Opinion
No. 32506.
January 18, 1937.
1. CONTRACTS.
Under common law, act of God frees party from consequences of obligation.
2. CONTRACTS.
At common law, generally, act of God excused performance of obligation, unless specially provided for in undertaking.
3. DAMAGES.
It is party's duty to reduce his damages from another's wrongdoing, if possible.
4. REPLEVIN.
Allowance of $200 damages for use of two mules, valued by jury's verdict for defendant in replevin at $240, for agricultural purposes, on ordinary plantation, held not authorized by evidence that mules were worth from $1.50 to $2 per day each and that practically a year intervened between suing out of writ and trial, in view of proof that mules rented for $30 to $40 per year and absence of showing that defendant had special use therefor other than to make crops during growing season.
5. REPLEVIN.
Ordinary measure of damages in replevin is value of property, with interest, from time of taking until time of judgment, where special damages are not shown.
6. REPLEVIN.
Whether affidavit of plaintiff in replevin for two mules that they were taken from his possession within preceding thirty days authorized inference of malice or purpose to oppress held for jury on evidence, if they believed that plaintiff, knowing that he was not entitled to give bond, made false affidavit to secure privilege depriving defendant of right to give bond and retain mules.
7. WITNESSES.
Evidence in trial of replevin suit on appeal from judgment of justice of the peace for defendant that plaintiff was under indictment for perjury committed in trial before justice held inadmissible.
8. TRIAL.
Counsel, as well as court, are under duty to see that trials are fair and impartial between parties.
9. WITNESSES.
Only convictions, not indictments, may be introduced in evidence for purpose of affecting witness' credibility.
10. APPEAL AND ERROR.
Supreme Court cannot reverse judgment for defendant in replevin on ground of error in introducing evidence that plaintiff was under indictment for perjury committed on trial of case before justice of peace, in absence of motion by plaintiff for mistrial.
11. APPEAL AND ERROR.
Counsel for plaintiff in replevin should have not only objected to questions by defendant's counsel to plaintiff and his witness as to whether plaintiff was under indictment for perjury committed in trial of case before justice of peace, but made motion for mistrial when objection was sustained.
ON SUGGESTION OF ERROR. (Division B. March 15, 1937.) [173 So. 286. No. 32506.]1. REPLEVIN.
Where plaintiff made affidavit that he had had possession of replevied mules within thirty days before commencement of suit though he had not had physical possession thereof within the period, thus preventing defendant from giving bond and retaining possession of mules, and mule died while in plaintiff's possession, defendant in replevin held entitled to recover value of mule, irrespective of who had right of possession, if plaintiff acted willfully and maliciously or with intent to oppress.
2. REPLEVIN.
Where plaintiff in replevin made affidavit that he had had possession of replevied mules within thirty days before commencement of suit, though he had not had physical possession thereof within the period, defendant in replevin held entitled to recover only damages resulting from denial of his right to give bond and retain possession of the mules, if plaintiff was entitled to possession and acted under good faith belief that his right to possession was equivalent to actual possession for purposes of the affidavit.
3. APPEAL AND ERROR.
Where evidence in replevin action conflicts as to whether defendant purchased or merely rented replevied goods from plaintiff, and new trial is granted because of unrelated errors, such issue should be submitted to jury.
APPEAL from circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
W.T. Weir and James M. Mars, both of Philadelphia, for appellant.
A witness himself cannot be impeached by asking him if he was indicted.
40 Cyc. 2620; Bradner on Evidence, page 21; Starling v. State, 89 Miss. 328, 42 So. 798; R.C.L. 626; Saucier v. State, 102 Miss. 647, 59 So. 858.
We most respectfully submit that the court erred in refusing the requested instruction No. 2 for the plaintiff, and which is in the following words, to-wit: "The court instructs the jury for the plaintiff, W.H. Mars, that payment is an affirmative defense, and when defendant pleads payment then the burden of proving same is on the defendant and he must meet this burden by a preponderance of the evidence. That is, the burden of proof is not on the plaintiff to prove that defendant did not pay for the mules in question in this law suit, but the defendant must prove by a preponderance of the evidence that he did pay for said mules." The plea of the defendant in this case was that he paid for the mules and, of course, payment is an affirmative defense.
