Opinion
No. 32899.
November 22, 1937.
1. TROVER AND CONVERSION.
Measure of actual damages for conversion of property is its value at time of conversion with interest.
2. SHIPPING.
In action for conversion of boat, where there was no conversion of equipment shown and no proof of its separate value at time of sale or at time of alleged conversion, evidence of value of boat apart from equipment was insufficient to raise jury question.
3. SHIPPING.
In action by buyer, still owing balance, against seller, for conversion of boat, evidence did not warrant submission of question of punitive damages to jury.
4. SHIPPING.
Where buyer, still owing balance, sued seller for conversion of boat alleged to have occurred when boat was placed at seller's wharf and seller refused to surrender possession, case presented an issue to be determined by jury under proper proof and instructions as to measure of actual damages for loss sustained.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Mize, Thompson Mize, of Gulfport, for appellant.
Vol. 13 Encyc. of Evidence, page 74, states the nature of sufficiency of acts that would constitute trover and conversion: "Broadly stated the acts ordinarily regarded in law as being sufficient to constitute conversion fall within the limits of one of four classes, viz.: a taking from the owner without his consent; an assumption of ownership; an illegal use or abuse of the property in controversy; or an unlawful detention after demand and refusal."
The facts in the case at bar are not strong enough even when taken most favorably for the appellee to show any act constituting conversion. The facts as testified to for the plaintiff did not show a tortious taking of the boat and did not even show that Clark was deprived of the boat's possession nor did the facts show that Clark had a right to the possession of the boat. These elements are essential for trover and conversion to lie.
26 R.C.L., page 1098, sec. 33, and page 1122, sec. 33.
There was no tortious act shown, no malice nor ill-will. The boat was merely left at the wharf of Skrmetta by one of the plaintiff's men. Skrmetta did not ask these men to tie the boat up there and he did not know that it was left there.
The facts in the case are not even strong enough to make Skrmetta liable for a simple trespass.
Ragsdale v. Williams, 30 N.C. 498, 49 Am. Dec. 406.
The burden of proof to establish the affirmative of the issue involved rested on Clark and it was necessary for Clark to show that the boat belonged to him, had been fully paid for and that the defendant tortiously converted same to his own use.
Wilson v. Wilson, 37 Md. 1, 11 Am. Rep. 518.
If Skrmetta exercised any dominion over the boat his acts in doing so were not by duress over Clark nor was it shown that Clark lacked capacity to consent nor did Skrmetta do any fraudulent act.
Latimer v. Stubbs, 173 Miss. 436, 161 So. 869.
We submit that the court erred in refusing to direct the verdict for the defendant and in refusing to exclude the evidence.
The court erred in refusing the appellant's introduction of evidence relative to the indebtedness incurred by appellant on the bond. This evidence was most competent and material to show the measure of damages and would have shown that since Clark had had possession of the boat that bills on the boat or against the boat exceeded the boat's value. The measure of damages for the conversion of the property is the value of the property at the time of its conversion with interest thereon to the time of trial.
Section 2242, Code of 1930.
The court erred in holding that the appellee was entitled to punitive damages and in allowing such issue to be submitted to the jury. It is a familiar rule of law that punitive damages are not recoverable unless the action is attended by intentional wrong, insult, abuse or gross negligence amounting to an independent tort.
Am. Ry. Expr. v. Baily, 142 Miss. 622, 107 So. 761; Y. M.V.R.R. v. Hardy, 100 Miss. 132, 55 So. 967, 34 L.R.A. (N.S.) 742, Ann. Cas. 1914A 323; 13 Encyc. of Evidence, page 105; I.C.R.R. v. Dodds, 97 Miss. 865, 53 So. 409.
Assuming for the sake of argument that there was a conversion of the boat by Skrmetta still the court would not be justified in awarding exemplary damages for the reason that Skrmetta testified that had he sold the boat he intended to discuss the matter with Clark. This showed Skrmetta's good faith and that he did nothing intentionally wrong and this testimony stands uncontradictedly in the record and must be accepted as true. This good faith would show mitigation of damages and would exclude the right of the plaintiff to have an instruction authorizing punitive damages.
