Opinion
No. 31866.
October 28, 1935.
1. AUTOMOBILES.
In replevin for truck which was held by state highway patrolman upon discovery that plaintiff was hauling load exceeding that allowed by privilege tax paid by plaintiff, burden was upon plaintiff to show special permit, if one existed.
2. AUTOMOBILES.
Highway patrolman properly seized and impounded truck which was used to haul load exceeding that allowed by privilege tax paid by truck owner, pending necessary proceedings to enforce payment of additional license tax, where record did not show unreasonable delay in taking legal steps to enforce such payment (Laws 1934, chapter 126, sections 19, 21).
ON SUGGESTION OF ERROR. (Division B. Dec. 9, 1935.) [164 So. 590. No. 31866.]1. REPLEVIN.
Only issue permissible in replevin is general issue.
2. EVIDENCE.
Where party who has not general burden of proof possesses positive and complete knowledge concerning existence of facts which party having burden of proof is called upon to negative, or where evidence to prove fact is chiefly within his control, party who has not general burden of proof has burden to produce such evidence, although obliged to go no further than necessity requires.
APPEAL from the circuit court of Simpson county; HON. EDG. M. LANE, Judge.
W.W. Pierce, Assistant Attorney-General, for appellants.
The trial court erred in overruling appellants' motion for a directed verdict: (1) because the evidence does not show that Joe S. Price, one of the appellants, was in the actual possession of the truck at the time the replevin suit was instituted; and (2) because the court will not lend aid to a party litigant to relieve him from the consequences of his own wrongdoing.
Griffin v. Lancaster, 59 Miss. 340; Vaughn v. Huff, 99 Miss. 110; Cook v. Waldrop, 160 Miss. 862; Ainsworth v. Smith et al., 157 Miss. 202.
Before the jury would be warranted in awarding punitive damages to the appellee, the jury must find from the evidence that the appellant's conduct was in a wanton, willful and reckless disregard of appellee's rights.
Burns v. R.R. Co., 93 Miss. 816; Railroad Co. v. Burke, 53 Miss. 200.
A trial court may instruct a jury if they believe from the evidence that the defendant's acts were willful, wanton or so grossly negligent as to amount to willfulness, then they can award punitive damages. However, in the case at bar, the court did not observe that rule but peremptorily, on conflicting testimony, instructed the jury that it might find punitive damages without reference to first finding that the appellant's acts were willfully and wantonly done, or so grossly negligent as to amount to willfulness.
Railroad Co. v. Cole, 113 Miss. 898; Burns v. R.R. Co., 93 Miss. 816.
Under the facts shown by the record the appellee's damages, if any, were brought about by reason of his own illegal acts and that being true, he was not entitled to any damages or to the aid of the court in any respect.
Section 25, chapter 126, Laws of 1934; Section 5621, Code of 1930.
It is clear from the statute that a person operating a motor vehicle without a tag thereon for the proper tonnage and without paying the required privilege license tax as required by the provisions of house bill No. 3 of the acts of the Legislature, Extraordinary Session 1932, and chapter 126 of the General Laws of Mississippi, 1934, is guilty of a misdemeanor.
The law is well settled in Mississippi that the court will not lend aid to a party who grounds his action upon an immoral or illegal act.
Western Union Tel. Co. v. McLaurin, 108 Miss. 273, 66 So. 739; 1 Cooley on Torts, page 172.
The appellee here cannot avoid the fact that Greer, appellant's employee, was interfering with him (Haney) because he (Haney) was violating the law by not having procured a proper privilege license for his motor vehicle to haul thereon on the public highways of this state a three ton load.
The right to use a motor vehicle on the public highway is a privilege and not a vested right.
Packard v. Blanton, 264 U.S. 140; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.
Appellants are not liable to appellee for any damages he may have suffered by reason of having been detained because he was violating the law.
Hoffman v. McMullen, 83 Fed. 372, 45 L.R.A. 410.
The appellant, Joe S. Price, State Auditor, and E.H. Greer, patrolman, were authorized by law to enforce the provisions of the statute with reference to licensing and operating motor vehicles upon the public highways of the state.
