Little Sandy Hunting Fishing v. Berry , 194 S.W. 1161 ( 1917 )

The judgment, so far as it is against the hunting and fishing club, is without evidence to support it. It did not appear that Holmes was authorized by the club to institute the forcible detainer suit against Berry, or that any one authorized by the club to act for it in the matter ever anew anything about the institution of the sui or the eviction of Berry by virtue of the process issued in it, until after April 6, 1912, when Holmes had the justice of the peace to dismiss the suit. We do not think authority on the part of Holmes to act for the hunting and fishing club could be implied from the fact that he was the keeper of the lake and clubhouse, or from the fact that as such keeper it was his duty to "look after everything and attend to the club property and the lake and all of its belongings." The institution of such a suit was not within the scope of any authority Holmes had to act for the club. 2 C.J. 851. Had it appeared that Berry had recently before the institution of the forcible detainer suit, and while Holmes was acting for the club in looking after the property, become a trespasser on it, there might have been a question as to whether it was within the scope of Holmes' authority, as keeper for the club, to act for it in evicting him. But it appeared that Berry had been occupying the dwelling house and using the 34 acres of land since the death of his father in 1911 and during many years before that time.

We think the judgment is not erroneous so far as it is in favor of Berry against Holmes for $25 as actual damages. The latter, after instituting the forcible detainer suit, by the execution of an indemnity bond demanded by the constable as a condition upon which he would execute the process in his hands by evicting Berry, became a party to the unlawful act of the constable, and as such liable to Berry for the consequences thereof to him. While we agree with Holmes that it appeared that the hunting and fishing club was the owner of the 34 acres of land and entitled to the possession thereof, and that Berry was in the attitude of a trespasser thereon, we do not agree that it would have been lawful for the club, or that it was lawful for him (Holmes) on its behalf, to forcibly evict Berry from the land. The law as determined by the courts of this state is to the contrary of such a contention. Sinclair v. Stanley, 69 Tex. 718, 7 S.W. 511; Baker v. Cornelius,6 Tex. Civ. App. 27, 24 S.W. 949; Crawford v. Thomason,53 Tex. Civ. App. 561, 117 S.W. 181. But we think the judgment, in so far as it is in Berry's favor against Holmes for exemplary damages, was unauthorized. Such damages are allowable "only when there is misconduct and malice, or what is equivalent thereto. A tort committed by mistake, in the assertion of a supposed right, or without any actual wrong intentions, and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of damages for punishment where the doctrine of such damages prevails." 2 Suth. on Dam. 1095; Jacobs v. Crum, 62 Tex. 401; Anderson v. Larremore, 1 W. W., § 94.9. Holmes was not present when Mooney evicted Berry. He had nothing to do with the wrong to Berry other than to agree, by the bond he executed, to indemnify Mooney against any liability he might incur in serving the process in his hands. The testimony indicates that Holmes, in executing that bond, acted in good faith, believing the process was lawful and authorized the eviction of Berry. The justice of the peace who issued the process testified:

"I got out the papers myself. Holmes had nothing to do with getting them out. Holmes merely asked me to get out the proper papers for a forcible entry and detainer suit or proceeding, and he never either issued any papers or served any papers. Such papers as were issued, I issued them and turned them over to my constable to serve. I exercised my judgment as justice of the peace in getting out what papers were got out, and Holmes told me what he wanted done. He told me he wanted possession of the house and the property, and I did the best I could in following the statute to select a remedy to get possession of the property for Holmes. He did not say whether it should be by this process or that process, but that was a matter left to me."

Mooney, the constable, testified:

"Neither Holmes nor any of them told me to put him (Berry) out. I told him I was going up there to do that work, and he said that was what they made that bond for. I did not tell him that I was going to put him out. I just told him that I was going to serve those papers. I don't know whether Holmes ever saw any of those papers but this bond. I had not fixed up that bond. Mr. Toney (the justice of the peace) had fixed it up, and I had carried it down there. Now, whether Mr. Holmes had ever saw any of the rest of the papers — he did not after I got them. I did not tell him what I was going to do. He was sick that day and lying on the bed."

In so far as the judgment is against the hunting and fishing club, it will be reversed, and judgment will be here rendered that Berry take nothing against it. In so far as the judgment is against Holmes, it will be so reformed as to deny Berry a recovery of anything as exemplary damages, and to award him a recovery of $25 as actual damages, and, as so reformed, will be affirmed.