Stewart v. Graham, 46 So. 245.
In the case at bar the court charged the jury that the burden of proof was on the plaintiff and refused the charge along this line to the defendant in conflict with this opinion.
Stewart v. Graham, 93 Miss. 251, 46 So. 245; Greenburg v. Sauls, 91 Miss. 410, 45 So. 569; Sivley v. Williamson, 112 Miss. 276, 72 So. 1008; R.C.L. 935, sec. 107.
We most respectfully submit that the court erred in granting the instruction No. 1 for the defendant wherein it is instructed that the burden of proof is on the plaintiff.
There was no evidence of malice, fraud or oppression in this case hence the instructions along this line is out of order. Instructions on points not raised by the evidence are properly refused.
Mobile R. Co. v. Jackson, 92 Miss. 517, 46 So. 715.
We most respectfully submit that the verdict of the jury is contrary to the evidence and law in this case.
The verdict of the jury is not in accordance with the law in this case.
Evans v. Junius Hart Piano Co., 140 Miss. 467, 106 So. 9, 110 So. 230; Porter Hardware Co. v. Peacock, 91 So. 856.
This was a judgment of the court that the defendant recover of the plaintiff on his appeal bond, and the judgment ought to have been that he restore the property to the defendant or pay him the value thereof assessed, and also damages assessed for the wrongful suing out of the writ. This should be against the plaintiff and his replevin bond but instead it was against the appeal bond.
Pearce v. Twichell, 41 Miss. 344; Whitfield v. Whitfield, 40 Miss. 352.
The appeal bond is only for the condition that the principal shall be conditioned for the payment of such judgment as the circuit court shall render.
Sections 64, 3091, Code of 1930; Otts Finance Co. v. Myers, 152 So. 834.
We further respectfully submit that the verdict of the jury in the assessment of damages is not warranted by the law or evidence. They do find for $200 for damages, but they do not say for what. It is not known whether the damages assessed is for attorney fee, or was for the wrongful seizure of the property, or for oppression, malice, etc. It is not known whether the damages were for one mule or for both mules. If it was for attorney fee then it could not be allowed except on proof of wilfulness, malice or fraud is shown.
The measure of damages in a case of this kind, where plaintiff has sustained no damages because of the deprivation of use of his property, would be the interest on the value of the property during the time he was deprived of its possession. We think the same rule applies to the defendant as to the plaintiff in the case of awarding damages.
Mars v. Germany, 100 So. 23; Thornton v. Gardner, 99 So. 131; Caraway v. Wallace, 17 So. 930.
W.T. Weir and James M. Mars, both of Philadelphia, for appellant on suggestion of error.
The natural death of an animal without the fault of anyone, while in the possession of the plaintiff in replevin, but before the determination of the action, has been held as a valid excuse for a failure to return it.
R.C.L. 906, sec. 67.
The purpose of the affidavit is to obtain an order of delivery. It forms no part of the pleading, where a petition or bill of particulars has also been filed, and its office ceases when the property is delivered and jurisdiction conferred and the action thereafter proceeds upon the petition; and whether a cause of action has been stated must be determined by the averments of the petition and not by the affidavit.
23 R.C.L. 920-921, sec. 88.
While this cause was instituted in the justice of the peace court, yet it was proceeded on by declaration and answer by both parties and therefore by the act of both parties they eliminated the terms of the affidavit on which they tried the case.
34 Cyc. 1428, 1438.
We most respectfully submit that if the affidavit was or is wrongfully made that the remedy of defendant was on motion to quash and that could have been heard before the court and testimony introduced to show on the motion that the allegations of the affidavit was incorrect, but instead they go before the grand jury and indict and then parade that before the jury in order to prejudice the jury in favor of the defense and even in the suggestion of error they undertake to reflect on appellant for using his son as attorney. We respectfully submit that he had the right to use his son if he saw fit, and that ought not to be a matter of discussion in the court.
