February 14, 1949.
1. Trespass de bonis asportatis — what is sufficient to sustain action.
An unlawful interference with, or exercise of ownership over, property to the exclusion of the owner, is sufficient to sustain the action of trespass de bonis asportatis, actual, forcible dispossession being unnecessary; so that when the plaintiff charged in her declaration that the defendant without her permission opened her purse and removed therefrom a ten dollar bill and carried it away without her consent, a good cause of action was stated.
2. Trial — motion for directed verdict.
On a motion for a directed verdict every fact which the evidence substantially tends to prove either directly or by reasonable inference is to be taken as true in favor of the party against whom the motion is made.
3. Trespass de bonis asportatis — when evidence sufficient to go to jury.
In an action of trespass de bonis asportatis when the evidence on behalf of the plaintiff is to the effect that the defendant was seen to go into the cabinet where plaintiff's purse was kept, and that plaintiff immediately thereafter went to the cabinet and found her purse open and a ten dollar bill missing therefrom, whereupon she accused defendant of taking it, which he admitted and handed the bill back to her, the evidence is sufficient to avoid a peremptory instruction for the defendant.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
L. Arnold Pyle, for appellant.
In determining the question of the propriety of granting a peremptory instruction for the defendant by the trial court, the testimony must be taken most strongly in favor of the plaintiff. Every material fact which the evidence tends to prove in plaintiff's favor must be taken as true, and all facts of which there is any evidence, however slight, and all inferences favorable to plaintiff which can logically and reasonably be drawn from the evidence must be taken as true. Anderson v. Cumberland Telephone Telegraph Co., 86 Miss. 341, 38 So. 786; Wise v. Peugh, 140 Miss. 479, 106 So. 81; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Dean et al., v. Brannon, 139 Miss. 312, 104 So. 173; New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Haynes-Walker Lumber Co. v. Hankins et al., 141 Miss. 55, 105 So. 858; Fore v. Alabama V. Ry. Co., 87 Miss. 211, 39 So. 493; Romano v. Vicksburg Ry. Light Co., 39 So. 781; Rhymes v. Jackson Electric Ry. Light Power Co., 85 Miss. 140, 37 So. 708; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Pitts v. Mississippi Power Light Co., 177 Miss. 288, 170 So. 817; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; Montgomery Ward Co. v. Windham, 195 Miss. 848, 16 So.2d 622; Suggestion of Error Overruled, 195 Miss. 848, 17 So.2d 208; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Davidson v. McIntyre, 32 So.2d 150; Allgood v. United Gas Corp., 37 So.2d 12.
Appellant's evidence clearly established that she had in her purse on the morning of May 27, 1947, a lady's slip, a ten dollar bill, two one dollar bills and some other items; that the purse was placed in a closed cabinet in appellee's store, a place where appellant usually kept her purse during working hours. Appellant's evidence further shows that there was taken from her purse on the morning of May 27, 1947, the lady's slip and a ten dollar bill. Appellant's evidence also shows that appellee was seen fumbling in the cabinet where the purse was and that when appellant looked in her purse a few minutes later the slip and ten dollar bill were missing. Appellant's evidence shows that the slip and ten dollar bill were taken from her purse without her knowledge, permission or consent, and in fact, against her will. Appellant's evidence further shows that appellee admitted going into her purse on this occasion and also that appellee tried to obtain forgiveness from appellant by offering her a raise in salary, two new dresses and other items. This evidence, we earnestly urge and insist, makes more than a prima facie case of wanton, wilful, unlawful and malicious trespass against appellant by appellee for which appellant is entitled to recover actual, compensatory and punitive damages. Wilson et al. v. Kuykendall, 112 Miss. 486, 73 So. 344; Bonnelli et al. v. Bowen, 70 Miss. 142, 11 So. 791; Commercial Credit Co. v. Spence, 185 Miss. 293, 184 So. 439; D'Aquilla v. Anderson et al., 153 Miss. 549, 120 So. 434; D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770; Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753.
Harold Cox, for appellee.
The trial court properly awarded a peremptory instruction to the appellee in this case. By way of summary, the appellee was not liable to the appellant for the recapture of his merchandise. The evidence in this case does not show that the appellee even removed his own merchandise from appellant's purse but all of the evidence shows to the contrary. Even less, as to the ten dollar bill, is there any substantial evidence in this record to show that appellee ever had his hands on a ten dollar bill belonging to the appellant, or that he ever removed any money from her purse. On the contrary, he emphatically denied having removed any money from appellant's purse, and his testimony is certainly more reasonable and credible than the mere suspicious inferences projected by the appellant as her proof in this case. It follows, as the night the day, that no judgment could have been entered or approved against the appellee on this record, and that the granting of the peremptory instruction was therefore eminently proper.