Section 19, chapter 126, General Laws of Mississippi 1934; Chapter 138, Code of 1930; Sections 5582, 5583 and 5584, Code of 1930; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251.
Hannah Simrall, of Hattiesburg, for appellee.
Greer was acting under the direction and carrying out the instructions of Joe S. Price; and was doing this for the purpose of collecting the tax which the law made it the duty of the said Joe S. Price to collect.
While Joe S. Price did not have the actual possession of the said truck, he certainly had the constructive possession of it, because Greer was holding the truck solely and only as the representative of Price.
5 C.J. 443; Griffin v. Lancaster, 59 Mass. 340; Vaughn v. Huff, 99 Miss. 110, 54 So. 837; Furst v. Pease, 52 So. 257.
While section 7 of chapter 126, Laws of 1934, makes the maximum load carried the measure of the tax to be paid, said section also contains an exception or proviso which expressly authorizes the motor vehicle operator to buy a tag sufficient to cover the load ordinarily carried, and then secure a temporary permit for an unusual or extraordinary trip such as Haney was making. The appellants in this case made no pretense at showing that Haney was not operating under this special permit.
Counsel predicates his argument and contention on the theory that appellant Price had the right to seize and detain the motor truck of appellee Haney for the payment of such taxes as appellant Price conceived Haney to be due without first resorting to the courts to secure possession of the said truck and without giving Haney an opportunity to be heard.
This theory has been so uniformly condemned by this court until it would be a waste of time and an imposition on the court to indulge in an extended argument.
Holloway v. Jordan, 154 So. 340.
The record in the case at bar absolutely and wholly fails to disclose that appellee Haney was due any additional tax.
There is no provision in section 5582 of the Code of 1930, or any other section of the code, that authorized and empowered the State Auditor or his patrolman to deprive the appellee of the tag that he had bought and paid for and thereby strip his motor vehicle of any tag whatever.
That the acts on the part of appellant Price were willful, wanton and deliberate are vouched for by the record itself.
Hinton v. Sims, 158 So. 141; Gurley v. Tucker, 155 So. 189; Bounds v. Watts, 131 So. 804, 159 Miss. 307; Neal v. Newburger, 123 So. 861, 154 Miss. 691; Section 2903, Code of 1930.
Section 2903 of the Mississippi Code expressly authorizes the appellee in this case to bring this suit on the bond of appellant Price, "for the recovery of the damages that have been sustained" by the breach of duty on the part of appellant Price.
If the appellee in this case is not entitled to recover anything except compensatory damages, then there would have been no need in the Mississippi Legislature inserting section 2903 in the Mississippi Code of 1930.
Neal v. Newburger, 123 So. 861, 154 Miss. 691; Edward Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650; Levy v. McMullan, 152 So. 899, 169 Miss. 659; Mississippi Central Railroad Co. v. Aultman, 160 So. 737.
In the case at bar, there was no motion or request in the trial court asking the jury to separate the actual and punitive damages. The result is a general verdict and, consequently, the appellants cannot be heard to complain in this court. Particularly is this true when the appellants did not file a motion for a new trial or bring this question to the attention of the trial court.
Miss. Central Railroad Co. v. Aultman, 160 So. 737.
Penal statutes are to be strictly construed, and chapter 126 of the Laws of 1934 does not impose any penalty whatever on the violator of its provisions, except the penalties provided by said chapter. But if section 5621 is applicable, the record in the case at bar does not show that the appellee had failed to pay the taxes prescribed by the statute.
Appellee brought this action of replevin in the circuit court of Simpson county for the possession of a motortruck, and for damages for its detention, against appellants, Joe S. Price, state auditor, and Mississippi Fire Insurance Company, surety on his official bond. There was a judgment for appellee for the possession of the truck, which he had taken on a forthcoming bond, and for damages in the sum of one hundred dollars for its unlawful taking and detention.