Nate S. Williamson, of Meridian, for appellee.
Section 3097, Code of 1930, concerns pleading requirements in replevin action. The filing of counterclaim is proper.
Garner v. Broom, 138 So. 336.
See section 67 of the Mississippi Code of 1930, as touching jurisdiction of justice of the peace court, circuit court on appeal and Supreme Court on appeal.
Evidence that the car replevied in justice of the peace court was worth three or five hundred dollars and that the debt or unpaid purchase price was $280, nevertheless this did not deprive justice of the peace court of jurisdiction because plaintiff testified that the car was worth less than two hundred dollars. The record did not show that he purposely and knowingly undervalued same. Justice of the peace was correct in retaining jurisdiction.
Mitchell v. Williams, 124 So. 430; Miss. Power Co. v. Russell, 152 So. 847.
Code section 3089 among other things holds that in the event the defendant wins, of course the plaintiff in replevin and sureties on his bond "shall be liable to the defendant for any damages to, or depreciation in the value of, such property from the date of the surrender of said property to the plaintiff and the execution of his replevin bond to the date of its surrender by the plaintiff in obedience to the judgment of the court, in addition to any other damage which the defendant may sustain by reason of the delivery to the plaintiff, or his retention thereof, in virtue of said bond, and the defendant may recover such damages in the replevin suit, or may institute a separate action therefor on the plaintiff's replevin bond." etc.
Myers v. Daughdrill, 141 So. 583; Cook v. Waldroff, 133 So. 894.
According to the proof in the case at bar the damages recovered in the case at bar are nominal, not near as much as the jury might have properly rendered a judgment for.
The damages, in case of a wrongful taking, which in its inquiry might involve many collateral questions of tort and circumstances of aggravation, might be much greater in amount, than the damages which could be recovered in a case merely of the wrongful detention of the property.
Newell v. Newell, 34 Miss. 399.
In the case at bar the evidence for the defendant in replevin, appellee here, preponderated to his favor to the extent that it was almost inescapable that the plaintiff in replevin, appellant here, was guilty of wilfulness, malice or fraud and oppression in the suing out of the writ of replevin and the seizing of the mules under the circumstances under which they were seized in the spring of the year under the affidavit in the replevin case, giving the right to the plaintiff in replevin to make bond — under which he did make bond the day they were seized — and under which he did hold one of the mules until the day he died and is holding the other one until this good hour. The appellant being a man of means and being extraordinary "smart" evidently knew he could take advantage of an old, feeble, ignorant and almost blind neighbor and thereby get the use of the mules for an entire crop period, in fact, two crop periods and thereby deprive this old gentleman of his own mules that he had for five or six years, depriving him of the right to use them or make crops with them for a couple of years regardless of the justice or the injustice of the transaction, and without regard to how the courts decided the question, for the appellee won in justice court. He also won out in circuit court and if I am judge at all of law and fact in this case he will win out in Supreme Court, nevertheless this "smart" man has realized his objective in that he has continuously had the use of the mules and the appellee has continuously been deprived of the use of the mules — oppression in the extreme.
We insist that if any injustice has been done either litigant the injustice has resulted to the appellee although he was victorious in both trial courts. We humbly submit that there is certainly no reversible error and that the case should be affirmed.
A.B. McCraw, of Philadelphia, and Nate S. Williamson, of Meridian, for appellee, on suggestion of error.
Where a verdict is rendered but the jury failed to properly assess the value of the property, the verdict should stand and a writ of inquiry may be subsequently ordered to assess the value.
Spratley v. Kitchens, 55 Miss. 578; Drane v. Hilzheim, 13 S. M. 336.
Appellee respectfully suggests that this Honorable Court committed error in its said opinion in this case at bar in reversing this case for the reassessment of damages, more especially in holding that the death of one of the mules involved in this replevin suit relieved the appellant from any duty or obligation to pay to the appellee, the owner thereof, the reasonable value of same as assessed by the jury.
George v. Hewlette, 70 Miss. 1, 35 A.S.R. 626; Whitfield v. Whitfield, 44 Miss. 254; Young v. Pickens, 45 Miss. 553; Irion v. Hume, 50 Miss. 419; Atkinson v. Foxworth, 53 Miss. 741.
