Opinion
No. 34267.
December 9, 1940. Motion to correct judgment sustained. February 10, 1941.
1. MARRIAGE.
The law would presume in favor of the validity of wife's second marriage that former husband, from whom wife had not obtained a divorce, had either obtained a divorce or was dead, notwithstanding that his absence had been for a period of less than seven years.
2. HUSBAND AND WIFE.
A husband has the right to choose and establish the matrimonial domicile, and the wife has duty to acquiesce in his selection and follow him to the domicile of his choice, unless the choice has been unreasonably and arbitrarily made, or the comfort, health and general well being of the wife would be jeopardized by a change.
3. REPLEVIN.
Proof of ownership by plaintiff of title to property which plaintiff sought to recover in replevin from manager of plantation on which plaintiff and wife had resided was not essential to entitle him to the possession thereof for purpose of having it moved to new domicile selected by him.
4. REPLEVIN.
Attorney's fees are not recoverable from the sureties on a replevin bond unless the facts show such gross or wilful wrong as to justify infliction of punitive damages, in absence of statute.
5. REPLEVIN.
Where it was averred in affidavit in replevin that property had been wrongfully taken from possession of plaintiff within preceding 30 days, whereas in fact plaintiff had been in possession and enjoyment of the property within the preceding 30 days as head of family, but plaintiff was being deprived of its use and enjoyment by his wife and by manager of plantation on which plaintiff and wife had resided, unless plaintiff should return to the plantation, plaintiff's action was not so wilful, oppressive or malicious, when considered in light of fact that he acted on advice of attorney, as to justify recovery of attorney's fees from sureties on replevin bond.
APPEAL from the circuit court of Quitman county, HON. WM. A. ALCORN, JR., Judge.
Gore Strong, of Marks, for appellants.
Punitive damages are never awardable as compensation, but only by way of punishment to the offender and as a warning to others.
17 C.J. 968-9; Y. M.V.R.R. Co. v. May, 104 Miss. 422, 61 So. 449; Sec. 3091, Code of 1930.
Punitive damages cannot be awarded in a replevin suit unless the plaintiff was actuated by malice, ill-will, etc., in suing out of the writ.
Cowden v. Lockridge, 60 Miss. 385; Carraway v. Wallace (Miss.), 17 So. 930; Taylor v. Morton, 61 Miss. 24; Thornton v. Gardner, 134 Miss. 485, 99 So. 131; Mars v. Germany, 135 Miss. 387, 100 So. 23; Mars v. Hendon, 178 Miss. 157, 171 So. 880, 173 So. 286.
Punitive damages are not generally recoverable against sureties on bonds, if breached by the principal, even though the principal was actuated by malice, ill-will, etc., in the breach thereof.
17 C.J. 988-9; Lizana v. State, 109 Miss. 464, 69 So. 292; Moore v. Lowrey, 74 Miss. 413, 21 So. 237; National Surety Co. v. Trustees of Runnelstown Con. School, 146 Miss. 277, 111 So. 445; Cooper v. U.S.F. G. Co., 186 Miss. 116, 188 So. 6; Boutwell v. Marr, 71 Vt. 1, 76 Am. St. Rep. 747; Annotation to Welborn v. Dixon (S.C.), 3 Ann. Cas. 407.
The domicile of the wife is that of the husband, and if she refuses to go and live with the husband at his domicile, during cohabitation, she cannot complain of damages sustained by reason of her refusal to live with him at the domicile of his selection and choice.
19 C.J. 414; Hairston v. Hairston, 27 Miss. 704, 61 Am. Dec. 531; Suter v. Suter, 72 Miss. 345, 16 So. 673.
P.L. Denton, of Marks, for appellees.
Ernest Carroll and Mattie Carroll were not man and wife. Even though they be considered as man and wife for the purpose of this suit, it is certainly true that no husband has a right to take away from her the separate property of his wife.
