9 So. 885 (Miss. 1891), Hewellette v. George

Citation:9 So. 885, 68 Miss. 703
Opinion Judge:WOODS, J.
Attorney:Witherspoon & Witherspoon, for appellant. Walker & Hall, for appellee.
Case Date:May 18, 1891
Court:Supreme Court of Mississippi

Page 885

9 So. 885 (Miss. 1891)

68 Miss. 703




Supreme Court of Mississippi

May 18, 1891

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL, Judge.

The appellant, Sallie A. Hewlett, a minor, brought this action by her next friend, in 1887, against her mother, Sarah A. Ragsdale, to recover $ 10,000 for having wilfully, illegally, and maliciously caused her to be imprisoned for ten days in the East Mississippi insane asylum. The declaration alleges that said incarceration was procured by defendant deceitfully and in pursuance of a plot to deprive plaintiff of her liberty, in order to get control and possession of certain of her property and valuable papers pertaining to certain litigation.

The defendant, Sarah A. Ragsdale, was personally summoned and filed her plea of general issue at the July term, 1887. She also gave notice under the general issue, that she would show that her daughter, the plaintiff, prior to said imprisonment, was an inmate of a house of ill-fame in the city of Chicago; that defendant caused her to return to Meridian, in said county, and gave her a home in her own house; that plaintiff was given to loose and unchaste habits, and that defendant, to save her and the family from disgrace, and to have her treated for a certain disease, procured her to be confined in the asylum; that two reputable physicians had certified to plaintiff's insanity, and that she was in fact insane; that while proceedings to have plaintiff declared a lunatic had been instituted and dismissed, this was because of a promise of reformation by her; and that, after her release from the asylum, she again became and remains an inmate of a house of prostitution.

In May, 1888, the deposition of plaintiff was taken after due notice to the defendant. After the taking of the deposition and before the trial, the defendant, Sarah A. Ragsdale, died, and her executor, W. W. George, intervened by leave of court to defend the suit. Meantime the plaintiff, having become of age, was substituted in lieu of her next friend as plaintiff, and the cause thereafter proceeded in her own name and right against the executor of her mother.

On the trial defendant moved the court to suppress the deposition of plaintiff, upon the ground that plaintiff, by such deposition, was seeking by her own testimony to establish her claim against the estate of a deceased person, in violation of § 1602, code 1880. The motion was sustained.

The case was tried in January, 1891, and resulted in a verdict in favor of plaintiff for $ 5000, which, upon motion of counsel for the executor, was set aside, because, as alleged in briefs of counsel, the court was of the opinion that plaintiff could not recover punitive damages, and that no actual damages had been proved, except $ 200 paid by plaintiff to procure her release from the asylum. On the second trial plaintiff recovered only $ 200. A motion for new trial by plaintiff was overruled, and she prosecutes this appeal.

Section 2080, code 1880, which is one of the statutes referred to in the opinion of the court, provides that when any testator or intestate shall in his lifetime have committed any trespass to the person or property of another, his executor or administrator shall be liable to the same action by such other as is allowed against the testator or intestate; provided, that vindictive damages shall not be awarded; and provided further, that such action is commenced within one year after publication of notice to creditors.

Reversed and remanded.

Witherspoon & Witherspoon, for appellant.

1. It was error to exclude plaintiff's deposition. At the time it was taken, May 31, 1888, Mrs. Ragsdale was living. She was notified of the taking of the deposition, and her counsel were present. She afterwards had more than six months in which to take her own deposition...

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