The appellant having been found by the jury under conflicting evidence to have been a trespasser — a wrongdoer ab initio from the beginning. It savors of tort and insofar as he is concerned even though he made a contractual bond this being true, we think he and his bondsmen are responsible for the value of the dead mule, but he is responsible whether his bondsmen are or not. The obligation of bondsmen being contractual sometimes differs from the liability of the principal.
Myers v. Daughdrill, 141 So. 583.
It is held to be the general rule that the plaintiff in replevin, in possession of the property under a replevin bond is liable, at all events, for its return, "if the action is decided against him; and the fact that his failure to make return is caused by an act of God or other circumstances beyond his control, and notwithstanding all due care upon his part, is of no avail to relieve him from his obligations."
23 R.C.L. 906, sec. 67.
A plaintiff in replevin is not a mere custodian, responsible only for negligence; since, if he is not the owner, he must restore what was wrongfully taken, and cannot be heard to say that he held at the risk of the true owner, so as to be liable only in case of loss or destruction resulting from his negligence.
Jacobs v. Walker, 90 Okla. 209, 216 P. 935, 31 A.L.R. 1287.
We earnestly insist that the court is in serious error in holding in the case at bar that the death of the mule relieved the appellant from the legal duty or obligation of paying to the owner of the mules the reasonable value of same assessed by the jury on proper evidence.
The court says in this opinion reversing and remanding this case that "where special damages are not shown, the ordinary measure of damages in replevin is the value of the property, with interest, for the time of taking, to the time of judgment." Assuming this to be true the interest plus the special damages proved including punitive damages, because the jury was authorized to infer malice, or a purpose to oppress, and evidently did so infer, the $200 is still justified and exceedingly reasonable, especially in this case where it was so plain and obvious that the appellant sued out the writ of replevin in the manner in which he did, at the time it was sued out, for the deliberate purpose of depriving this old man of the only mules that he had with which to make a crop, with which to haul his wood, with which to go to church, with which to go to market, in spring, summer, fall and winter.
Cook v. Waldroff, 133 So. 894; Newell v. Newell, 34 Miss. 399.
The appellant, W.H. Mars, sued out a writ of replevin in a justice of the peace court, making affidavit that W. T. Hendon, appellee, had taken from his possession in the last 30 days, "one pair of black mare mules," one 14 years old, valued at $95, and the other 13 years old, valued at $100, the property of the affiant, in District No. 1 for the election of justices of the peace, and that appellant was entitled to possession thereof. A writ of replevin was accordingly issued by the justice of the peace, the property described taken into possession and delivered to appellant, he having given bond for same under said affidavit. In the justice of the peace court judgment was rendered in favor of the appellee. From this judgment, an appeal was taken by appellant to the circuit court where the case was tried de novo, resulting in a verdict for appellee, Hendon, in which the mules were valued, one at $125, and the other at $115, and damages were awarded for $200, from which judgment this appeal is prosecuted.
It appears from the evidence that the mule which was assessed at $125 in the circuit court died shortly after the suing out of the writ of replevin.
Witnesses for the appellant, including himself, tended to show that the mules belonged to W.H. Mars, and that he had rented them to Hendon in the year 1930, and from year to year from that time until shortly before suing out the writ of replevin, when Mars went to Hendon's premises and demanded the mules. Possession thereof was, by Hendon, refused, he claiming that he had purchased and paid for them, and, thereupon, the writ of replevin was sued out.
W.H. Mars, appellant, testified that he believed the mules were legally in his possession after he made demand for them, although he did not have physical possession thereof from 1930 to 1935.
It was shown that Hendon had the mules assessed to him, and that he paid taxes on a pair of mules.
Appellant claims that, while Hendon had paid the taxes on said mules, he had agreed to do so, and that the amount of the taxes was to be abated from the rent value of the mules, which appears to have been $30 per year each.