In construing statutory bonds, the law writes in all stipulations or obligations required by the statute, and the statutes of Mississippi in regard to plaintiff's bond in replevin require that the plaintiff shall enter into bond with ". . . sufficient sureties in double the value of the property to be ascertained by the valuation of the officer, conditioned that he will prosecute the writ to effect and without delay make return of the property to defendant, if return thereof be adjudged, and pay the defendant such damages as he may sustain by the wrongful suing out of the writ and also such costs as may be awarded against him . . ."
Sec. 3089, Code of 1930.
The damages of attorney's fees were incurred by the wrongful suing out of the writ. The terms of the engagement are general and unrestricted, and when the sureties executed the bond they had in view the guaranty of the obligations the principal, Ernest Carroll, had assumed when he wrongfully sued out the writ.
Sec. 3091, Code of 1930; 21 R.C.L. 975, sec. 27.
If the suing out of the writ of replevin by appellant was a wilful wrong on his part, an act of fraud, malice or oppression, then the defendant is entitled to punitive damages.
Smith Chevrolet Co. v. Finch, 150 Miss. 854, 117 So. 258; Thornton v. Gardner, 134 Miss. 485, 99 So. 131.
In cases where the jury, as reasonable men, are entitled to infer from the testimony in the case that the plaintiff acted with wilful wrong, with malice, wanton disregard of the defendant, or with the intent to oppress, the jury can and should then return a verdict awarding punitive damages against the plaintiff in replevin. The jury could so infer from the fact that the affidavit was false in two respects; first, that the plaintiff owned the property; second, that it had been taken from his possession within thirty days.
Mars v. Hendon, 178 Miss. 157, 171 So. 880, 173 So. 286.
This is a suit brought in replevin by Ernest Carroll during the month of December, 1938, in the County Court, to obtain the actual possession of the household goods and other personal property, consisting of corn, groceries, chickens, ducks, dogs, etc., and all of which was alleged in the affidavit to be wrongfully detained by the wife of the plaintiff and by Bill Yandell, the manager of the plantation on which Carroll and his wife had resided during that year, and where she still remained. From a judgment in favor of the defendants "for 1.00 in actual damages and an attorney's fee of $75.00," rendered by the County Court and affirmed by the Circuit Court, the sureties on the plaintiff's replevin bond alone prosecute this appeal.
After having settled his account for the year 1938, it appears from the proof that Ernest Carroll applied to the plantation manager for money with which to meet a payment on his sewing machine, and which request was refused. Carroll had already agreed to make a crop on this plantation again for the year 1939 but became dissatisfied at the plantation manager's refusal to assist him in the manner stated, and he thereupon found a new location on a plantation of one L.A. Ouzts, who sent his truck to move the household goods and other personal property in controversy. Mr. Ouzts had ascertained in advance that Ernest Carroll had obtained some additional advances subsequent to the settlement of the 1938 account, the amount of which advances was tendered by him when the truck went to move the property. It appears that Mattie Carroll, the wife of Ernest, decided not to follow him to the new location upon being advised by an employee on the plantation where she had remained pending the proposed removal, and that the defendant, Bill Yandell, being unwilling to lose these tenants, returned to Mr. Ouzts the tender of payment for the advances, along with the empty truck. Thereupon, Ernest Carroll, still desiring to move to the new location where he had agreed to make a crop with Mr. Ouzts for the year 1939, sought advice as to how he might obtain possession and custody of the household goods and other property, and also the removal of Mattie and her children by her former marriage to the new location. He was then directed by Mr. L.A. Ouzts to an attorney at Clarksdale for legal advice. Carroll related the facts to the attorney and claimed the right to the immediate possession of the property as his own, and then signed the affidavit in replevin, which recited that the property had been wrongfully taken from his actual possession within the preceding thirty days, the affidavit being signed by his mark, since he was unable to read or write. Accordingly, he gave bond for the property with O.L. Ouzts and Harry Lipson as sureties. This was on Christmas Eve, and the writ of replevin was executed by the officer taking into his possession all the property in controversy and moving it to the plantation of Mr. L.A. Ouzts. The plaintiff intended and hoped that Mattie and the children would come on the truck to the new location. Being unwilling to move, they were left in the empty house that night until the defendant Yandell supplied them with additional household goods, groceries, etc., sufficient to enable them to remain there.
