Taylor v. Morton

61 Miss. 24

Opinion

Cooper, J.,

delivered the opinion of the court.

By the third instruction the jury were'told in effect, that if William Morton, the plaintiff, was entitled to recover the possession of the mule in controversy, he was also entitled to recover for the value of his time lost in prosecuting his claim. This was error. Cowden v. Lockridge, 60 Miss. 385. By the fourth instruction the jury were charged that if they believed from the evidence the taking or detention of the mule was attended by circumstances of fraud, wrong, or oppression they could allow the plaintiff his attorney’s fee. Since every violation of a legal right is a legal wrong, it would follow from the announcement of this proposition that exemplary damages might be allowed in all cases in which a recovery is had by the plaintiff. There must be more than a mere wrong, it must be a willful wrong, something akin to fraud, oppression, or malice. Whitfield v. Whitfield, 40 Miss. 352; Chicago Railroad Co. v. Scurr, 59 Miss. 456. We fail to discover any testimony from which the jury might have fairly inferred any willful wrong on the part of the defendant. To us it seems there was a bona fide claim of title both by the plaintiff and the defendant, and in such cases the value of the' property, with interest thereon, is the measure of damages.

Judgment reversed.