W. H. Fitzgerald , for the appellants.
1. The verdict was not warranted by the evidence. From the evidence a wrong had been perpetrated by Pattison against Goings, and the jury were warranted in finding a verdict against him because of the technical wrong, but not for exemplary damages. The suit was brought against Alex. Pattison and Jerry Robinson, and not the firm of Robinson Pattison. The judgment by default in the magistrate's court was against them individually, but in all of the proceedings of the circuit court, including the judgment, they were treated as the firm of Robinson
Pattison.
Against Robinson no verdict at all should have been found. He was in no way a participant in the wrong of his partner in trade, Pattison, but because he was such partner he was held equally liable. The jury thought that the wrongful act of Pattison was within the scope of the partnership business, and that Robinson, therefore, was equally to blame, or it may be they conjectured that the note sent by the witness Walter to Pattison contained directions or advice to Pattison to take the cotton, but that was the merest conjecture.
2. I submit that the conduct of Pattison evidenced no malice, recklessness, oppression, or outrage, and that the taking of the cotton was not attended with insult to any one. When the driver heard Pattison say he had a deed of trust upon the cotton and intended to hold it until "hell froze over," he did not insist upon carrying it to Thayer's, and aided Lucas in throwing off the cotton. There is no evidence of his having been compelled to do this. No deed of trust was introduced, but it was shown there was a deed of
trust in favor of Robinson Pattison. Pattison very evidently acted upon the belief that he had a right to the cotton by virtue of the deed of trust, and took it, as any man would have done under the circumstances. He committed no breach of the peace, was guilty of no fraud, and inflicted no real damage upon any one. The evidence shows that the only object Pattison had was to take into his possession and safely keep the cotton, that he was not actuated by fraud or malice, and that what he did was not reckless in contemplation of law. Not only no evidence has been adduced tending to prove that appellee sustained any real damage by the taking of the cotton by Pattison, but it has been abundantly proven by appellee's witnesses that he was really benefited. The jury could not have come to the conclusion, therefore, that appellee was entitled to compensatory damages. The affirmative proof of benefit effectually and necessarily excluded the idea of actual damage. They had a right to return a verdict of nominal damages, but that was the extent of their legal power, even if they were satisfied in their own minds from the evidence that the defendant, Pattison, did the taking recklessly or was actuated by malice and fraud, and was insulting, etc., because they could not award punitory damages, unless the evidence showed real injury to appellee. 1 Sutherland on Dam. 748, and authorities cited. Hence the instructions given by the court at the request of appellee was error.W. S. Eskridge , for the appellee.
1. The testimony in this ease, it is submitted, abundantly justified the verdict and judgment rendered in the court below. It is a case of inexcusable and unmitigated wrong and outrage. There can be, in no view of the testimony, any palliation for the conduct of the defendants in the court below.
A citizen, and, from the testimony, a good and orderly and debtpaying one, starts his wagon and team with three bales of cotton, to be delivered to Mr. Thayer, a merchant, in payment of a debt due him. While in transit, Mr. Pattison, one of the defendants, by force stops the wagon, makes the driver follow him, he walking in front, to the shed of the defendants, and there directs the driver to throw the cotton off and roll it into the shed; this the driver refuses
to do. Pattison then directs the witness, Elijah Lucas, to do it, who does do it. Here is a forcible seizure and appropriation of the property of another, without right or color of right.
The instruction given for the plaintiff by the circuit judge propounded the law correctly. Whenever there is an unlawful invasion of another's right the law implies damage. See Cooley on Torts 62 and 63, et seq.; 1 Hilliard on Torts, p. 74, § 6; Sutherland on Damages 2 and 9.
The instruction also directed the jury that if they believed the seizure of the property of the plaintiff by the defendant was without right, and done in a reckless, insulting manner, then they might find damages to the extent of the amount sued for. This propounded the law correctly. See Sutherland on Damages 71, 736. See Bell v. Morrison , 5 C. 68; Storm v. Green , 51 Miss. 103 ; M. C. R. R. v. Green , 52 Miss. 779 ; N. O., etc., R. R. v. Burke , 53 Miss. 201 .
2. That the defendant Robinson was a party to this conduct, and that it was done at his instance and by his direction, the jury were fully justified in believing.