SOVEREIGN CAMP, W.O.W., v. BOYKIN

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Docket Number

No. 33253.

Attorney(S)

Eastland, Eastland Ormond, of Ruleville, for appellant. Appellee is not entitled to one-half of the monument benefit as part of the total and permanent disability benefit under his contract. Sec. 61c, Constitution, Laws, and By-Laws and Beneficiary certificate. Even if appellee had been entitled to one-half of the monument benefit as part of the total and permanent disability benefit his rights thereto is res judicata; appellant being guilty of no fraud. Stewart v. Stebbins, 30 Miss. 66; Burford v. Kersey, 48 Miss. 642; 34 C.J., page 818, par. 1236, and page 909, par. 1322; Vinson v. Colonial Mortgage Co., 116 Miss. 59. Ignorance of the right to the additional disability benefit at the time the first suit was filed does not give appellee the right to file an additional suit. State v. Morrison, 60 Miss. 75. Appellee's payments of premium were voluntary payments, made without compulsion or fraud, and with a full knowledge of the facts, and cannot be recovered back. Sovereign Camp v. Waggoner, 173 So. 424; 2 Elliott on Contracts, page 630; 49 C.J. 737; McLean v. Love, 157 So. 362; 21 R.C.L. 170, pars. 201-202. Punitive damages cannot be assessed against appellant because appellant has been guilty of no intentional or wilful wrong, or has committed no gross fraud, and the instructions therefor were without any support in the evidence. American Ry. Express Co. v. Baily, 107 So. 761; Y. M.V.R.R. Co. v. Haride, 55 So. 967, 100 Miss. 132; I.C. Railroad Co. v. Ramsey, 127 So. 725, 157 Miss. 83; Cable v. Bowlus, 21 Ohio Ct. 53. For breach of contract punitive damages are not allowed unless attended by intentional wrong or gross fraud amounting to an independent tort. Hood v. Moffett, 109 Miss. 757, 69 So. 664, L.R.A. 1916B 622; American Railway Express Co. v. Bailey, 107 So. 761. Appellant could not be liable for punitive damages for defending a suit against it in a legal way, even though the court should decide that its defense, or its construction of a contract, was not well taken. 62 C.J. 1103, par. 18. It is not fraud if one misapprehends, and misapprehending misstates the legal effect of an instrument. Maine Mutual Ins. Co. v. Hodgkins, 100 A. 467; 26 C.J. 1208. The breach of the fiduciary relationship as alleged by appellee was in the answer to the interrogatory. At the time the interrogatory was answered suit had been filed, appellee was represented by counsel, and appellee had already filed his suit charging appellant with fraud and misrepresentation. There was certainly no breach of trust, and in answering said interrogatory appellant was only called upon to tell the truth in said answer as it understood it. O.B. Triplett, Jr., of Forest, and Homer Currie and J.D. Martin, both of Raleigh, for appellee. One-half the monument benefit constituted a part of the total, permanent disability benefit due appellee. Sec. 5171, Code of 1930; Masonic Benefit Assn. v. Dotson, 111 Miss. 60, 71 So. 266; Sovereign Camp, W.O.W. v. Farmer, 116 Miss. 626, 77 So. 655; Sovereign Camp, W.O.W. v. Waggoner, 173 So. 424, 178 Miss. 418; Gully v. Lumbermen's Mutual Cas. Co., 168 So. 609, 176 Miss. 388. Appellant perpetrated fraud upon appellee in respect to this right. Restatement, Contracts, page 891, sec. 471, and pages 896, 898, sec. 474; 26 C.J., pages 1074-1078, secs. 17, 18 and 19; Townsend v. Hurst, 37 Miss. 679. Because of fraud the defense of res judicata was, therefore, unavailing. State v. Morrison, 60 Miss. 74; Burford v. Kersey, 48 Miss. 642; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Gaines v. Kennedy, 48 Miss. 103. The premium payments were not voluntary. Broom's Legal Maxims (7 Ed.), pages 257-261; Featherstone v. Stonewall Life Ins. Co., 165 Miss. 164, 147 So. 305; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 146 So. 134; Columbian Mutual Life Ins. Co. v. Gunn, 163 So. 454, 173 Miss. 897; 48 C.J. 753, sec. 311; Sovereign Camp, W.O.W. v. Rhyne, 158 So. 472, 171 Miss. 687. Appellant was guilty of fraud which warranted the infliction of punitive damages. 27 C.J. 104, sec. 265; Wheat Craft v. Myers, 57 Ind. App. 371, 107 N.E. 81; 4 Sutherland, Damages (4 Ed.), sec. 1178, page 4432; Neal v. Newburger, 123 So. 861, 154 Miss. 691; So. Bldg. Loan Assn. v. Dinsmore, 144 So. 21, 225 Ala. 544; Bigelow, Fraud, page 513; Abbotts, Proof of Facts (3 Ed.), page 667; Kroger Grocery Baking Co. v. Harpole, 166 So. 335, 175 Miss. 227; 38 C.J., pages 492, 493, secs. 181 and 182; 37 C.J., page 78, sec. 483.

Judges

Griffith, J., delivered the opinion of the court.

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SOVEREIGN CAMP, W.O.W., v. BOYKIN.

1. FRAUD.

Where a party is entitled to inquire of another, who is required to respond, respondent is guilty of fraud if he knowingly makes any material misrepresentation or conceals any material fact, which misrepresentation or concealment he should reasonably anticipate will be relied upon by inquirer to his hurt and to respondent's advantage, and if inquirer in fact so relies.

2. FRAUD.

Where fraud is grossly unjustifiable, punitive damages may be awarded, in discretion of jury.

Griffith, J., delivered the opinion of the court.

When a party is entitled to inquire of another, and the position of that other is such as to require of him a response, which is the case here, the respondent is guilty of fraud if he make any material misrepresentation knowing it to be such, or if he conceal any material fact, which misrepresentation or concealment he should reasonably have anticipated would be, and in fact, was, relied upon by the inquirer to his hurt and to the profit or advantage of the respondent. And if the fraud be grossly unjustifiable, punitive damages may be awarded, in the discretion of the jury.

Although the facts are close, we have concluded that there is sufficient evidence in the record, which the jury had a right to believe and did believe, to bring into application the salutary rule stated in the foregoing paragraph; and the judgment will therefore be affirmed.

Affirmed.

SOVEREIGN CAMP, W.O.W., v. BOYKIN.

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