Opinion
No. 40382.
February 4, 1957.
1. Fences — fence erected along lot line by adjoining owner not contributed to by other adjoining owner — not a party fence.
Where fence had been erected along lot line by one of adjoining owners' predecessors in title, such fence was not a party fence when other adjoining owner and predecessor in title did not contribute to erection thereof. Secs. 989-1000, Code 1942.
2. Adjoining landowners — willful tearing down of plaintiffs' fence — allowance of both actual and punitive damages proper.
Where fence had been erected on lot line by plaintiffs' predecessor in title and over plaintiffs' protest adjoining owner tore the same down and commenced the erection of a new one in its place and his workers damaged plaintiffs' property during construction not withstanding protests of plaintiffs' attorney, allowance of punitive damages as well as actual damages was proper.
3. Damages — willful tearing down of fence — $1000 punitive damages — not excessive.
Allowance of $1000 punitive damages for wilful tearing down of fence referred to in Headnote 2 was not excessive in view of proof of defendant's financial worth as owner of real estate in city of assessed value of over $33,000 as well as ownership of other property.
4. Damages — punitive damages — defendant's financial condition may be shown.
In suit for punitive damages, it is proper to show financial condition of defendant.
5. Appeal — damages — determination of actual and punitive damages — for Trial Court — where evidence justifies assessment of.
Where suit was tried in County Court without a jury and County Judge rendered judgment for plaintiffs for $170 actual damages and $1,000 punitive damages, and on appeal Circuit Court affirmed the judgment for actual damages, but reversed the judgment for punitive damages, and evidence justified assessment of punitive damages, determination of such damages was for Trial Court and not for determination by Circuit Court, consequently judgment of Circuit Court would be reversed and judgment entered in Supreme Court reinstating judgment of County Court.
6. Damages — measure of — for destruction of a fence.
Trial Court properly assessed actual damages for destruction of the fence, the measure of damages being its value in its condition at the time of its destruction; its value to be ascertained by estimating the present cost of constructing a similar structure and deducting therefrom the depreciation which the old one had suffered by reason of age and use.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Adams County; JAS. A. TORREY, Judge.
W.A. Geisenberger, Joseph E. Brown, Natchez, for appellants.
I. The undisputed evidence in this case is that the cypress fence removed by the appellee over the strenuous objections of the appellants was the property of the appellants.
II. It was not a party fence within the meaning and requirements of Sections 989 through 1000, Mississippi Code of 1942, Annotated.
III. Even had it been a party fence, the appellee would have been prohibited by Section 996 of the Code from having it taken down or removed, and for such a wrong been subject to such penalties as a stranger would be.
IV. The fence having been built by the grantor of the Hunters, the appellee Williams could have made it a party fence by following the provisions of Section 1000 of the Code.
V. No attempt was made by the appellee to follow the law, but, on the contrary, with deliberate, intentional and oppressive wrong, he ignored the protests of the appellants and their attorney and not only tore down the fence in which he had no interest but replaced it with an unsightly wall of secondhand roofing material.
VI. It lay within the sound discretion of the Trial Court to assess exemplary damages on finding from the entire evidence a wrongful act intentionally performed with willfulness and gross disregard of the rights of the appellants. Milner Hotels v. Brent, 207 Miss. 892, 43 So.2d 654, 14 A.L.R. 2d 710.
VII. The allowance of $1,000 exemplary damages was appropriate and condign in view of the appellee's considerable wealth.
VIII. The finding of the Trial Court sitting without a jury should not be disturbed unless it be manifestly wrong. Ellis v. Pellegrini, 163 Miss. 385, 141 So. 273.
IX. The Circuit Judge was in error in undertaking to substitute himself as a trier of fact in the place of the actual Trial Judge. That substitution of view has been denied even to members of the Supreme Court. Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440, 15 So.2d 213.
Brandon, Brandon, Hornsby Handy, Natchez, for appellee.
I. The entire record herein discloses that the old fence had become so dilapidated that its removal was requisite; that there had been no assertion of exclusive title to the fence or any that would negative the understanding of M.L. Williams that it was a line fence, or to cause him to doubt his right to remove the same and replace it with a more substantial structure, and to repair the portion of the wire fence that was subject to repair.
