMullan, 152 So. 899, 169 Miss. 659; Mississippi Central Railroad Co. v. Aultman, 160 So. 737.
In the case at bar, there was no motion or request in the trial court asking the jury to separate the actual and punitive damages. The result is a general verdict and, consequently, the appellants cannot be heard to complain in this court. Particularly is this true when the appellants did not file a motion for a new trial or bring this question to the attention of the trial court.
Miss. Central Railroad Co. v. Aultman, 160 So. 737.
Penal statutes are to be strictly construed, and chapter 126 of the Laws of 1934 does not impose any penalty whatever on the violator of its provisions, except the penalties provided by said chapter. But if section 5621 is applicable, the record in the case at bar does not show that the appellee had failed to pay the taxes prescribed by the statute.
Appellee brought this action of replevin in the circuit court of Simpson county for the possession of a motortruck, and for damages for its detention, against appellants, Joe S. Price, state auditor, and Mississippi Fire Insurance Company, surety on his official bond. There was a judgment for appellee for the possession of the truck, which he had taken on a forthcoming bond, and for damages in the sum of one hundred dollars for its unlawful taking and detention.
Appellee was hauling for hire for the American Oil Company a truck load of gasoline, oils, and greases from Hattiesburg to Kosciusko. He was using a Ford truck, upon which he had paid the road and bridge privilege tax authorizing him to carry a maximum of one and one-half tons over the public highways of the state. On this particular occasion he was carrying gasoline, oil, and greases weighing five thousand nine hundred sixty pounds, or approximately three tons. When he reached Magee in ...
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