Bonnelli v. Bowen

• Decision Date: 15 October 1892
• Citation: 11 So. 791,70 Miss. 142
• Court: Mississippi Supreme Court
• Parties: EMILE BONELLI ET AL. v. G. A. BOWEN

11 So. 791

70 Miss. 142

EMILE BONELLI ET AL. v. G. A. BOWEN

Supreme Court of Mississippi

October 15, 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

Action by appellee, Mrs. G. A. Bowen, against E. Bonelli, B. C Bonelli and Frank Bonelli. The amended declaration, which contains two slightly varying counts, alleges in the first count as follows: That defendants, on September 26, 1891 with force and arms broke and entered the dwelling-house of the plaintiff in the night-time, when plaintiff had disrobed and was preparing to retire, and greatly disturbed her in the quiet possession of her dwelling-house, and forcibly, rudely angrily and in a threatening manner, against the remonstrance of plaintiff, entered her room, and, without process of law, searched her room, and seized and took violently and forcibly a certain draft given by one Jake Dornbush, on The Delta Trust and Banking Company; for $ 75, and forcibly, rudely and angrily insisted upon her indorsing the draft, and when she refused, wrote her name across the back of it, and took the same away; and then and there greatly soiled, damaged and spoiled her household goods and furniture, and upset the room and furniture, and put plaintiff in great terror and fear of her life and safety, to her great damage, $ 20,000, etc.

The second count differs from the first only in alleging that the defendants, in committing the wrongs, were intending and contriving to collect a debt due them by plaintiff's husband, and in omitting any mention of damage to house-hold goods and furniture.

The cause proceeded to trial upon defendants' plea of not guilty.

It is not deemed necessary to set out the evidence in full. That of the plaintiff supported, or tended to support, her declaration, while that of defendants contradicted her in every material matter, and was to the effect that they entered plaintiff's house through the open door with her consent, and that she delivered the draft to them in part payment of a debt due them by her husband.

Nels Anderson and John Tipton were examined as witnesses for the defendants, and their testimony was mainly corroborative of that of the defendants. Anderson was questioned, on cross-examination, as follows:

Ques. "Do you recollect having had a conversation with Mr. McLaurin here?"

Ans. "Yes, sir."

Ques. "Didn't you have a conversation with him here this morning?"

Ans. "Yes, sir."

Ques. "Didn't you state to him that you didn't know whether Mrs. Bowen signed the check or not?"

Ans. "I say that now. I don't know positive whether she signed it. No, sir; I didn't say that."

Ques. "Didn't she ask you to go right away, and stop payment of the check, saying she had been robbed?"

Ans. "No, sir."

Ques. "Didn't you state that to Mr. McLaurin in the courtroom?"

Ans. "No, sir."

Ques. "You know Mr. McLaurin?"

Ans. "Yes, sir."

Ques. "Didn't you tell him that this morning here?"

Ans. "No, sir; I never told Mr. McLaurin that she said she had been robbed."

Ques. "In that conversation with Mr. McLaurin here this morning, did you state that she came to the door crying, after the Bonellis had left, stating that she had been robbed, and asking you to have Mr. Dornbush stop payment of the check?"

Ans. "No, sir. I told her that myself."

John Tipton was asked the following questions on cross-examination:

Ques. "Do you recollect Mr. Dornbush coming down here last Monday, and having a conversation with Ben Holland, Amos Holland and yourself?"

Ans. "Yes, sir."

Ques. "Do you recollect, in that conversation there, hearing it stated, and you assented to it, that Ben Holland peeped through the crack and saw Mrs. Bowen holding on to the check, and refusing to give it up, crying and saying it was her own, and she could not part with her property that way?"

Ans. "No, sir."

This witness was also asked by Mr. W. K. McLaurin, one of the attorneys for the plaintiff, if he did not recollect when Ben Holland and himself had talked with witness about the case. To which the witness replied affirmatively, and was then asked if he did not say "it was an outrage, and Mrs. Bowen ought to get big damages for it." Witness denied having made this statement.