II. This record is completely devoid of any evidence of willful wrong done by the appellee Williams that would entitle the appellants to exemplary damages.
III. The general rule in Mississippi is that compensation is the proper measure of damages for a tort if one is committed; and exemplary or punitive damages are allowed in addition to compensatory damages only for the benefit of the public and not for the purpose of enrichment of an injured party. Yazoo M.V. RR. Co. v. Hardie, 100 Miss. 132, 55 So. 967.
IV. Punitive damages are never allowable where the alleged transgressor has acted, as in the case at bar, without malice and in the bona fide belief that he was entitled to do as he did. Illinois Cent. RR. Co. v. Dodds, 97 Miss. 865, 53 So. 409; Yazoo M.V. RR. Co. v. Hardie, supra; Biloxi City RR. Co. v. Maloney, 74 Miss. 738, 21 So. 561.
V. Under the facts of this case and the jurisprudence of this State, punitive damages should not have been allowed. Yazoo M.V. RR. Co. v. May, 104 Miss. 422, 61 So. 449, 44 L.R.A. (N.S.) 1138; Neal v. Newburger Co., 155 Miss. 691, 123 So. 861; Hudson v. Louisville N. RR. Co., 30 F.2d 391; Black v. Robinson, 61 Miss. 54; Illinois Cent. RR. Co. v. Ramsay, 157 Miss. 83, 127 So. 725; Yazoo M.V. RR. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Bounds v. Watts, 159 Miss. 307, 131 So. 804; Milner Hotels v. Brent, 207 Miss. 892, 43 So.2d 645, 14 A.L.R. 2d 710.
The appellants and the appellee reside in the City of Natchez and their properties adjoin. The appellants acquired their property from Robert Hill who, prior to this acquisition, had built a yard fence along the line of the lot sold to the Hunters and had also built a residence on said lot at his own expense. The residence owned by appellee was built subsequent to the erection of this fence, and there was ample proof to establish as a fact that Robert Hill and the appellants had kept this fence in repair.
(Hn 1) Under Sections 989-1,000, Code of 1942, this was not a party fence since Williams and his predecessor in title did not contribute to the erection of this fence. Evans v. State, 159 Miss. 870, 132 So. 455.
In 1949 the appellee approached the appellants and expressed a desire to build a new fence in lieu of the one then existing and they were unwilling to do this. In 1953 the appellee contracted with a carpenter to enter upon the property and tear down the existing fence and build a new one. This work was started without the knowledge or consent of appellants. The appellants are husband and wife and the husband was away from home. When the men started tearing down the fence Ella Hunter protested and called the police who advised her that they could do nothing about it and suggeested that she get a lawyer, which she immediately did. The attorney came to the premises and talked with the men working on the fence and told them not to tear down the fence. He also told the appellee to have the men desist and that if they did not the appellee would be liable for any damages committed. The appellee admitted that the work was being done under his instructions and supervision. The men stopped work for the time being, but in two days they resumed the tearing down of the fence and over the protest of Ella Hunter they entered upon her premises and proceeded with the work. In so doing they came upon the Hunter land and cut down and trampled down the shrubs, flowers and rosebushes which were growing in the Hunter yard near the fence, all of which was over the protest of Ella Hunter. They also broke up and ruined a portion of a concrete gutter which was on the Hunter premises between the flower beds and the fence, and erected a fence of secondhand corrugated sheet metal. There was a dispute in the testimony as to whether the metal fence was placed on the line between the two lots, the evidence for appellants being that the metal fence was placed on the land belonging to the Hunters.
The appellants brought suit in the county court for actual damages and also for punitive damages, and by agreement of both parties the case was tried by the county judge without a jury and during the course of the trial, at the request of both parties, the county judge went and viewed the premises and rendered judgment in favor of appellants for $170.00 actual damages and $1,000.00 punitive damages.
On appeal to the circuit court, the circuit judge affirmed the judgment for the amount of actual damages awarded, but reversed the judgment for punitive damages and entered a judgment in favor of Williams, from which action the Hunters appeal and Williams cross appeals.