At the January term of the County Court, the plaintiff was induced to appear in open court and consent to a judgment in favor of the defendants, which recited that the household goods and other personal property were in truth and in fact the property of Mattie Carroll. Upon the entry of this judgment, a writ of inquiry was awarded to assess the damages for the alleged wrongful taking of the property. Before this issue was disposed of, Mr. L.A. Ouzts returned the property to the former domicile of Ernest Carroll and wife, where they remained and made a crop again during the year 1939. Ernest Carroll was introduced as an alleged adverse witness and testified to establish the claim of the defendants for damages against his sureties, and the proof showed that with the exception of a small portion of the property accumulated by the joint efforts of the husband and wife, it belonged to the defendant Mattie Carroll, and hence the rendition of the judgment herein appealed from.
The appellees contend that the plaintiff was not entitled to the possession of the property, involved for two reasons, (1) that it belonged to the defendant, Mattie Carroll, and (2) that he was not entitled to the possession thereof for the purpose of removal to the new location, since he was not legally married to Mattie Carroll. The proof disclosed, however, without conflict, that a ceremonial marriage had been celebrated between the plaintiff and Mattie Carroll about three years prior to that time. She then had a living husband from whom she had not obtained a divorce and whose whereabouts had been unknown for only two or three years. Under such circumstances the law will presume in favor of the validity of the second marriage that the former husband has either obtained a divorce or is dead, notwithstanding that his absence had been for a period of less than seven years. Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Sullivan v. Grand Lodge K.P., et al., 97 Miss. 218, 52 So. 360; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Ann. Cas. 1918E, 1230.
The husband has the right to choose and establish the matrimonial domicile, and it is the duty of the wife to acquiesce in his selection and follow him to the domicile of his choice unless the choice has been unreasonably and arbitrarily exercised, or where the comfort, health, and general well being of the wife would be jeopardized by such change of domicile.
Proof of the ownership by the plaintiff of the title to the property involved is not always essential to entitle him to the possession thereof for the purpose of having it moved to the new domicile selected by him.
The only question involved in this appeal is whether the defendants were entitled to recover the attorney's fee as against the sureties on the replevin bond. In the recent case of Cooper v. United States Fidelity Guaranty Company et al., 186 Miss. 116, 188 So. 6, it was held that in the absence of statute, attorneys' fees are not recoverable unless the facts show such gross or wilful wrong as to justify the infliction of punitive damages; and that sureties are not liable for or in respect to exemplary or punitive damages. It is argued, however, that the averment in the affidavit in replevin to the effect that the property had been wrongfully taken from the possession of the plaintiff within the preceding thirty days authorized an inference of malice or a purpose to oppress the defendant, and the case of Mars v. Hendon, 178 Miss. 157, 171 So. 880, 173 So. 286, is cited as authority for that view. That case held that such was true where the 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 the property; whereas, in the case at bar the plaintiff had been in the possession and enjoyment of the property within the preceding thirty days as the head of the family, and he was being deprived of its use and enjoyment by the attitude of the defendants, unless he had been willing to return to the former domicile and remain on the plantation from which he had the legal right to move. At least, his right to make such affidavit is not so free from doubt to characterize his action as wilful, oppressive or malicious when acting upon the advice of an attorney. Kalmia Realty Ins. Co. et al., v. Hopkins, 163 Miss. 556, 141 So. 903.
From the foregoing views, it follows that the judgment against the sureties for the $75 attorney's fee should be reversed, and that the judgment rendered against them for $1 as actual damages and the costs in the courts below should be affirmed.
Reversed and judgment here accordingly.