27 A rk.] OF THE STATE OF ARKANSAS. 55 TErtm, 1871.] Bright°v. Bostick et al. BRIGHT v. BOSTICK et al. Assumrsrr-11 7 ill lie for use and oecuvation.—The action of assumpsit will lib for the use and occupation of property. VsaumeT —When set aside for excessive damages.—The verdict of a jury will not be set aside on the ground of excessive damages, unless the evidence, clearly show them to be so. APPEAL FROM SEBASTIAN CIRCUIT COURT. HON. E. D. HAM, Circuit Judge. B. T. DuVal, T. D. W. Yonley, for Appellant. Clark & Williams, for Appellees. SEARLE, J.—This was an action of assumpsit brought, in the Sebastian Circuit Court, by Pennywit, in his lifetime, against E. B. Bright, for the use and occupation of certain mill property in that county. After the death of the plaintiff, Pennywit, the cause was revived in the names of the appellees, as his execntors. The facts are substantially as follows: Pennywit, the testa-tor of the appellees, purchased the mill property, in question, under a decree of the Sebastian Circuit Court, sitting in chancery, and was awarded a writ of possession for the property, on the 23d of February, 1857, by that court. Bright, who was in possession, appealed from the order of the Circuit Court, granting the order of possession, which order was affirmed by this court, at the January term, thereof, A. D. 1860. Pennywit brought this suit to the August term A. D. 1860; of the Sebastian Circuit Court, against Bright, "to recover from him, for the use and occupation of said mill property, from to the date of the writ of possession, until he, Penny-wit, obtained possession under the decision of this court. A change of venue was taken, by agreement of parties, to the Fort Smith district of Sebastian county. Pennywit died and' the cause was revived in the names • of his executors, Charles G. Scott, Samuel L. Griffith and John S. Bostick. The ,de,
56 CASES IN THE SUPREME COURT [27 Ark. Bright v. Bostick et al. [DECEMBER 'fondant pleaded non-assumpsit, to which issue was joined. The cause was submitted to the .court sitting as a jury ; finding for plaintiff§ . And damages assessed at four thousand dollars. The defendant moved for a new trial upon the following .0.rouisids First, The finding of the court was contrary to the law and the evidence.' — Second, The court erred in yegard to the law of the , case. Third, The finding of the court was for the plaintiffs, when, by the law of the dand, it should have been for 'the defendant. Fourth, The damages assessed were .excessive. The court overruled the motion . for a new trial and rendered judgment against the defendant for the sum of four thousand dollars; whereupon he appealed to this court. The first three grounds for a new trial will be considered together, as they seem to present but one question, and that is, can assumpsit be maintained for use and occupation, in a base 'like the one under consideration ? The right to recover, for use and occupation, does not exist by the common law. It is entirely _a statutory remedy, and, in this State, the right to recover, by this kind of procedure, is conferred by statute. Section 13, Chapter '100, Gould's Digest, provides that "where lands or tenements are, held and , occupied by any person, without any special agreement' for rents, the owner' of such lands or tenements, his executors or administrators, may sue for and recover a , fair and reasonable compensation , for such use and occupation, by an action on the case, in any court having. , jurisdiction." This question has been settled in this court, in the cases of Clem vs. Wilcox, 15 Ark., 102, and Dell vs. Gardner et al., 25 Ark., 134. In the latter case, the question is very ably and elaborately discussed, by Chief Justice Walker, and his opinion settles, beyond a doubt, the right of the appellees, in this case, to recover in an action of assumpsit, for the use and occupation of the property in question. So fully is the ques-
2 . 7 Ark.] OF THE STATE OF ARKANSAS. 57 1571.] ' Bright y. Bostick et ah tion considered in that case, that we deem it unnecessary to do More than refer to that . decision. It was , found, on , the trial below, that Bright, the appellant herein, Was in _possession ,of the mill property during the time mentioned in the declaration. But one question remains to be : considered, namely, that , the damages were excessive. It was proven by one of the witnesses, Hayman, that the property was worth .tWo thousand dollars a year. Hay-Ilan further stated that he was a regular miller, and mill-wright ; that he had been engaged in the' business all 'his life, and that he was well acquainted with the mill in•litigation. Hammersly, another witness, testified that the mill and property Were : Worth' eight , hiindred dollars a year: - He 'further stated . that he had kit :little knowledge ai : to the value' of such property ; that Mi. ; Hayman was a regular Miller, and was well qualified to judge . Of the value. : Clark, another witness,' stated that • he thought that the use of the Mill wak worth' one thousand dollars; for the year 1857; ' and, eight hundred dol-lara ' per annuni for the yearS 1858 and 1859. He"stated that he Was ai miller. 'He also stated that Hayman was a good miller and mill-wright and a good judge of the value of mill-property. The above' IS the substance of What was proven on the trial, and We aie of ' opinion that , it clearly establisheS the fact, that the rent of the property; foi' , the time it was in the possession of Bright,. Was worth even 1i:tore than the amount of the judgment rendered against him: We cannot therefore regard the dainages as excessive, from the testirriony contained in the transcript: ' Finding ne error in the judgment of the , court the : same is , affirmed with Costa.; ■
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.