Thereupon, Jacob Dornbush was examined in rebuttal for plaintiff, and testified that he recollected a conversation with Ben Holland, Amos Holland and Tipton on the preceding Monday, in which Ben Holland made a statement, to which Tipton assented, the substance of which was that when the Bonellis went into Mrs. Bowen's house, they asked her for the check; that she held it in her hand by one corner, and that one of the defendants had hold of it, and wanted her to sign it; that said witness, in that conversation, stated they had seen enough to win the case; that they further stated that Mrs. Bowen was in her night-clothes, and asked the Bonellis not to come in, and that they did not see her indorse the check, but saw defendants take the check, and refuse to surrender it. A motion to exclude this testimony was overruled.

W. K. McLaurin was also examined in rebuttal, and testified, over the objections of defendants, that he had that morning had a conversation in the court-room with Anderson, who had been subpoenaed for plaintiff. McLaurin was asked to state what took place, and replied: "He [Anderson] told me when they went in that he didn't know whether Mrs. Bowen signed the check or not, and that immediately after the Bonellis left, she came to the door crying, and, saying she had been robbed, asked him to go to Mr. Dornbush and have him stop payment of the check."

Witness further testified: "I had a conversation with Tipton one day last week about this case. I was down on Washington street, where this thing occurred. Ben Holland walked up to me and mentioned the case, and, in the presence of Tipton and myself, said 'it was a damned outrage.' Tipton heard it, and assented to it, and said it was right. Ben at first told me that occurred in Tipton's presence, and he repeated what he first said, and Tipton assented to it, and said 'our testimony will win the case.'"

By the instructions given for the plaintiff, the jury was told that, if it found for the plaintiff, it could take into consideration the mental anguish and suffering of the plaintiff, if any, in estimating her compensatory damages, and, in addition, might, if it deemed proper, award vindictive or punitive damages.

The following instruction, asked by the defendants, was refused:

6. "The allegations in the declaration charge indictable felonies, and must be proven to a moral certainty, and to the exclusion of every reasonable doubt arising out of all the evidence in the case. A bare preponderance of evidence is not sufficient."

The eighth, ninth and tenth instructions for defendants, refused by the court, were to the effect that the jury could consider as a circumstance in the case the failure by the plaintiff to introduce witnesses summoned by her and present during the trial.

There was a verdict for plaintiff for $ 500, and judgment accordingly. Motion for new trial overruled, and defendants appeal.

Reversed.

Dabney & McCabe, for the appellants.

1. It is well settled that the gravamen of the suit must be proved, and that proof of the matters stated in aggravation of damages will not be sufficient. 1 Sutherland on Damages, 769. The gist of this action is clearly the forcible breaking and entering of plaintiff's dwelling. All else is matter in aggravation. We submit that the evidence fails to show any forcible entry into the house. If so, it is useless to inquire if the other matters complained of are proved.

2. The admission of the testimony of Dornbush and McLaurin to impeach Anderson and Tipton was error. The latter had not had their attention called to the time, place and precise language supposed to have been used. They had no fair opportunity to deny the conversation. The testimony of Dornbush and McLaurin does not contradict Tipton in any essential particular, but, under the guise of doing so, they give hearsay statements and conclusions. This evidence must have been controlling with the jury.

3. The court erred in refusing the eighth, ninth and tenth instructions. It was manifestly the duty of the plaintiff to put on the stand the witness subpoenaed by her and present, especially in view of her manifest desire to work in the opinions and statements of these witnesses under the guise of rebutting evidence.

4. The court erred in giving instructions permitting a recovery upon a bare preponderance of the evidence. The offenses charged in the declaration were criminal, being burglary, robbery and forgery. Defendants are entitled to the presumption of innocence. 19 Am. & Eng....