Opinion
No. 29952.
April 18, 1932.
1. APPEAL AND ERROR.
Fact finding by judge trying case without jury should not be disturbed unless manifestly wrong.
2. APPEAL AND ERROR.
Ordinarily fact finding by trial judge on conflicting evidence, in case tried without jury, should not be disturbed.
3. DAMAGES. Evidence held to warrant county judge's implied finding that defendant's truck driver either saw plaintiff's truck at curb and backed into it without warning, or backed into truck without exercising any care, justifying punitive damages.
Either finding would disclose such gross negligence on part of driver of defendant's truck as to warrant belief that he acted in reckless disregard of consequences, and hence would justify imposition of punitive damages.
4. COURTS. Where evidence warranted punitive damages, question whether they should be inflicted was for county judge trying case without jury, not for circuit judge on appeal ( Code 1930, section 704).
In such case, circuit court should have affirmed judgment of county court awarding punitive damages, and circuit court's judgment of reversal was reversible error.
5. DAMAGES.
Awarding punitive damages, when allowable, is discretionary with jury or judge sitting without jury.
6. COURTS.
Circuit court, when affirming money judgment of county court, where appeal bond supersedes judgment, should render judgment on bond for amount of judgment affirmed, with interest thereon from date of rendition at same rate as borne by judgment affirmed, court costs, and six per cent. damages on amount of judgment (Code 1930, sections 704, 3387, 3389).
7. APPEAL AND ERROR.
Supreme Court, reversing circuit court's judgment which reversed county court's judgment, could render such judgment as circuit court should have rendered (Code 1930, sections 704, 3378).
8. APPEAL AND ERROR.
Where Supreme Court reverses circuit court's judgment and, by rendering contrary judgment, in effect affirms county court judgment, mandate will be issued direct to county court (Code 1930, section 704).
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Brunini Hirsch, of Vicksburg, for appellant.
All motor vehicles which were designed and used for pulling and/or carrying freight shall not be operated on any public highway in this State unless they are so constructed or equipped with a mirror so attached as to afford the driver of such motor vehicle a view of the road behind him at all times.
Section 5576, Code of 1930.
One who backs his car on to a public highway is under a positive duty to look backward and to give timely warning, and he must not only look backward when he commences his operation but must continue to look backward.
Taulberg v. Andresen, 228 N.W. 528; Pease v. Bardner, 113 Me. 264; Caputo v. Wells, 111 Conn. 363, 149 A. 855; Lee v. Donnelly, 95 Vt. 121, 113 A. 542.
Wantonness consists in consciousness on the part of the person charged with it, from his knowledge of existing circumstances and conditions, that his conduct will probably result in injury and yet, with reckless indifference or disregard of the natural or probable consequences, but without intention to inflict injury, he does or fails to do the particular act.
Birmingham R.R. Light Power Co. v. Landrum, 153 Ala. 192, 45 So. 998.
Punitive damages may be recovered not only for a wilful and intentional wrong, but for such gross and reckless negligence as is equivalent to such a wrong. A spirit of wantonness and recklessness is at war with good faith. An act done in such a spirit oftentimes is just as harmful as if prompted by malice.
Neal v. Newburger, 154 Miss. 691, 699; Birmingham R.R. Light Power Co. v. Landrum, 153 Ala. 192, 45 So. 198, 202.
The question of punitive damages is one for the trier of fact, if there is any evidence to justify such damages.
Wilson v. Railroad Co., 63 Miss. 352; Burns v. Railroad, 93 Miss. 816.
Dabney Dabney, of Vicksburg, for appellee.
To warrant the allowance of punitive damages, the act complained of must not only be unlawful, but it must also partake somewhat of a criminal or wanton nature. And so it is an almost universally recognized rule that such damages may be recovered in cases, and in only such cases, where the wrongful act complained of is characterized by some such circumstances of aggravation as wilfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant.
8 R.C.L., p. 582, sec. 132.
Section 679, Code 1930, specify how costs are to be taxes on appeal from courts of justice of the peace, and it seems to us that the same rule might be applied here.
Section 682, Code 1930.
The judge of the circuit court has the right to tax the costs as he may see proper.
Section 682, Code 1930.
This suit was brought on the chancery side of the county court. Appellant should not be permitted to bring his action in a court of equity for one purpose without thereby subjecting himself to all equity practice.
An automobile truck belonging to the appellant was injured in a collision with a truck owned by the appellee. The appellant, claiming that the injury to his truck resulted from the negligence of the driver of the appellee's truck, sued out an attachment against the appellee under section 173, Code 1930, in the county court, joining therein a local defendant, who, he alleged, is indebted to the appellee. The appellee answered the bill of complaint denying liability, and the local defendant answered admitting an indebtedness to the appellee. The case was tried by the county judge without a jury.
The appellant sued for both actual and punitive damages, and, by agreement, the damages to his truck were fixed at fifty-three dollars, the amount spent by him for repairs thereon. A judgment was rendered for the appellant for five hundred fifty-three dollars, five hundred dollars of which, therefore, being for punitive damages. On appeal to the circuit court, the judgment of the county court was reversed, and the case was tried de novo. By agreement of counsel, the case was tried by the judge, without a jury, who rendered a judgment for the appellant for fifty-three dollars.