As this court said in Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301: ". . . Where it is manifest that no reasonable man engaged in a search for truth, uninfluenced by improper motives or considerations (e.g., passion, prejudice, or corruption), would accept or act on the evidence, the jury should not be permitted to consider it."
The element of chance that a jury might return a verdict for a plaintiff does not vest him with a right to have a jury guess with a doubtful witness as to the facts in reaching a given conclusion. As this court said in Y. M.V. RR. Co. v. Lamensdorff, 180 Miss. 426, 178 So. 80: "Whatever a jury here or there might chance to believe, we must require that the evidence upon which they act must be within state-wide legal standards, and one of these, as said, is that the evidence must be substantial and must be reasonably believable."
In Mutual Benefit Health and Accident Ass'n v. Johnson, 186 So. 297, in reiterating the rule in this state that a jury verdict cannot stand upon a mere scintilla of evidence or upon a mere possibility, and that in such case the trial judge must grant a peremptory instruction, this court said: "Under the well established rule in this court, there was no substantial evidence in this case by which the jury could have found as a fact that the infection in the nose was cause by the blow of the bucket upon the face near the nose of the insured. On this phase of the case the court should have granted the peremptory instruction herein."
In Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819, it is said: "It is the duty of the trial judge to direct a verdict for one of the parties when the testimony and all the inferences which may reasonably be drawn therefrom by the jury would be insufficient to support a different finding. Baltimore Ohio R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Chicago, M S. Paul R.R. Co. v. Coogan, Admr., 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041."
Since the appellee positively and emphatically denied that he ever entered appellant's purse, even to remove his own property and emphatically denied that he ever entered her purse and removed $10.00 from it, and such testimony is not disputed or contradicted, a peremptory instruction was proper on that ground.
In Jakup v. Lewis Grocer Co. et al., 190 Miss. 444, 200 So. 597, 600, the court said: "Courts are not required, they are not permitted, to lay aside common sense and the exercise of that critical judgment which years of experience with witnesses will produce, and accept as true any and every statement which some witness may be so bold as to make, simply because the witness, who has, in all reasonable probability, substituted an after-acquired imagination for facts, has sworn to it."
Lastly this court has made it crystal clear that a litigant without substantial evidence cannot expect to escape a peremptory instruction or to have a chance by mere reckless statements intermingling evidence and conclusions to woo a verdict from a jury. It is not enough that a litigant may lay claim to the slightest bit more than the least particle of evidence to escape the scintilla rule. This court said in Thomas v. Williamson, 185 Miss. 83, 187 So. 220: "We have recently had occasion to observe, without elaboration, that the scintilla rule of evidence is not recognized in this state, Mutual, etc. Ass'n v. Johnson, 186 So. 297, but we have not meant to say that if there be slightly more than the least particle, or a particle more than the slightest trace, this will be enough to avoid the rule in this state as to a scintilla of evidence. The attitude of our jurisprudence has been so far away from any such a conception of the scintilla rule that in at least three opinions of this court, Wooten v. Mobile Railroad Co., 89 Miss. 322, 42 So. 131; Clark v. J.L. Moyse, Miss. 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351, it was said that if, upon the evidence, it would have been the duty of the court to set the verdict aside, a peremptory charge would be proper."
Indeed, the trial court would have been thoroughly justified alone in granting the peremptory instruction, as this court said in Watkins v. Board, 113 Miss. 38, 73 So. 867, "upon the theory that the record makes a frivolous law suit."
Mrs. Ola Blankston sued Oscar Dumont in the Circuit Court of Hinds County for $5,000, actual and punitive damages for an alleged trespass. Appellant, Mrs. Bankston, was a saleslady in Dumont's store on Capitol Street in Jackson. Appellant contends that appellee went into her purse, which she kept under a counter near the cash register in appellee's store, and removed therefrom a lady's slip, which she had taken out of stock and had told Mrs. Davis, another saleslady in the store, that she was going to have Mr. Dumont charge to her as soon as he returned to the store, he then being out for a short period. Appellant also charges that the appellee, in addition to removing the slip, also removed from her purse a ten dollar bill, belonging to her. At the conclusion of the trial, the lower court granted the defendant below, appellee here, a peremptory instruction to find for the defendant, and judgment was there so entered, and Mrs. Bankston appeals from that judgment.