Hoyt v. Duluth I.R. Co., 103 Minn. 396, 115 N.W. 263; White v. Yawkey, 108 Ala. 270, 19 So. 360; Hotchkiss v. Hunt, 49 Maine 213.
It is also the law in this state that even if a wilful wrong is done but done in good faith that punitive or exemplary damages will not lie.
Biloxi City R.R. Co. v. Maloney, 74 Miss. 738, 21 So. 561.
The instruction complained of is manifestly erroneous in several particulars. First, it is the peremptory instruction to find for the plaintiff. If this court should decide that appellant's motion for a directed verdict was properly overruled still the court below was not justified in directing a verdict for the plaintiff at the close of all the evidence as there were a number of conflicting statements made by various witnesses and as it is the province of the jury to reconcile conflicting evidence, the court erred in taking this question from the jury.
Questions of fact are for the jury and the trial court can take a case from the jury only where there is no testimony that would warrant a jury if a witness were believed, in finding a verdict.
Harris v. State, 175 Miss. 1, 166 So. 392; Erwin v. State, 168 Miss. 145, 151 So. 176; Stokes v. State, 172 Miss. 199, 159 So. 294.
This instruction is also erroneous because it assumes that there is evidence that Skrmetta willfully, wantonly and maliciously and in utter disregard of the plaintiff's rights took the boat from the plaintiff. There is no testimony in the record to show that the taking, if the boat was taken, contained these elements.
Williams v. City of Gulfport, 141 So. 288, 163 Miss. 334; Washington v. State, 177 Miss. 248, 171 So. 20.
This instruction was further erroneous as it authorized the jury to assess punitive damages and undertook to lay down the rule as to the measure of damages in the case at bar.
Whitfield v. Whitfield, 40 Miss. 352; Bickell v. Coulter, 41 Miss. 368; Jamison v. Moon, 43 Miss. 598; Taylor v. Morton, 61 Miss. 24; Ingram-Day Lbr. Co. v. Robertson, 129 Miss. 365, 92 So. 282; Sumrall Motor Co. v. Creel, 130 So. 151.
It is a familiar rule of law that a plaintiff must prove every material allegation of his declaration by preponderance of the evidence, failing in which the verdict of the jury should be for the defendant.
Brister v. Dunaway, 115 So. 36.
Hewes Goodman, of Gulfport, and W.L. Guice, of Biloxi, for appellee.
The facts as testified to by the appellant himself made out a perfect case of unlawful taking and carrying away of the appellee's boat "Pal" by the appellant and consequently the court could not grant directed verdict for the appellant, but on the contrary, at the conclusion of all the testimony, correctly granted a directed verdict to the appellee on liability.
26 R.C.L. 937; Restatement, Law of Torts, page 566, sec. 221.
It is a well settled principle of law that unless title is retained by the seller that title passes to the buyer on delivery of the property whether the full amount of the purchase price has been paid or not. This is true not only in sales of personal property but in sales of real property, where in the sale of a parcel of real property the seller retains a vendor's lien for the unpaid purchase price. The vendor, on default in payment by the vendee, must go into court and foreclose his vendor's lien in order to obtain possession and title to the property sold. Likewise in the sale of personal property where the total purchase price is not paid the statutes of our state give the seller a purchase money lien on the property which he can enforce, after default, by a proper legal action.
First National Bank of Greenville v. Cook Carriage Co., 70 Miss. 587, 12 So. 598; Merchants Manufacturers Bank of Ellisville v. Phillip J. Toomer Lbr. Co., 115 Miss. 647, 76 So. 565.
