Smith Chevrolet Co. v. Finch

• Decision Date: 21 May 1928
• Docket Number: 27181
• Citation: 150 Miss. 854,117 So. 258
• Court: Mississippi Supreme Court
• Parties: SMITH CHEVROLET CO. v. FINCH. [*]

117 So. 258

150 Miss. 854

SMITH CHEVROLET CO. v. FINCH. ^[*]

No. 27181

Supreme Court of Mississippi

May 21, 1928

Division B

1. MALICIOUS PROSECUTION. Whether defendant should recover attorney's fees, loss of time, and expenses of attending court for wrongful replevin held for jury.

Where suing out of writ of replevin by plaintiff was willful wrong on its part, an act of fraud, malice, or oppression defendant was entitled to have submitted to jury question whether he should recover, as punitive damages attorney's fees, loss of time, and expenses of attending court.

2. MALICIOUS PROSECUTION. Instruction that defendant could recover for trouble he was put to and loss of business earnings as result of wrongful replevin held reversible error.

Instruction that defendant was entitled to recover trouble, if any, he was put to, and his loss of business earnings, if any, as result of wrongful seizure of his car in replevin action held reversible error, since, as an element of damages, trouble is too vague, indefinite, and undefinable, and there was no evidence showing replevin resulted in any business loss to defendant.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Jackson county, HON. W. A. WHITE, Judge.

Action of replevin by the Smith Chevrolet Company against Louie S. Finch, in which defendant filed claim for damages. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Reversed and remanded.

O. F. Moss, for appellant.

Ford, White, Graham & Gauntier, for appellee.

OPINION

ANDERSON, J.

Appellant brought this action of replevin in the circuit court of Jackson county, against appellee, to recover possession of an automobile, bought by the latter from the former. After the issuance and service of the writ of replevin, appellant filed its declaration, as required by statute. Appellee demurred to the declaration, which demurrer was by the court sustained, and appellant given leave to file an amended declaration, which was later filed. Thereafter, in vacation, appellant took a nonsuit, and paid the costs of the cause. Before this was done, however, appellee had filed a claim for damages on the ground that the writ of replevin had been wrongfully sued out. At the February, 1928, term of court, the issue of damages was tried, resulting in a verdict and judgment for appellee in the sum of three hundred seventeen dollars; from that judgment appellant prosecutes this appeal.

There was ample evidence tending to show that the suing out of the writ of replevin by appellant was a willful wrong on its part--an act of fraud, malice, or oppression. There was no evidence whatever to show probable grounds for replevin. In such a case, the defendant is entitled to have submitted to the jury the question of whether he shall recover, as punitive damages, attorney's fees, loss of time, and expenses of attending court. Mars v. Germany, 135 Miss. 387, 100 So. 23; Thornton v. Gardner, 134 Miss. 485, 99 So. 131; Cowden v. Lockridge, 60 Miss. 385; Taylor v. Morton, 61 Miss. 24. The act of the court in submitting that question to the jury is complained of by appellant. Under the authorities cited, the complaint is without merit.

The action of the court in granting all of the instructions given appellee is assigned and argued as error. One of the instructions given the jury is in this language:

"The jury are instructed that defendant, Louis Finch, is entitled to recover in this cause such damages as were sustained by him proximately and directly following or resulting from the wrongful seizure of the car herein, and the jury should return a verdict in such sum as will fully compensate him for loss of time, if any, expense, if any, trouble and damages, if any, attorneys' fees, if any, loss of business earnings, if any, and any other expenses or damages proximately resulting from the wrongful seizure of the car in this case, and shown by the evidence."

It will be noted that, by the instruction, the court told the jury that they were authorized, in fixing appellee's damages to take into...