It is not necessary that we here consider the alleged trespass in removing the slip from Mrs. Bankston's purse, for we must reverse the judgment of the lower court because the case made out regarding the ten dollar bill.
Trespass de bonis asportatis is a common law action brought by an owner of goods to recover damages for taking and carrying them away, and it is no defense that the defendant afterward returned the goods. (Hn 1) An unlawful interference with, or exercise of ownership over, property to the exclusion of the owner, is sufficient to sustain the action, actual, forcible dispossession being unnecessary. 63 C.J., Section 130, page 966. Consequently, when Mrs. Bankston charged in her declaration that Dumont, without her permission, opened her purse and went into it and removed therefrom a ten dollar bill belonging to her and carried it away, without her consent, she stated a good cause of action against him. Wilson et al. v. Kuykendall, 112 Miss. 486, 73 So. 344; Bonelli et al. v. Bowen, 70 Miss. 142, 11 So. 791; Commercial Credit Company v. Spence, 185 Miss. 293, 184 So. 439; D'Aquilla v. Anderson et al., 153 Miss. 549, 120 So. 434.
The only question we are called upon to decide is whether or not the lower court erred in granting a peremptory instruction for the defendant. This is the sole ground in the assignment of error.
(Hn 2) In 53 Am. Jur. 273, Section 340, it is said that a motion for a directed verdict is a quasi admission of the truth of the evidence. It admits the facts stated in the evidence adduced, and it admits as true every fact which the evidence tends to prove, and any favorable conclusion in behalf of the adverse party that a jury might fairly and reasonably infer from the testimony. Thus, the defendant, by motion for a verdict on the evidence introduced by plaintiff, admits not only the testimony to be true but also every conclusion which a jury might fairly or reasonably infer therefrom so far as the ruling on the motion is concerned. The same text on page 281, Section 348, further states that the question for a trial court in considering the direction of a verdict is whether admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with the inferences and conclusions to be reasonably drawn therefrom, and eliminating all conflicting facts and inferences, there is enough competent evidence to sustain a verdict should the jury find in accordance therewith. This same text on page 281 thereof, Section 349, further states: "A motion for a directed verdict invokes the consideration by the court of the validity of the assertion that the evidence is sufficient to support a verdict for the movant and that reasonable men can reach no other conclusion. In deciding a motion for a directed verdict the court must consider the evidence in a light most favorable to the party against whom the motion is directed; his evidence must be taken as true, every controverted fact must be resolved in his favor, and the strongest inferences reasonably deducible from the most favorable evidence should be indulged in his favor."
In Masonic Corporation v. Dennis, 175 Miss. 855, 168 So. 613, 165, this Court said: "It is the rule in Mississippi that everything must be considered as proved which the evidence establishes directly or by reasonable inference against that party who asks a peremptory instruction."
In Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, 348, it was stated: "We are of the opinion that the action of the court in refusing the peremptory instruction for the appellant was correct, for the reason that everything must be considered as proved which the evidence establishes, directly or by reasonable inference, against the party asking for a peremptory instruction."
(Hn 3) Let us examine the evidence in the light of these well-established rules of law. Mrs. Bankston testified that when Mr. Dumont came back into the store, she was waiting on a customer in the rear of the store. She noticed M. Dumont was in the cabinet where the salesladies kept their purses and that he shut the door quickly. When she got through with the customer, she went up there and got her purse and it was almost open — "wasn't zipped up" — and she then looked at her billfold and it was unzipped. The $10 bill was gone. She accused Dumont of taking the bill and he gave it back to her. The bill he gave her was introduced in evidence, though she admitted she could not swear it was the same identical bill he had taken. On cross-examination, she was asked: "But you didn't see Mr. Dumont go in your purse, open your purse, or take anything out of your purse?" Answer, "Mr. Dumont admitted it."
Mrs. Hazel Davis, another saleslady who was in the store at the time, testified in response to the question, "During the time that Mrs. Bankston and Mr. Dumont were upstairs, when Mrs. Bankston came back to the store, and they were up there talking about the incident, did you hear anything about a ten dollar bill at all at that time?" "No, I didn't hear them mention the ten dollar bill, I didn't hear that. The only thing I heard was why he went in her purse and took the ten dollars and he said, "I don't know why I did it."
We think this evidence was sufficient to take the case to the jury, and that the lower court erred in granting a peremptory instruction for the defendant. For this error, the cause will be reversed and remanded.
Reversed and remanded.