One of the assignments of error is that the court below erred in reversing the judgment of the county court.
The appellee's contention in the circuit court was, and here is, that the evidence did not justify the county judge in awarding the appellant punitive damages.
The rule which should govern an appellate court in reviewing a finding of fact by a trial judge when trying a case without a jury is that such finding of fact should not be disturbed unless manifestly wrong. This cannot ordinarily be said of a finding of fact on conflicting evidence. Alabama V. Railway Co. v. Bolding, 69 Miss. 255, 13 So. 844, 30 Am. St. Rep. 541; Kemp v. Turman, 104 Miss. 501, 61 So. 548; Aldridge v. Bogue Phalia Drainage District, 106 Miss. 626, 64 So. 377; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Aaron v. Citizens' Insurance Co., 144 Miss. 480, 110 So. 120.
The evidence before the county judge discloses that the appellant is engaged in the mercantile business in a house fronting on Washington street in the city of Vicksburg. The curbing in front of the house separating the street from the sidewalk is painted yellow, indicating that the street space opposite thereto and abutting thereon can be used for automobile parking purposes only temporarily, and for the purpose of unloading and loading vehicles. The appellant uses in his business a small delivery truck. According to the evidence of the driver of this truck, he drove the truck in front of the building on the occasion in question, and parked it parallel with the sidewalk, for the purpose of transferring parcels therein to the appellant's place of business. After he had parked the truck, a large tarpaulin-covered freight truck belonging to the appellee came up from the rear of appellant's truck, passed it, pulled into the sidewalk, and stopped parallel thereto about seventy-five or eighty feet in front of the appellant's truck, and immediately thereafter, without any warning of an intention so to do, the driver of the appellee's truck, backed it into the appellant's truck with sufficient force to damage it.
The appellant's driver also testified that he sounded the horn of his automobile repeatedly when he saw that the appellee's truck was backing into his truck; and, according to the evidence of several other witnesses, they (the witnesses) called to the driver of appellee's truck and warned him not to continue to back the truck. The appellee's driver denied hearing the horn or the calls.
The testimony of the appellee's truck driver as to what occurred is, in substance, as follows: When he arrived at appellant's place of business, the street space adjoining the yellow line on the curb was vacant, as was also the space immediately beyond that line, and in the direction his truck was traveling. Having some freight to deliver to the appellant, he headed his truck toward the sidewalk and stopped parallel therewith a short distance beyond the yellow line, for the purpose of backing his truck along the sidewalk in to the space marked by the yellow line. He looked to the rear before commencing to back his truck and saw that the yellow-line space was clear. Because of the size and width of the body of his truck, he had to look under its body in order to see the space in the rear. He then backed the truck slowly, and, just as he brought it to a stop, it was struck violently in the rear by the front of the appellant's truck, which was then, for the first time, coming into the space marked by the yellow line. It does not appear from his evidence that he took any precaution after commencing to back his truck, other than to back it slowly.
There was evidence corroborating both of these witnesses.
The conflicts in this evidence were for the determination of the county judge, and from it he was justified in believing, as he evidently did, that the driver of appellee's truck either saw the appellant's truck at the curb and backed into it without warning, or backed into the truck without exercising any care to ascertain whether it was in the way. Either finding would disclose such gross negligence on the part of the driver as to warrant the belief that he acted in reckless disregard of the consequences, and justify the imposition of punitive damages.
If the evidence warranted punitive damages, the infliction thereof was for the determination of the trial judge, and not of the reviewing court. The awarding of punitive damages, when allowable, is discretionary with the jury or with the trial judge when trying cases without a jury.
The circuit court should have affirmed the judgment of the county court, and its judgment of reversal must be reversed here.
The appeal from the county court to the circuit court was by means of a bond with a supersedeas. Section 5, chap. 131, Laws 1926, creating county courts, when brought forward into the Code of 1930 as section 704 thereof, was amended so as to permit the circuit court, when affirming an appeal from a county court, to render a summary judgment on the appeal bond by adding thereto the following: "If no prejudicial error be found the matter shall be affirmed and judgment entered in the same manner and against the like parties and with like penalties as is provided in affirmances in the Supreme Court." Under sections 3387 and 3389, Code 1930, the Supreme Court, when affirming a money judgment of a trial court, where the appeal bond supersedes the judgment, renders a judgment on the bond for the amount of the judgment affirmed, with interest thereon from the date of its rendition at the same rate as borne by the judgment affirmed, court costs, and six per cent damages on the amount of the judgment. Such a judgment should have been rendered by the court below, and such must be the judgment here under section 3378, Code 1930, which requires the Supreme Court, when reversing a lower court, to "render such judgment, sentence, or decree as the court below should have rendered."
Section 5, chapter 131, Laws of 1926, was also further amended, when brought forward into the Code of 1930, as section 704, by adding thereto the following: "When the result of an appeal in the Supreme Court shall be a reversal of the circuit court and in all material particulars in effect an affirmance of the judgment of the county court, the mandate may go direct to the county court, otherwise to the circuit court."
The judgment of this court herein being "in all material particulars in effect an affirmance of the judgment of the county court," the mandate will be issued direct to that court.
Reversed, and judgment here for the appellant.