In an action of trespass for injury to or the asportation of personal property, the measure of damages, as a rule, is the value of the property at the time of the trespass, if the plaintiff is entirely deprived of his property, or the actual loss sustained in case of a mere injury to the property. However, the damages are not always to be measured by the actual cost of the thing injured or destroyed. The whole loss sustained is to be taken into view, and this depends on its uses, its profits, the particular season or time, or occasion of the injury done, and the benefits or advantages lost thereby. The plaintiff may also recover compensation for incidental damage which is shown to be the natural and proximate result of the act charged, and also for mental suffering when the element of fraud or malice or like motive enters into the act of the defendant, as well as for all other elements of aggravation.
26 R.C.L. 972; Wilson v. Kuykendall, 112 Miss. 486, 73 So. 344; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Native v. Haverty Furniture Co., 154 So. 73; Conrad v. Pacific Ins. Co., 6 Pet. 262, 8 U.S. (L.Ed.) 392; Rose v. Story, 1 Pa. St. 190, 44 Am. Dec. 121; Kelley v. Schuyler, 20 R.I. 432, 39 A. 893, 78 A.S.R. 887, 44 L.R.A. 435; Gray v. Stevens, 28 Vt. 1, 65 Am. Dec. 216; 8 R.C.L., page 486; Harker v. Dement, 9 Gill. (Md.) 7, 52 Am. Dec. 670; Gulf, etc., R. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 1 L.R.A. 730; Post v. Gunn, 4 N.J.L. 61, 7 Am. Dec. 570; Weston v. Dorr, 25 Me. 176, 43 Am. Dec. 259; Daniels v. Brown, 34 N.H. 454, 69 Am. Dec. 505; Woolley v. Carter, 7 N.J.L. 85, 11 Am. Dec. 520; Murray v. Mace, 41 Neb. 60, 59 N.W. 387, 43 A.S.R. 664; Allred v. Bray, 41 Mo. 484, 97 Am. Dec. 283; Hite v. Long, 6 Rand. (Va.), 457, 18 Am. Dec. 719.
The jury would have been warranted in returning a verdict for punitive damages, and if anything, the verdict returned by the jury was very nominal.
While the boat was owned by appellee and in appellee's possession, appellant, from his own testimony, tried to sell the boat to several persons and authorized the man Mike to take the boat from appellee to the Bay of Biloxi where the boat was finally sunk and allowed to become worthless. Certainly, the exercising of such dominion over appellee's property was in such utter disregard of appellee's right as to warrant the jury in finding appellant's actions wilful and malicious and in warranting the jury in assessing punitive damages.
Wilson v. Kuykendall, 112 Miss. 486, 73 So. 344; D'Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Native v. Haverty Furniture Co., 154 So. 73.
The case at bar is not founded on the breach of a contract, but is a tort action, and in such action wherever malice, oppression or utter disregard for the plaintiff's rights are shown as mingled with the act or acts complained of, punitive damages may be awarded.
Vicksburg J.R. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Storm v. Green, 51 Miss. 103; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Robinson v. Goings, 63 Miss. 500.
It is an elementary rule of law that the court cannot grant instructions absolutely contrary to each other and, therefore, when the court granted a peremptory instruction to the appellee on the question of liability the court could not grant the instruction in reference to the jury finding for the appellant.
Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; Terry v. Smiley, 161 Miss. 31, 133 So. 662; Herndon v. Henderson, 41 Miss. 584; I.C.R.R. v. McGowan, 92 Miss. 603, 46 So. 55; Y. M.V. Ry. v. Cornelius, 131 Miss. 37, 95 So. 90; Brister v. Dunaway, 149 Miss. 5, 115 So. 36; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; C. G. Ry. v. Phillips, 160 Miss. 390, 133 So. 123; Herod v. Carroll County, 171 Miss. 217, 157 So. 533.
Argued orally by Webb Mize, for appellant, and by W.L. Guice, for appellee.
