Bounds v. Watts

• Decision Date: 12 January 1931
• Docket Number: 28976
• Citation: 159 Miss. 307,131 So. 804
• Court: Mississippi Supreme Court
• Parties: BOUNDS et al. v. WATTS

131 So. 804

159 Miss. 307

BOUNDS et al. v. WATTS

No. 28976

Supreme Court of Mississippi

January 12, 1931

Division B

APPEAL from circuit court of Pearl River county, HON. J. Q LANGSTON, Judge.

Suit by Tom Watts, usee, etc., against John Bounds and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

J. C Shivers, of Poplarville, and Grayson B. Keaton, of Picayune, for appellant.

An instruction given plaintiff in a suit for assault by police in making arrest, telling the jury that malice need not amount to ill-will, hatred or vindictiveness, but that malice necessary to be shown in order to entitle plaintiff to recover punitive damages was established by showing that the defendant used more force than was necessary to arrest the plaintiff at the time and on the occasion of such arrest was erroneous. The use of more force than was necessary unaccompanied by any evidence of ill-will, hatred or vindictiveness did not entitle plaintiff to punitive damages.

A peace officer or other person duly empowered is not liable for injuries inflicted by him in the use of reasonably necessary force to preserve the peace and maintain order or to overcome resistance to his authority. Thus an officer making arrest is justified in using sufficient force to subdue the prisoner, although not in self defense.

5 C. J., page 639, section 37.

When both actual and punitive damages are sought it is error to give an instruction telling the jury that if they should find a verdict for the plaintiff, they had a right to assess plaintiff's damages at such sum as the jury saw fit. Damages must be confined to such as plaintiff would be entitled to under the facts and circumstances of the case, and under the law.

J. E. Stockstill and M. L. Alexander, both of Picayune, for appellees.

Assault and battery admits malice, because malice is implied by law.

Wagner v. Gibbs, 31 So. 434; Gamblo v. Schmuck, 31 So. 604.

Whether or not it is essential to prove actual malice in order to sustain an award of punitive damages in an action for assault and battery, it is the rule that where an assault is committed in a wanton, reckless and malicious manner the jury may award exemplary damages to such extent as the circumstances of the act may seem to justify.

2 R. C. L., page 583, par. 6; Lochte v. Mitchell, 26 So. 877.

The phrase of the instruction that invited the jury to assess damages in such sum as they saw fit, is the right of the jury under the law, and if such language in an instruction was too broad, it was cured in numbers of other instructions, including three given to the appellants.

Argued orally by J. C. Shivers and G. B. Keaton, for appellant, and by J. E. Stockstill, for appellee.

OPINION

Griffith, J.

Appellant, John Bounds, was a police officer in the city of Picayune, and having received information that appellee Watts was drunk and was using profanity in a public place, the officer proceeded to the place and found appellee then and there presently drunk, whereupon the officer arrested appellee, and appellee having made violent resistance, it became necessary, in order to effectuate the arrest, for the officer to strike appellee several times with a policeman's club. The foregoing is the statement, in brief, of the officer, and is the theory supported by the testimony adduced in his behalf. On the other hand, appellee denies that he was drunk or that he was using profanity, or that he made any resistance to the arrest; and contends that the arrest, being without warrant, was in the first place unlawful, and in the second place, the use of the club by the officer when no resistance was being made was a wanton assault and battery without excuse, for which punitive as well as compensatory damages were sought.

There was a sharp conflict in the testimony on all issues, so that the case became one in which particular care was necessary in the matter of instructions to the jury. There is an irreconcilable conflict between several of the instructions granted for the plaintiff and those given for the defendant, as to which we say only that those tendered and used by defendant were correct both in theory of law and in accuracy of expression. Beyond this general observation we think it...