Indianapolis Bleaching Co. v. McMillan

• Decision Date: 25 October 1916
• Docket Number: No. 9138.,9138.
• Citation: 113 N.E. 1019,64 Ind.App. 268
• Parties: INDIANAPOLIS BLEACHING CO. v. McMILLAN.
• Court: Indiana Appellate Court

64 Ind.App. 268

113 N.E. 1019

INDIANAPOLIS BLEACHING CO.

v.McMILLAN.

No. 9138.

Appellate Court of Indiana, Division No. 1.

Oct. 25, 1916.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by John Harvey McMillan against the Indianapolis Bleaching Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. Henry W. Bullock, of Indianapolis, for appellee.

FELT, J.

This is an action for damages for an assault and battery, alleged to have been committed on appellee by the servants and employés of appellant. The issues were formed by a complaint, a general denial, and a special paragraph of answer, to which a reply of general denial was filed. The jury returned a verdict for $300. Appellant's motion for a new trial was overruled, and judgment was rendered on the verdict. Appellant has assigned as error the overruling of its motion for a new trial.

[1][2] The substance of the complaint is that appellant is a corporation operating a plant for the production of cotton goods; that appellee and his wife were both employés of appellant, and worked in its factory and plant; that L. F. Hilton and George Jones, respectively, held the positions of overseer and second overseer of said plant, and on November 8, 1913, appellee went to said factory for the lawful purpose of collecting wages due his wife from appellant, and while there in the discharge of such duty was assaulted by said Hilton and Jones, who were then and there acting for and on behalf of appellant and exercising authority and control over appellant's plant and acting within the scope of their authority; that without cause or provocation they beat, bruised, and wrongfully ejected appellee from appellant's plant; that by reason of said assault upon him he suffered, and still suffers, great bodily pain, and has suffered great humiliation, loss of employment and income, and has been caused to expend a large sum of money for medical treatment, all to his damage in the sum of $20,000. Appellant contends that the court erred in giving to the jury certain instructions and in refusing to give certain instructions tendered by appellant. The principal controverted question presented by the instructions given and refused relates to the right of appellee to recover punitive damages. The instructions presented by appellant and refused informed the jury that in case they found for appellee he could only recover actual damages, and that they should not allow anything for punitive or exemplary damages. The court correctly instructed the jury on the subject of actual damages, and then said:

“If you should be of the opinion that the injuries which plaintiff received, if any, were inflicted in a spirit of wanton malice and with intent to injure plaintiff, then you would have a right to add a further sum by way of punishment of the defendant.”

Appellant contends that Hilton and Jones who committed the assault and battery, if any was committed, are subject to punishment for the offense under the criminal laws of the state; that if any damages are recovered in this suit appellant has a right of action against Hilton and Jones to recover from them the amount it may be compelled to pay on that account; that punitive damages cannot be assessed against appellant, because the law does not warrant their assessment against Hilton and Jones. Furthermore, it is contended that neither the complaint nor the evidence is sufficient to authorize the assessment of punitive damages in this case, for the reason that malice is not alleged or proven. The general proposition is well established in Indiana that for wrongs, the commission of which subjects the wrongdoer to both a criminal prosecution and a civil action, exemplary damages cannot be assessed. Wabash Printing Co. v. Crumrine, 123 Ind. 89-93, 21 N. E. 904;Stewart v. Maddox, 63 Ind. 51-55;Borkenstein v. Schrack, 31 Ind. App. 220-221, 67 N. E. 547. The distinction which appellant seeks to make, by which appellee would be denied the right to claim exemplary damages against appellant notwithstanding the latter is not subject to criminal prosecution for the alleged assault and battery, has not been recognized in Indiana, and the decisions of this court and of our Supreme Court cannot be brought into harmony with such distinction. In B. & O. S. W. R. R. Co. v. Davis, 44 Ind. App. 375, 89 N. E. 403, this court considered a case involving damages in a suit against the railroad company for an assault and battery committed by its conductor upon a passenger. The conductor was clearly liable criminally for the assault...