This is an appeal from a judgment in favor of the appellee, Joseph Clark, in the sum of $250, rendered by the county court and affirmed by the circuit court of Harrison county against the appellant, Marko Skrmetta, doing business as the Deer Island Fish Oyster Company, for damages on account of the taking and carrying away, and the resultant loss of appellee's trawl or power boat.
The appellant assigns as error the giving of a peremptory instruction on the question of liability, and the submission to the jury of an issue of punitive damages; also that the court erred in not granting the peremptory instruction requested by appellant.
It appears that the boat in question, together with the equipment thereon, consisting of two trawls, two side lights, running light, fog horn, bell, fire extinguisher, furnace, and cooking utensils, was purchased by the appellee, on April 4, 1932, for the price of $475 on which $100 was paid in cash, and the balance to be paid, within a period of one year, according to the testimony of appellant, from the earnings of the boat, which was to be operated for shrimping purposes, but which balance was not to be paid within any specified time, according to the contention of the appellee.
Practically nothing was done toward operating this boat until the latter part of 1935, when the same was turned over to one Joe Tompley to run, and later to Andrew Lechner. The testimony then shows that, while Lechner was in charge of the boat in behalf of appellee, "Something went wrong" with the engine, and it had to be towed to the wharf of the appellant on November 28, 1935, where it remained for a few days, during which time Lechner kept it pumped out to keep it from sinking. Upon his return about the fourth day to move the boat, Lechner found that some of the equipment had been taken off by the appellant's watchman and placed inside the shed to prevent it from rotting or becoming ruined, and it was shown, without conflict in the evidence, that such would have been the result if such equipment had been allowed to remain wet in the boat.
Lechner then testified that the watchman refused to give him the equipment and asked him to leave the boat there at the wharf, saying that the appellant had told him, the watchman, that he was going to sell it. Both the appellant and the watchman denied that the watchman was authorized by appellant to remove the equipment, or to refuse to surrender the possession to Lechner, and the watchman denied having refused to surrender either the possession of the boat, or its equipment.
However, the appellant admitted later having tried to sell the boat to one John Storz, saying to him that appellee had it in charge; that later he gave permission to a man named Mike to take the boat across the bay to the shipyard for the purpose of having it examined with a view of buying it. From other testimony in the case, it appears that Mike took the boat to the shipyard, where he learned there were outstanding liens for repairs thereon in the sum of $130, in addition to the $375 unpaid balance on the purchase price, and he then left it there, where it was later allowed to sink. Lechner informed the appellee about the boat being at the shipyard, but no effort was made to recover possession of it, and no demand was made of appellant in that behalf, except that the wife of appellee called appellant over the telephone and demanded that the equipment be returned to the boat, whereupon appellant informed her that he had never been on the boat and had not authorized the equipment to be removed therefrom.
Appellant testified that, if Mike had decided to buy the boat, appellant intended to take the matter up with the appellee, and that he had repeatedly offered to accept from appellee the sum of $100 in payment of his claim of $375 for the balance of the purchase price then long past due, and further that the equipment was all at his wharf, where it could have been obtained, at any time, by appellee if desired.
Under this state of facts, and in the absence of any pertinent testimony as to the value of the boat at the time of the alleged conversion, the court gave appellee the peremptory instruction on the question of liability for the conversion of the boat, and permitted the jury to assess damages as compensation therefor, necessarily based on testimony as to the original sale price thereof some three years prior thereto, which included the equipment. There was no conversion of the equipment shown, and no proof of its separate value at the time of the sale, or at the time of the alleged conversion of the boat.
The well-settled rule as to the measure of actual damages for the conversion of property is its value at the time of the conversion, with interest.
The proof contained in this record was not sufficient to enable the jury to intelligently fix the value of the boat, separate and apart from the value of the equipment at the time of the alleged conversion, and we are of the opinion that the testimony does not disclose a state of facts which would warrant the assessment of punitive damages.
The case, hovever, presents an issue to be determined by the jury under proper proof and instructions as to the measure of actual damages for the loss sustained.
Reversed and remanded.