Tate v. Mitchell ( 1923 )

Cook, J.,

delivered the opinion of the court.

This suit was instituted in the circuit court of Pearl Fiver county, by appellees, W. I-I. Mitchell and Mrs. Lettie "Mitchell, his wife, against M. D. Tate, appellant, for damages alleged to have resulted from the wrongful removal of a wire fence from certain lots previously sold to appellees by appellant, the declaration being in two counts, one for two hundred fifty dollars for injury and damage to the soil, and the other for two hundred dollars for the value of the fence material removed. There was-a judgment for .seventy-five dollars against the defendant, and from this judgment this appeal was prosecuted.

It appears from the testimony that on February 26,1920, for a consideration of five hundred dollars, appellant, by warranty deed, conveyed to appellees lots 7 and 8, Square G of the plat of the town of Picayune, Miss., no reservation being made in this conveyance;- that in May thereafter a wire fence around three sides of these lots was torn down by a negro; that after the wire had been- removed from the posts, and while the negro was removing the posts, Lewis Howie, a son of one of the appellees, discovered that the fence was being removed and ordered the negro to stop; that the negro at once left the premises and the roll of wire was left on or near the lots.

Lewis Howie, a witness for appellees, testified that he and his mother interviewed appellant in regard to the removal of the fence and demanded pay for it; that appellant claimed .that he had reserved the fence and that it belonged to him, and stated that he had authorized the negro to remove it.

The appellant testified .that some time prior to the execution of the deed to appellees he had sold the fence to some negroes for the sum of six dollars; that he did not see the lots after he sold the fence to these negroes; that when he sold the fence it was his understanding that it would be removed immediately; that when he sold the lots he thought the fence had been removed; that he did not authorize any one to remove the fence after the lots were sold, and he particularly denied making the statements attributed to him by the witness Howie.

Appellee offered no direct testimony as to the value of the fence at the time of its removal, but W. H. Mitchell, one of the appellees, testified that he considered the lots damaged to the extent of two hundred and fifty dollars by the removal of the fences. Appellant and his witnesses testified that the fence was old and rotten, and that it could be replaced with new material of like kind for the sum of twenty-five dollars.

Upon this testimony the court granted several instructions which authorized the jury to assess punitive dam-, ages. We do not think there is any testimony in this record from which a jury would be warranted in finding that the acts and conduct of the appellant were characterized by willfulness, wantonness, or gross carelessness evincing a disregard of appellee’s rights, and consequently it was reversible error to grant instructions authorizing the infliction of exemplary damages.

Under the testimony in this case, appellee could not recover more than actual damages, and, for the error in these instructions, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.