Hewellette v. George

Decision Date18 May 1891
Citation9 So. 885,68 Miss. 703
CourtMississippi Supreme Court

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 brought against the trespasser in his lifetime.

3. The court erred in refusing to instruct that mental suffering, shame and humiliation, and injury to reputation are not proper elements of compensatory damages. 3 Lawson's Rights & Rem. §§ 1104, 1218, 1302, 1970; 61 Mich. 445; 39 Kan. 93.

4. The court erred in setting aside the first verdict of $ 5000. It was fully warranted by the evidence.

Walker & Hall, for appellee.

1. The deposition of plaintiff was properly suppressed under § 1602 of the code. Jacks v. Bridewell, 51 Miss. 881; Wood v. Stafford, 50 Ib. 370; Rushing v. Rushing, 52 Ib. 329; Buie v. Buie, 67 Ib. 456.

It may be true that if Mrs. Ragsdale's deposition had been taken and used, that of plaintiff would have been competent, but that is not a material inquiry, as Mrs. Ragsdale's deposition was not taken. The authorities of other states cited in support of the admissibility, find no support in the decisions of this state. While the defendant, Mrs. Ragsdale, could have procured her own deposition to be taken, it was still the right of plaintiff to compel her personal attendance in court. If such attendance had been required, clearly her testimony would have been inadmissible.

2. The first verdict was plainly contrary to the instructions in that it allowed punitive damages. Such damages are not recoverable in this case. Code 1880, § 2080; 1 Sutherland on Dam. 158; 5 Am. & Eng. Ency. of Law, 42.

The sum paid to procure her release is the limit of plaintiff's actual damages.

3. We submit that the evidence shows that the relation of parent and child with its mutual rights, duties and responsibilities existed at the time of appellant's confinement in the asylum. If so, public policy will deny her any action against her mother for a personal injury. 7 Am. & Eng. Ency. of Law, 665.



The deposition of plaintiff, taken in a pending suit in a court of law, during the lifetime of defendant's testatrix, on the final trial of this cause, and after the death of the original defendant, and the revivor against the executor of the deceased was offered in evidence on behalf of plaintiff, and, on motion of defendant, was excluded by the trial court, and this action of the court is assigned for error.

Relying upon the proposition that the competency of a witness is determinable by the facts existing at the time the testimony of such witness is given, counsel for appellant, with much vigor and ingenuity, contended that the appellant's deposition was competent evidence, even under our statute which forbids any person testifying as a witness to establish his claim against the estate of a deceased person, which originated during the lifetime of such deceased person. Reported cases from New York, Pennsylvania and Maryland are cited and relied upon by counsel as directly supporting this contention. If these decisions had been made in cases similar to the one at bar, and upon statutes identical with ours, we should feel constrained,...

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