Hendon, appellee, claims that he bought the mules from Mars; that he had sold him a tract of land upon which he had paid $600, but that Mars owed appellee considerably more than the agreed price of the mules, which Hendon claims is $125 and $115; that he had never owed Mars anything on the mules, and that he had traded with Mars in his store, which paid some part of the purchase price of the land.
There were some witnesses to sustain the appellant's theory, and some to sustain that of the appellee, and while one witness, in favor of the appellant, was on the stand, he was asked by appellee's attorney if Mars was not under indictment for perjury committed in the trial of this case in the justice of the peace court. The witness stated that he did not know anything about that. Objection was made and sustained to this question, and subsequently, when Mars was on the stand, he was asked if he was not under indictment for perjury, for false swearing in the case in the justice of the peace court trial, and he answered that he was, as he considered it, very unjustly so; and he did not think it was fair to bring that matter up in this trial to prejudice him before the jury. No motion was then made for a mistrial, or to discharge the jury because of said matter.
From this statement of the case, it will be seen that one of the mules died, and there is no proof in the record to show that its death was occasioned by anything done by appellant, Mars; that the mule was, apparently, in good condition, and died so far as the evidence shows, without any fault of Mars.
A question is therefore presented as to whether Mars is liable for the value of the mule on his forthcoming bond, or whether he was excused by an act of God.
In Irion v. Hume, 50 Miss. 419, it is said that, "At common law, when the condition of the bond is possible at the time of making it and, before the same can be performed, becomes impossible by the act of God, or of the law or the obligee, then the obligation is saved. If the condition is impossible at the time of making the bond, the condition is lost and the bond becomes absolute."
In Atkinson v. Foxworth, 53 Miss. 741, it was held that, "The obligation of the claimant is to redeliver the property to the sheriff. If that becomes impossible by reason of matter occurring after the bond is given, it is a discharge from the obligation. It is not necessary for the sureties to present the matter by formal plea puis darrein continuance. It may be done by motion, on which the court may direct a formal inquiry by jury, or itself hear testimony."
These decisions of our own court show that an act of God is recognized, by the common law, in this state, as freeing a party from the consequences of an obligation.
In George v. Hewlett, 70 Miss. 1, 12 So. 855, 35 Am. St. Rep. 626, this court held that property lost by fire, without negligence on the part of the party having it in possession, did not excuse the party from delivering said property and this principle was announced in the case of McPherson v. Acme Lumber Company, 70 Miss. 649, 12 So. 857. In other words, the court held that the party in possession of property and under bond to redeliver it could not avoid his obligation to redeliver, by anything short of an act of God. In George v. Hewlett, supra, the case of Whitfield v. Whitfield, 44 Miss. 254, was overruled, but the cases of Irion v. Hume, supra, and Atkinson v. Foxworth, supra, were distinguished.
In Bobo v. Patton, 6 Heisk. (Tenn.) 172, 19 Am. Rep. 593, it was held that where property is taken by a plaintiff in replevin, and while in his possession pending the proceeding, dies or is destroyed without his fault, he is not liable to the defendant for its value in case of a verdict for the defendant. In instructing the jury, the trial court there said, "If they found for the defendant they will find the value of the animal, with interest thereon and damages since replevied until the present time; or if the proof shows the mare has died, then only to the date of her death." This was held to be error, and the appellate court said that, "The plaintiff in replevin who takes possession of the property pending the litigation, takes the possession with a view to litigating the title. If during such possession and before the trial, by the act of God, or without the fault of the plaintiff, the property be lost or destroyed, the plaintiff is not to be held liable for its value, while he may be held liable for the value of its services during the period of its detention and up to the time when it ceased to be serviceable. The principle is, that if a bond or obligation possible of performance at the time of execution becomes impossible by the act of God, or of the law, or of the obligee himself, the obligation will be saved."
At common law, generally, an act of God excused performance unless specially provided for in the undertaking.
