Dixon v. Harrison Naval Stores, Inc. , 143 Miss. 638 ( 1926 )

^* Corpus Juris-Cyc References: Assault and Battery, 5CJ, p. 701, n. 6; p. 702, n. 11. Appellant, Hilary Dixon, minor, by his mother as next friend, brought this action in the circuit court, of Harrison county against appellees, Harrison Naval Stores, Inc., and John Frantz, for a personal tort alleged to have been suffered by him at the hands of appellees, and recovered a judgment for one dollar, from which judgment he prosecutes this appeal.

At the time of the injury complained of appellant was a minor twelve years of age. Appellee, Harrison Naval Stores, Inc., was a corporation engaged in the retail grocery business. It was operating what is known as a Piggly Wiggly store in the city of Biloxi, and appellee Frantz was the manager of such business. Appellant's evidence tended to make the following case:

About the 1st of September, 1924, appellant's mother sent him into the city of Biloxi to buy a loaf of bread and a package of tea. Appellant went to Glennan's grocery store and bought the package of tea and asked for the bread, and was there informed that Glennan did not keep the kind of bread he wanted (Bond bread), and was directed to go to the Piggly Wiggly store to get the bread. Appellant paid Glennan for the tea and went to the Piggly Wiggly store, carrying the tea with him back in the store, where he got a loaf of Bond bread. He thereupon came back to the pay counter, where appellee, Frantz, the manager, was, and said to Frantz that he had gotten the bread in that store, but had gotten the tea at Glennan's, in reply to which Frantz told him, in substance, that his statement was not true; that he had gotten the tea from the Piggly Wiggly store; that he could not steal, and get away with it that way, at the same time jerking the package of tea from appellant, which he retained and put on the shelf in the Piggly Wiggly store.

Appellee's evidence tended to show that appellee Frantz spoke kindly to the appellant; that he used no force in taking the package of tea away from him; that in doing so he acted in good faith, believing that appellant had stolen the package of tea from the Piggly Wiggly store.

At the request of appellee the court gave the following, among other instructions:

"The court instructs the jury, for the defendant, that if the jury believe from the evidence that the defendant Frantz took away from the boy Dixon the tea, as alleged in the declaration, without having a right there to do, still if the jury further believe that in so doing the said defendant acted in good faith and without malice and oppression, and used no greater force than was reasonable under the circumstances, then the jury can only find for nominal damages, even though the jury find for the plaintiff."

Appellant argues that the giving of that instruction is such an error as ought to work a reversal of the judgment. It will be observed that by the instruction the court told the jury, in substance, that, even though appellee Frantz had no right to take the package of tea from appellant, still if in doing so he acted without malice, and used no more force than was reasonable under the circumstances, then the jury could only find nominal damages. Evidently the jury was influenced by this instruction to return the verdict they did, which was for only nominal damages. We are of opinion that the giving of the instruction was error; that it is not the law that one person may, even in good faith, using no more force than is necessary, unlawfully assault another, charge him with being a thief, and take his property away from him, and escape liability for only nominal damages. A person guilty of such conduct acts at his peril. He must know he is dealing with a thief. If he makes a mistake, he must suffer the consequences. The injury to the party assaulted and abused is equally as grave, whether the wrong against him was committed knowingly or innocently. If there be any degree of difference, the wrong done in good faith is calculated to do greater harm. It follows, from these views, that the court erred in giving that instruction.

Reversed and remanded.