Appellee was hauling for hire for the American Oil Company a truck load of gasoline, oils, and greases from Hattiesburg to Kosciusko. He was using a Ford truck, upon which he had paid the road and bridge privilege tax authorizing him to carry a maximum of one and one-half tons over the public highways of the state. On this particular occasion he was carrying gasoline, oil, and greases weighing five thousand nine hundred sixty pounds, or approximately three tons. When he reached Magee in Simpson county he was approached by one Greer, a highway patrolman employed by the State Auditor by virtue of the provisions of section 19, chapter 126, Laws 1934. Greer made an examination of the invoices and bills of the load and discovered that it amounted to about three tons, nearly one and one-half tons more than his privilege tax authorized. Greer removed the tag from the truck and demanded that appellee increase his privilege tax to cover three tons before he removed further. Appellee made an effort to secure the money to pay the additional tax, but was unsuccessful. Greer advised appellee that if he undertook to operate his truck over the public highway without paying the additional tax he would arrest him as he had a right to do under the law. The truck remained in Magee from the 8th to the 10th day of August, when appellee sued out the writ of replevin for the truck. The sheriff of the county thereupon took the truck in possession under the writ.
There was a conflict in the evidence with reference to whether Greer arrested appellee; the latter contended that he thought he was under arrest, while Greer testified that he made no arrest. Greer's testimony is corroborated by appellee's admission that he did not remain with Greer all the time.
There was no dispute as to the weight of the load, and none as to the privilege tax paid by appellee which was for a maximum load of one and one-half tons.
It is argued by appellee that the evidence failed to show that he did not have a special permit to haul that particular overload as authorized by statute. In the first place, the burden was on appellee to show the special permit, if it existed; that was a matter peculiarly within his knowledge. As a witness in his own behalf he admitted time and again, both in his direct and cross examination, that he was overloaded, and was making every effort he could to get the money to pay the additional tax. He said nothing about a special permit; if he had it, he certainly was called on to say so.
Greer's duties with reference to the truck are in part set out in the last paragraph of section 21, chapter 126, Laws of 1934, as follows: "All taxes, penalties and costs imposed by this act shall constitute a first lien on any motor vehicle operated in violation of the provisions hereof, and any such motor vehicle shall be subject to being seized and impounded to enforce collection thereof. Any sheriff, deputy sheriff, constable, police officer or any other officer authorized to make an arrest is hereby authorized to arrest without warrant any person operating or driving any motor vehicle contrary to the provisions of this act within the limits of their respective jurisdiction and/or to seize and impound any motor vehicle being operated in violation of the provisions hereof. In case of such arrest or seizure, proceedings shall be had as provided by section 5582 of the Code of 1930."
The court refused appellant's request for a directed verdict. We think this was error. Under the plain provisions of the statute, Greer had a right to seize and impound the truck pending the necessary legal proceedings to enforce the payment of the additional license tax. It is true he had no right to hold the truck indefinitely without taking steps for that purpose. However, the record does not show an unreasonable delay; he seized the truck on the 8th of August, and on the 10th appellee brought replevin for it. Appellee had an easy and effective way of regaining possession of his truck by paying the additional tax.
Reversed, and judgment here for appellants.
ON SUGGESTION OF ERROR.
The suggestion of error filed herein states as follows: "In the case at bar, the opinion reflects a complete misconception of the issues that were presented by the pleadings and relied on by the parties; and in furtherance of this misconception this court gratuitously introduced into its opinion an issue that was not only not relied on by the defendant, but one that is positively contradictory to the contentions of the defendant."
The proceeding in the court below was replevin for the recovery of the possession of a truck held up, or detained, by an officer of this state because of the payment of insufficient privilege license. The issue pleaded in the replevin, and the only one permissible, is the general issue. The question for determination by this court was whether the plaintiff, appellee here, was entitled to immediate possession of the truck held up.
It appears, as stated in the original opinion, that the appellee, Haney, had not paid a sufficient privilege tax for the amount being carried by his truck over the highways. There seems to be no dispute about this proposition. The officer observed the truck and noted that it seemed to be heavily loaded, and that the license tag was for one and one-half tons, and he requested Haney to show him his bills of lading or invoices showing the amount he was carrying, and these showed slightly under three tons. Thereupon, this officer took charge of the truck and removed the license tag. The appellee made efforts to secure the money to pay the additional amount of tax due, and was necessarily hindering in his journey until the amount could be raised, or until bond could be given, or other proceedings taken to secure possession of the truck.
