Gregory v. Williams ( 1948 )

On September 25, 1943, J.T. Williams Company, a partnership, entered into a written contract with Mid-South Paving Company, a partnership, and Trinidad Asphalt Manufacturing Company, a corporation, under which Williams leased to the other parties certain machinery and equipment constituting a plant for the manufacture of asphalt.

On November 29, 1944, Williams filed a suit in the Chancery Court of Hinds County, Mississippi, against the lessees to recover from them the following items under that contract:

$6,013.48, damage caused by the alleged neglect and misuse of the equipment by the defendants:

$360, the amount required to repair one Hercules Diesel Power Unit made necessary because of neglect and misuse of that unit by defendants;

$365, the value of one fuel pump, and

$225, the value of one steam generator, which two articles, complainants alleged, defendants failed to return to lessor;

$1,440, estimated freight had the equipment been reshipped from Kolola Springs, Mississippi, to Demopolis, Alabama, and

$1,121.37, expense incurred by complainant in dismantling and loading the plant onto freight cars at, or near, Kolola Springs for shipment to a purchaser thereof from lessor.

After decision in the Chancery Court the case was appealed to this Court and is reported in Williams v. Mid-South Paving Co.,200 Miss. 103, 25 So. 2d 792, 795. The cause was remanded and limited to the claimed liability for (1) repairs to the Diesel Unit, (2) failure to return the fuel pump, (3) failure to return the steam generator, and (4) for the estimated return freight charges.

After remand to the Chancery Court the cause, by agreement, was transferred to the Circuit Court. On February 12, 1947, a declaration was filed in the Circuit Court for recovery of the four items just mentioned. On the trial the jury found that defendants owed plaintiff $150 for repairs to the Diesel Unit and $75 for failure to return the fuel pump, and, pursuant to directions from the trial Judge, $496.79 for estimated amount of freight to return the property to Demopolis. It returned a verdict for defendants on the charge of failure to return the steam generator. Judgment was, therefore, entered for plaintiff against defendants for the sum of $721.79, from which defendants appeal.

The judgment was taken in favor of Mrs. Starlight B. Williams alone. It is contended by appellants that this could not legally be done; that it is not shown that Mrs. Williams was the sole owner of the rights of lessors under the contract. The rental contract was signed in the name of J.T. Williams Company "By J.T. Williams, One of the Partners," and recites that at that time the partnership was composed of J.T. Williams, Mrs. Starlight B. Williams and H.L. Downing. An amended bill of complaint, based upon this contract, was filed in said Chancery Court suit November 29, 1944, and it is therein recited that the partnership was then composed of J.T. Williams and Mrs. Starlight B. Williams. There was no pleading in that chancery suit challenging the right of J.T. Williams and Mrs. Starlight B. Williams to bring that suit. On September 5, 1945, the said Chancery Court entered the following order:

"Upon the suggestion made in open court of the death of J.T. Williams, one of the complainants, and that the remaining complainant, Mrs. Starlight B. Williams, is the sole legatee of the said J.T. Williams, deceased,

"It is hereby ordered and decreed that the said cause is revived in the name of Mrs. Starlight B. Williams sole complainant herein."

No point appears to have been made as to the correctness of that order.

In the opinion of this Court on said appeal it was said: "On November 29, 1944, the original bill in this cause was filed against appellees as defendants in the chancery court. J.T. Williams and Company, appellants here, complainants there, was a copartnership composed of J.T. Williams and Mrs. Starlight Williams, his wife, after purchase by Mr. Williams of the interest therein of his former partner Downing, who subsequently died. Mr. Williams later died, and the suit was revived in Mrs. Starlight Williams, his widow, sole heir at law, and executrix."

After the remand by this Court and the transfer to the Circuit Court no plea of misjoinder or non-joinder of plaintiffs seems to have been interposed. See Sections 1750, 1751, and 1459, Mississippi Code of 1942. We, therefore, conclude this contention is not well taken.

The trial judge instructed the jury to find for the plaintiff for $496.79 for return freight. The contract provides that ". . . at the expiration or earlier termination of this contract, tenant is to deliver and surrender said equipment and plant to landlord to a place to be designated by landlord, and pay return transportation on same in equal amount to the cost of transporting the same from Demopolis, Alabama, to Kolola Springs, near Columbus, Mississippi." Lessors, who are termed "landlord" in the contract, sold the asphalt plant loaded on railroad cars at or near, Kolola Springs, from which point it was shipped to the purchaser in the State of New York. Lessors, the vendors, paid no freight, and it is not shown that freight was deducted from the purchase price. Lessors did not designate any place to which the plant was to be transported nor did they make any request of the lessees to pay freight to any designated place or to return the same to Demopolis, Alabama. This provision was inserted, not as additional rent, but as reimbursement to lessors in case they had to incur transportation charges in transporting the plant to some other place. No such charge was incurred or paid. It was error, in our opinion, to allow a recovery against defendants for this item.

Appellants offered evidence, as recoupment against the demands of the plaintiff, of damage to them resulting, as claimed, from the unfit condition of the machinery to do the work, alleging a breach of the contract by plaintiff in that respect. The lower court confined that evidence to the particular items on which the suit was based as set out above. Appellants say this was error. We think the effect of the former decision by this Court was to confine the evidence to said specific items.

Plaintiff obtained two instructions telling the jurors if they believed "from the evidence" certain facts, they would find for the plaintiff, thus omitting the qualifying phrase "preponderance of" before the word evidence. Appellants say that is reversible error. No case is cited so holding. It is true the verdict of the jury should be based upon the preponderance of the evidence, which means the superior or greater weight of the credible evidence — "evidence more convincing to the jury as worthy of belief than that in opposition thereto, or as such evidence as, when weighed with that opposed to it, has more convincing force." In other words, that evidence which, by comparison with the other evidence, has more convincing force and outweighs the other as to the probabilities. 53 Am. Jur. 555, sec. 744. And the instructions should so tell the jury. However, it is a proper assumption unless the contrary is shown, that the verdict represents the conclusion of the jury upon the comparative force and weight of the evidence. This court will not disturb that verdict, merely on the ground the evidence does not justify it, unless it is manifest it is against the great weight of the evidence. Now, the two instructions in question told the jurors their verdict must be drawn from the evidence, not from speculation, or imagination, individual opinions, or anything outside the evidence introduced before them. The verdict was their conclusion upon the comparative weight and value of the evidence. That question was necessarily inherent in their deliberations. We do not see how they could have been misled by the omission of the words "preponderance of," or similar words. However, there is authority directly on the point in this State. In the case of Transcoastal Oil Co. v. Dr. V.B. Martin, No. 33,489, on the docket of this Court, but which we have not found reported in the books, the specific question was involved. The instruction was if the jury believe "from the evidence" rather than "if the jury believe from a preponderance of the evidence." In that case, as in this, no other instruction was granted, or requested, containing the words "preponderance of," or equivalent words. That was one ground strongly argued for reversal. The Court affirmed the case through the Chief Justice without an opinion January 9, 1939.

Again, in Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287, the form of the instruction, in respect to the aspect under consideration, was approved.

Summed up: An instruction containing the word preponderance, or weight, or some such synonymous phrase, descriptive of the evidence, should be given the jury for its guidance, if requested, but if not so given, we will not reserve in a civil case where the instruction given tells the jury to base its verdict upon the evidence, unless the record discloses the jury was misled, or the failure to give such instruction resulted in a miscarriage of justice. Neither result appears in this case.

Judgment will be entered here for appellee for $225.00 with interest thereon at six per cent per annum from May 10, 1947.

Affirmed in part, reversed in part and judgment here for appellee.