In the trial of the case at bar, W.T. Hendon, appellee, did not show what effort he had made to reduce his damages, or secure other stock, nor did he say that he had sufficient stock to complete his crop. He introduced evidence of certain witnesses to show that the mules were worth from $1.50 to $2 per day each. There was a long period of time, practically a year, between the suing out of the writ of replevin, and the trial in the circuit court. It is familiar law that a party is under duty to reduce his damages, if he can do so. So far as the proof in this case shows, Hendon was not specially damaged by not having this particular stock to work his plantation. There is other proof in the record showing that mules rented from $30 to $40 per year, and there is no showing that Hendon had any special use, other than making a crop during the growing season, for the mules in controversy. The element of damages on a per day basis is a highly unreasonable measure for damages, where the use of stock is merely for agricultural purposes upon an ordinary plantation.
In the state of the proof in this record, we think $200 damages for the use of the mules was unauthorized, and that the ordinary measure of damages in replevin, where special damages are not shown, is the value of the property, with interest, from the time of taking, to the time of judgment. Taylor v. Morton, 61 Miss. 24, and Heard v. James, 49 Miss. 236.
It may be that the jury, in the case at bar, was authorized to infer malice, or a purpose to oppress, by the making of the affidavit that the mules were taken from possession within 30 days. This was a question for the jury, on the evidence, provided they believed that Mars, appellant, knowing that he was not entitled to give bond, made a false affidavit to secure a privilege which would operate to deprive Hendon, appellee, of his right to give bond and retain the mules, but that conclusion does not necessarily follow under the testimony in this record.
We think it was improper to introduce, before the jury, the fact that Mars, appellant, was under indictment for perjury.
As the case must go back for retrial, we make this announcement so that this error may not occur on another trial because it is incompetent, for any purpose in this case, to show that fact. Counsel, as well as the court, are under duty to see that trials are fair and impartial between parties. It is a mistake to assume that such questions are competent to show the interest of a party in the particular suit. A former indictment has nothing to do with the trial of a case at bar. Only convictions may be introduced for the purpose of affecting the credibility of witnesses, and for that purpose alone. We could not reverse on this ground, because there was no motion for a mistrial.
We hold, however, that counsel should have not only objected to the remarks, but when such objection was sustained, should have made a motion, if desired, for a mistrial. It would be unfair to permit a party, in such case, to gamble upon the verdict or decree by taking advantage of a favorable verdict, while setting aside an unfavorable one.
For the errors indicated, the judgment will be reversed and the cause remanded.
Reversed and remanded.
ON SUGGESTION OF ERROR.
The suggestion of error filed herein took the usual course of being referred to another judge than the one who wrote the opinion, and it has been considered by the court, after which the court has decided to overrule it.
But we desire to make response thereto, and to elucidate the former opinion in certain respects.
Dr. Mars filed an affidavit that the property had been taken from his possession within thirty days prior to the making of the affidavit and the issuance of the writ of replevin. He testified that he thought he had legal possession of the property, and that he had rented the mules to Hendon.
Both Dr. Mars and W.T. Hendon testified to the making of the demand prior to the filing of the suit, and the refusal to surrender the property on such demand.
It is clear from the record that Dr. Mars did not legally or physically have possession of the property within thirty days prior to the filing of the suit, and by making the affidavit he deprived Hendon of the right to give bond and retain possession of the mules, as he had a legal right to do, consequently Hendon was damaged to this extent, regardless of the right of possession.
If Dr. Mars made the affidavit willfully and maliciously, or with the intent to oppress Hendon, then, should the jury so find, he should be held liable for the value of the mule which died; but if he acted in good faith, although under a false conception of law, he would only be liable for the damage flowing from depriving Hendon of the right to give bond in the first instance, provided he establishes his right to possession of the mules.
In the former opinion, we stated there was direct conflict in the evidence as to whether Hendon rented the mules from Dr. Mars, or whether he sold them to Hendon, and this should be submitted to a jury on a new trial free from the errors there pointed out.
Although we would not reverse on this record for the erroneous admission of evidence that Dr. Mars was indicted for perjury in the justice of the peace court, because, as stated in the former opinion, there was no proper procedure to discharge the jury, it is important to the rights of the parties here that the case be tried anew to avoid impressions that may have influenced the jury.
The suggestion of error will, therefore, be overruled.
Overruled.