Edwards v. Wessinger

• Decision Date: 09 February 1903
• Citation: 43 S.E. 518,65 S.C. 161
• Parties: EDWARDS v. WESSINGER et al. [a1]
• Court: South Carolina Supreme Court

43 S.E. 518

65 S.C. 161

EDWARDS v. WESSINGER et al. ^[a1]

Supreme Court of South Carolina

February 9, 1903

Appeal from common pleas circuit court of Lexington county; Watts Judge.

Action by Myrtle Edwards against Vastine Wessinger and Elizabeth Wessinger. From judgment for plaintiff, defendants appeal. Affirmed.

G. T Graham and Efird & Dreher, for appellants.

E. McC. Clarkson and Andrew Crawford, for appellee.

GARY A. J.

This is an action for damages, in which the plaintiff alleges that "On or about the 2d day of September, 1900, at plaintiff's home in the county of Lexington, in the state aforesaid, the defendants, coming together and aiding and abetting each other, wrongfully and unlawfully entered upon the premises aforesaid, and upon the back piazza of the residence thereon, and then and there did beat and bruise wound, and illtreat this plaintiff, and did in a brutal manner deliberately and repeatedly strike this plaintiff over the head with a heavy stick or club, and did seize and pull her hair, and drag and pull her about and over said piazza and premises, and did repeatedly strike her with clenched fists in and upon the head, while two boys accompanying said defendants, upon their preconceived and prearranged design to commit said trespass and assault and battery, did stand at the side of said defendants with open knives in hand, and while she was being abused and vilified and denounced by said defendants; whereby the plaintiff was humiliated and degraded and imposed upon, and whereby she suffered great nervous shock, and whereby she was injured in her person and rights to her damage $10,000." The defendants answered, denying generally the allegations of the complaint, and interposing as a defense in mitigation of damages: "That on or about the 4th day of September, 1900, the plaintiff swore out a warrant before H. A. Meetze, a magistrate of said county, charging the defendants and their son Chalmers Wessinger, with an assault and battery and riot on the 2d day of September, 1900, as alleged in the said complaint, and undertook to bind over the above-named defendants; but said case having been transferred to Magistrate Corley, and a preliminary examination being had on the 22d day of September, 1900, the said magistrate, after taking the testimony of the witnesses for the prosecution in said case, did adjudge that said case was triable by a magistrate; and thereafter, on the 13th day of October, 1900, upon the trial of said case, the said magistrate did discharge and acquit the defendants of the said charge." They also alleged that at the time of the alleged assault and battery the defendant Elizabeth Wessinger was, and still is, the wife of the defendant Vastine Wessinger. The jury rendered a verdict in favor of the plaintiff for $1,500.

The appellants' first exception assigns error: "In that the presiding judge erred in the recipiency of the testimony in regard to the result of a trial of issues raised in the case in a magistrate's court on the criminal side, when objection was made to the reception of oral evidence thereof, by saying that, 'I don't think it amounts to a row of pins one way or the other, but I will let it come out;' thereby impressing upon the minds of the jury that the result of trial could have no effect in this; and the error was that he thereby gave the jury his impression of the evidence, and induced them to believe that the same was of no value and force, whereas it is respectfully submitted that the evidence was of value and force, not as a bar to this action, but in mitigation of damages." Section 7 of the Code is as follows: "Where the violation of the right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other." In the case of Wolff v. Cohen, 8 Rich. Law, 145, which was an action for assault and battery, the court, in considering an exception assigning error on the part of the circuit judge in charging the jury that they could not consider the criminal prosecution and the consequent punishment of the defendants as circumstances in mitigation of damages, thus stated the rule: "The indictment and civil action are prosecuted for the same trespass, but not by the same parties. One is an offense against society; the other is a private wrong. The state punishes for a breach of public peace. The individual recovers damages for the injury of his person; and, where the compensation is beyond the actual loss, it may operate, incidentally, as a penalty, but not as a cumulative remedy. If the punishment of the offenders should be permitted to influence the jury in their estimate of damages, the private remedy which the law gives to the injured party would be adjudged. When the prosecutor receives a part of the pecuniary penalty, it has been held that his damages should be nominal (Jacks v. Bell, 3 Carr. & Payne, 316); but in this state he is entitled to none of the penalty, and is not restrained from prosecuting both the indictment and civil action together. In Cook v. Ellis, 6 Hill (N. Y.) 466, 41 Am. Dec. 757, the court did not regard the probable or actual punishment of the defendant by indictment in an action for damages. The parties, the nature of the offense, and the remedies are different; and, where circumstances of aggravation call for vindictive and punitory damages, the range of the jury's discretion should not be narrowed by the sentence of the court." The rule prevails with even stronger force in this case, as the parties were acquitted before the magistrate.

The second exception is as follows: "(2) That the presiding judge erred in his charge to the jury: (a) In that his honor by instructing the jury, 'If you think she is entitled to damages, you can find from one cent to $10,000. That is a matter exclusively for you;' the error being that the jury was not instructed as to whether they should give actual...