Under the statutes (Laws 1934, chap. 126, secs. 19, 20) cited in the original opinion, the state had a lien upon the truck for the payment of the required privilege license, and as it had not been fully paid when suit was instituted, the plaintiff in replevin, appellee here, had no right to possession of the truck, and having no right to the possession of the truck, and the state having impounded it to secure the privilege tax, there was no damage, in a legal sense, to the plaintiff by such detention. Whatever damage he sustained was what is known as damages without injury.
It is urged, however, that there was no proof as to whether the plaintiff had paid the extra privilege tax in addition to the regular privilege tax to justify his carrying such a load, and that the burden was upon the state to show this, and that the state failed to meet it. We are unable to agree with this statement. We think it is a matter within the peculiar knowledge of the owner of the truck as to whether he had paid such extra license money. In 22 C.J., p. 81, sec. 24, under the heading "Effect of Peculiar Knowledge or Control of Evidence," it is stated that: "In the administration of justice it is often wise to place the burden of producing evidence on the party best able to sustain it, and ambiguity, concealment, or evasion react with peculiar force on a pleader who asserts a fact and fails to produce the evidence, which if his assertion were true, would be in his possession. Hence it is very generally held that where the party who has not the general burden of proof possesses positive and complete knowledge concerning the existence of facts which the party having that burden is called upon to negative, or where, for any reason, the evidence to prove a fact is chiefly, if not entirely, within his control, the burden rests on him to produce the evidence, although he is obliged to go no further than necessity requires." In case note 40 it is said: "There certainly can be no semblance of justice in relieving the party from making a disclosure who is in a position to make it, or in making an explanation which will excuse it, if there be such an explanation available to him," citing Jolliffe v. Northern Pac. R. Co., 52 Wn. 433, 100 P. 977. "(b) The existence of a license is a fact peculiarly within the knowledge of the person doing the act for which the license is required, and hence it is incumbent on him to show such license, even though the non-existence thereof is the gravamen of the action or proceeding against him." Farrall v. State, 32 Ala. 557; Williams v. State, 35 Ark. 430; People v. Boo Doo Hong, 122 Cal. 606, 55 P. 402, and other cases; 22 C.J. 81, sec. 24; Mississippi-Southern Digest, volume 12, entitled "Evidence," Key Nos. 91, 92, and 93; Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757; Abhau v. Grassie, 262 Ill. 636, 104 N.E. 1020, Ann. Cas. 1915B, 414, and Great Western R. Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199.
In addition to what these authorities have said the appellee in the case at bar had the burden of proving all the facts necessary to show his right to immediate possession of the truck when the suit was instituted.
The suggestion of error also quotes the following statement from the original opinion: "Under the plain provisions of the statute, Greer had a right to seize and impound the truck pending the necessary legal proceedings to enforce the payment of the additional license tax. It is true he had no right to hold the truck indefinitely without taking steps for that purpose." It is said that this is an accurate statement of the law according to the conception and theory of the appellee, and it is on this theory that the appellee tried this case; but that this statement of the law is exactly contrary to the conception and theory of the appellant, and directly in conflict with the theory on which the appellant tried the case.
We do not so understand the theory of appellant to be as contended by the appellant. It must be remembered that this suit is a suit for possession of the truck, and not a suit by the state to condemn the truck, nor is it a right of action for damages independent of the right of possession of the truck. In other words, the statement in the above-quoted part of the original opinion that Greer had no right to withhold the truck indefinitely without taking steps for that purpose is more a statement of the duty of the officer under such circumstances to act with reasonable dispatch. In the case at bar, the appellee was trying to make arrangements by which he could get a release of the truck, and was being indulged in that effort by the officer, and instead of appellee being damaged, it was beneficial to him. It was certainly the duty of the party operating the truck to secure the necessary privilege license, and it would have been natural had he paid this privilege tax when interrogated by the officer about the capacity of the load, and when the officer examined his bills of lading, to have produced his license or state the facts with reference to it.
The court has dealt with the case as presented by the record, and has decided it according to its conception of the law, and when the pleadings are considered, we see no other result that we could reach in the case than we have already reached.
The suggestion of error will, therefore, be overruled.
Suggestion of error overruled.