Hewellette v. George

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWOODS, J.
Citation9 So. 885,68 Miss. 703
PartiesSALLIE A. HEWLETT v. W. W. GEORGE, EXECUTOR OF S. A. RAGSDALE
Decision Date18 May 1891

9 So. 885

68 Miss. 703

SALLIE A. HEWLETT
v.

W. W. GEORGE, EXECUTOR OF S. A. RAGSDALE

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, which she, being a woman, was entitled to have taken under § 1608 of the code. Under such circumstances, it cannot be said that plaintiff, by her deposition, is testifying against the estate of the deceased person. If Mrs. Ragsdale had taken her own deposition, as she had the right to do, both depositions would have been competent at the trial. Strickland v. Hudson, 55 Miss. 235.

The use of the deposition would not violate the spirit and reason of the statute. The competency of a witness is to be determined by the facts existing at the time the testimony is given. The deposition was given while the defendant was living. 2 Woerner's Am. Law of Admin. § 398; 80 N.Y. 261.

The testimony was competent when taken, and became then a part of the evidence in the case. 78 Pa. 415.

All statutes which provide for the perpetuation of evidence are in furtherance of justice and should receive a liberal construction. 81 Ib. 114.

The test of present admissibility is the competency of the testimony at the time it was given. 100 Ib. 374; 41 Ib. 119.

2. It was error to refuse plaintiff's instructions that malice and intentional wrong on the part of Mrs. Ragsdale entitled plaintiff to punitive damages. This case is governed by § 1513, code 1880, which provides that when either party to a personal action shall die before judgment, the executor shall have full power to prosecute or defend the action, and the court shall render judgment for or against the executor in the same manner as if the original party were in existence. This case is very different from what it would have been if the plaintiff had waited until after her mother's death to bring suit.

Section 2080 of the code, which prohibits the recovery of vindictive damages after the death of the wrong-doer, was not intended to apply where a suit for punitive damages was promptly...

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212 practice notes
  • Austin v. Austin, 23874
    • United States
    • Mississippi Supreme Court
    • June 16, 1924
    ...Code; Section 2052, Hemingway's Code. While we find no decision [136 Miss. 66] from this court directly in point. Hewlett v. Ragsdale, 68 Miss. 703, is strongly analogous. We now invite the attention of the court to the following authorities in support of the appellee's theory of this case:......
  • Ascuitto v. Farricielli, No. 15729
    • United States
    • Supreme Court of Connecticut
    • May 12, 1998
    ...W. Prosser, Torts (4th Ed.1971) § 3; and was first applied in the United States as a common-law principle in 1891 in Hewlett v. Ragsdale, 68 Miss. 703, [244 Conn. 697] 711, 9 So. 885 (1891), overruled in part by Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992). We first adopted the doctrine in......
  • Dubay v. Irish, No. 13239
    • United States
    • Supreme Court of Connecticut
    • May 17, 1988
    ...P.2d 1366 (Okla.1984). The first reported case to address the issue appears to be the Mississippi Supreme Court case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Hewlett v. George, supra, at 711, 9 So. 885, the parental immunity doctrine was first articulated as follows: "But so......
  • Zellmer v. Zellmer, No. 78852-9.
    • United States
    • United States State Supreme Court of Washington
    • July 24, 2008
    ...v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (stepmother inflicted cruel and inhumane treatment on stepson); Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891) (mother falsely imprisoned child in insane asylum). The parental immunity doctrine originated in three decisions near the turn ......
  • Request a trial to view additional results
212 cases
  • Austin v. Austin, 23874
    • United States
    • Mississippi Supreme Court
    • June 16, 1924
    ...Code; Section 2052, Hemingway's Code. While we find no decision [136 Miss. 66] from this court directly in point. Hewlett v. Ragsdale, 68 Miss. 703, is strongly analogous. We now invite the attention of the court to the following authorities in support of the appellee's theory of this case:......
  • Ascuitto v. Farricielli, No. 15729
    • United States
    • Supreme Court of Connecticut
    • May 12, 1998
    ...W. Prosser, Torts (4th Ed.1971) § 3; and was first applied in the United States as a common-law principle in 1891 in Hewlett v. Ragsdale, 68 Miss. 703, [244 Conn. 697] 711, 9 So. 885 (1891), overruled in part by Glaskox v. Glaskox, 614 So.2d 906 (Miss.1992). We first adopted the doctrine in......
  • Dubay v. Irish, No. 13239
    • United States
    • Supreme Court of Connecticut
    • May 17, 1988
    ...P.2d 1366 (Okla.1984). The first reported case to address the issue appears to be the Mississippi Supreme Court case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Hewlett v. George, supra, at 711, 9 So. 885, the parental immunity doctrine was first articulated as follows: "But so......
  • Zellmer v. Zellmer, No. 78852-9.
    • United States
    • United States State Supreme Court of Washington
    • July 24, 2008
    ...v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903) (stepmother inflicted cruel and inhumane treatment on stepson); Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891) (mother falsely imprisoned child in insane asylum). The parental immunity doctrine originated in three decisions near the turn ......
  • Request a trial to view additional results

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