(Hn 2) In the case of Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654, we held that the elements justifying the allowance of punitive damages are: (1) a wrongful act, (2) intentionally performed, (3) gross disregard of rights, and (4) willfulness. According to the proof in this case all of these elements were present in the act of Williams in destroying the appellant's fence and replacing it with one which according to the proof is extremely unsightly. Ella Hunter protested and did everything she could to stop Williams and his men from proceeding with the destruction of her fence, even to the extent of fortifying her protest by having her attorney talk with Williams about the matter while the work was in progress, but Williams disregarded all of these protests and proceeded with the work without seeking legal advice, and we think that the allowance of punitive damages was proper.
(Hn 3) The amount allowed is not excessive in view of the proof as to the financial worth of appellee. According to the evidence he does not owe any money and is the sole owner of real estate situated in the City of Natchez of the assessed value of $33,445.00, and he frankly admitted that he would not take that amount for the property. In addition he owns eight houses in Centreville, Mississippi. In addition, he owns all of the capital stock in National Undertaking Company, which owns personal property assessed at about $10,000.00, and also operates a burial insurance business, the value of which is not shown by the record. (Hn 4) We have repeatedly held that in a suit for punitive damages it is proper to show the financial condition of the defendant.
(Hn 5) The circuit court was merely a reviewing court and the infliction of punitive damages, if the evidence warranted the same, was for the determination of the trial judge in the county court and was not for determination of the trial judge in the county court and was not for determination by the reviewing court. In Ellis v. Pellegrini, 163 Miss. 385 (391), 141 So. 273, we said:
"The conflicts in this evidence were for the determination of the county judge, and from it he was justified in believing, as he evidently did, that the driver of appellee's truck either saw the appellant's truck at the curb and backed into it without warning, or backed into the truck without exercising any care to ascertain whether it was in the way. Either finding would disclose such gross negligence on the part of the driver as to warrant the belief that he acted in reckless disregard of the consequences, and justify the imposition of punitive damages.
"If the evidence warranted punitive damages, the infliction thereof was for the determination of the trial judge, and not of the reviewing court. The awarding of punitive damages, when allowable, is discretionary with the jury or with the trial judge when trying cases without a jury.
"The circuit court should have affirmed the judgment of the county court, and its judgment of reversal must be reversed here."
In Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440 (448), 16 So.2d 213, as in this case, the suit was tried in the county court without a jury and on appeal to the circuit court judgment for the plaintiff was affirmed, and on appeal to this Court we said, "The decision of this issue was for the trial court upon the facts, and unless wholly unreasonable and untenable we must accept it regardless of what any individual member of this Court would, as a trier of the facts, have decided."
We conclude therefore that the judgment of the circuit court should be reversed and judgment here entered reinstating the judgment of the county court.
(Hn 6) On the cross appeal Williams contends that the county court erred in allowing damages for taking down the wooden fence. According to the proof, a man in the construction business testified that it would take $20.00 to replace the damage to the concrete drain and $204.61 to replace the fence which was destroyed. The county court allowed $150.00 for the damage to the fence as well as $20.00 for the damage to the concrete drain. On the cross appeal Williams contends that the cost of replacing the fence was not the proper measure of damages, but that the measure was the difference in the value of the Hunter property before and after the fence had been taken down, relying on the case of Sears-Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250. That case involved the recovery of damages for the destruction of a residence. In 15 Am. Jur., Damages, Section 117, page 527, it is said: "According to the weight of authority, the measure of damages for the destruction of a fence is its value in its condition at the time of its destruction. Its value is to be ascertained by estimating the present cost of constructing a similar structure and deducting therefrom the depreciation which the old one had suffered by reason of age and use."
We conclude that there is no merit whatsoever in the cross appeal. The judgment of the circuit court is therefore reversed and judgment will be here entered in favor of the appellants for the amount of the original award by the county court in the sum of $1,170.00 together with interest thereon from the date of the original judgment which is December 18, 1954.
Reversed and judgment here. Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.