Remington Et Ux v. Kirby

• Decision Date: 16 March 1897
• Citation: 120 N.C. 320,26 S.E. 917
• Court: North Carolina Supreme Court
• Parties: REMINGTON et ux. v. KIRBY.

26 S.E. 917

120 N.C. 320

REMINGTON et ux.

v.KIRBY.

Supreme Court of North Carolina.

March 16, 1897.

Punitive Damages — Basis of Recovery — Trespass.

Punitive damages for unlawful entry on land are not recoverable on the ground alone that the act for which they are claimed was wrongful, but only where some element of wantonness entered into it.

Appeal from superior court, New Hanover county; Starbuck, Judge.

Action by P. Remington and wife against G. L. Kirby to recover damages for the defendant's unlawful entry upon lands leased by him to plaintiffs. Judgment for plaintiffs, and defendant appeals. Reversed.

Aycock & Daniels, for appellant.

J. D. Bellamy, for appellees.

FAIRCLOTH, C. J. The principal contention of defendant (appellant) before this court was that there was not sufficient evidence to entitle plaintiff to punitive or exemplary damages, and he requested his honor to so instruct the jury, which was refused. The defendant, admitting the lease and entry in March, insisted that the latter was lawful, by reason of the forfeiture clause in the contract; and, if the entry was unlawful, it was made in good faith, and under an honest belief of his right to do so. The jury found these questions against defendant.

The defendant's eleventh prayer for instruction was that "there is no sufficient evidence to entitle the plaintiff to punitive or exemplary damages." The defendant's liability for such damages does not depend upon whether he was a wrongdoer or not, but upon the manner and motive of such wrongdoing. "Exemplary damages are not recoverable in any action of tort, but only in those where a bad motive is shown, and not for every trespass on land of which a defendant is guilty, but only where it is committed through malice, or accompanied by threats, oppression, or rudeness to the owner or occupant. Punitive damages have not been allowed where the testimony tended to show good faith, and only a mistake as to authority." Waters v. Lumber Co., 115 N. C. 655, 20 S. E. 720; Hansley v. Railroad Co., 115 N. C. 602. 20 S. E. 528; and the several authorities cited. It will be noticed that, in all the well-considered cases allowing punitive damages, wantonness in some one of its many forms was the controlling element, and illustrations will be found in Wylie v. Smitherman, 8 Ired. 236, and Duncan v. Stalcup, 1 Dev. & B. 440. We deem it unnecessary to recite the evidence. We have examined it carefully, and fail to find any sufficient evidence to show conduct on...