Interstate Co. v. Jolly

• Citation: 156 Miss. 199,125 So. 406
• Decision Date: 06 January 1930
• Docket Number: 28290
• Court: United States State Supreme Court of Mississippi
• Parties: INTERSTATE CO. et al. v. JOLLY

125 So. 406

156 Miss. 199

INTERSTATE CO. et al. v. JOLLY

No. 28290

Supreme Court of Mississippi

January 6, 1930

Division B

Suggestion of Error Overruled Feb. 3, 1930.--125 So. 838.

EVIDENCE. Supreme court will not take judicial notice of facts shown in another case.

Supreme court will not take judicial notice of facts shown in another case and thereby treat them as facts in case under consideration, though it will take judicial notice of former decisions and facts on which they were based in order to determine whether principles of law therein declared were applicable to case in hand.

APPEAL from circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by Zelma Jolly, a minor, by her next friend, E. P. Smith against the Interstate Company and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition of entering a remittitur, otherwise reversed and remanded.

Judgment affirmed. Suggestion of error overruled.

Boothe & Pepper and Ruff & Johnson, all of Lexington, May, Sanders, McLaurin & Byrd, of Jackson, and Grant I. Rosenzweig, of Kansas City, Mo., for appellants.

Punitive damages, under the law, are not given to the party injured as a matter of right; such damages are not awarded for the benefit of the particular party injured because of an absolute right in him thereto, but upon the principal that they may have a deterrent effect and protect the public against the repetition of similar offenses. Punitive damages are punishing damages, and are awarded to the injured party as a reward for his public service in bringing the wrongdoer to account.

Neal v. Newburger, 123 So. 863.

To allow the recovery of successive punishing damages for the one wrong act would be to permit the doing by individuals in civil actions what the state, in its sovereign capacity, will not, and under the Constitution cannot do; that is, inflict punishment twice for the same offense.

P. P. Lindholm, of Lexington, and Holmes, & Holmes, of Yazoo City, for appellees.

The doctrine of "once in jeopardy" has no application to the fact that exemplary damages have been recovered by one person for a wrongful act, is no bar to a recovery of such damages by another in an action growing out of the same wrong.

Reutkemeir v. Nolte, 179 Iowa 342, 161 N.W. 290, L.R.A. 1917D 273; Hauser v. Griffith, 102 Ia. 315, 71 N.W. 223; Ward v. Ward, 41 Ia. 686; Luther v. Shaw, 157 Wis. 234, 52 L.R.A. (N.S.) 85, 147 N.W. 18; Riddle v. McGinnis, 22 W.Va. 253; Ingerson v. Miller, 47 Barb. 47; Hein v. Holdridge, 78 Minn. 468, 81 N.W. 522; Morgan v. Rose, 74 Mo. 318; Kerns v. Hagenbuchle (Sup. Ct.), 28 Jones & S. 228, 17 N.Y.S. 369; Stowers v. Singer, 113 Ky. 584, 68 S.W. 637; Ingersoll v. Jones, 5 Barb. 661; Lavery v. Crooke, 52 Wis. 612, 38 Am. Rep. 768, 9 N.W. 599; Klingman v. Holmes, 54 Mo. 304; Wagner v. Gibbs, 80 Miss. 53, 31 So. 434.

If the recovery of Lelia Garnett of punitive damages could be considered in bar or mitigation of the recovery of punitive damages by the appellee, Zelma Jolly, then it would have been necessary to introduce on the trial of the cause evidence of such recovery by Lelia Garnett, so that the same might be considered by the jury in mitigation of the punitive damages to be awarded to Zelma Jolly. No such evidence was introduced on the trial of the case, and no such evidence is made a part of the record in this case.

Anderson, J. Griffith, J.

OPINION

Anderson, J.

The appellee, Zelma Jolly, a minor, by her next friend, E. P. Smith, brought this action in the circuit court of Holmes county against the appellants, the Interstate Company, a foreign corporation, and Romeo Favretto, a resident of said county, for slander, and recovered a judgment in the sum of twenty-five thousand dollars, the amount sued for. From that judgment, appellants prosecute this appeal.

The facts in this case are, in all respects, substantially the same as were the facts in the case of Interstate Co. et al. v. Garnett, 154 Miss. 325, 122 So. 373, there being two opinions, one delivered by the court on the first hearing, and the other on suggestion of error.

The grounds relied on for reversal of the judgment in the present case, with one exception, which will be later considered, were the same grounds relied on for reversal of the judgment in the Garnett case. With much force and show of reason the appellants attack the decision in the Garnett case as unsound, and ask the court to overrule it.

After carefully and diligently reconsidering every question decided in that case, we are unwilling to overrule it. We are unable to see that the case lays down principles which will be mischievous and harmful.

The question raised in this case by the appellants which was not involved in the Garnett case is this: Whether, where one plaintiff has recovered punitive damages against a defendant for a tort, another plaintiff injured by the same tort will be permitted to recover punitive damages against the same defendant. The appellants contend he will not, and this contention arises out of the assumption, by the appellants, that the appellants in the present case are identical with the appellants in the Garnett case; that the Zelma Jolly referred to in the evidence in the Garnett case is the same person as the appellee in this case; that the Lelia Garnett referred to in this case is the same person as the Lelia Garnett in that case, and other facts, shown by the evidence in the Garnett case, including the recovery of, and payment by, the appellants of a judgment in the sum of fifteen thousand dollars, largely for punitive damages. The appellants base this contention on the principles declared in the case of Neal v. Newburger (Miss.), 154 Miss. 691, 123 So. 861, and the cases cited in the opinion in that case; that punitive damages are not an award for the benefit of a particular party injured as a matter of right, but upon the principle that such damages may have a deterrent effect and protect the public against a repetition of similar torts; that punitive damages are punishing damages, and are awarded to an injured party as a reward for his public service in bringing the wrongdoer to an accounting. Invoking these principles, the appellants argue that they were punished in the Garnett case in the sum of fifteen thousand dollars for the same wrongful act of which the appellee in this case complains, and which was the basis of the appellee's recovery of punitive damages. Appellants say, therefore, if the judgment in this case is permitted to stand, the appellants will be subjected to double punishment for the same tort.

We do not decide this question, because, on the record in this case, it is not presented for decision; the necessary facts above set out, assumed by the appellants to exist, not being in the record. Nor will the court take judicial notice of the facts shown in the Garnett case, and by that means treat them as facts in this case. Ill. Cent. R. Co. v. Walker, 116 Miss. 431, 77 So. 191. It is true that, in deciding a present case, the supreme court will take judicial notice of its former decisions and the facts upon which they were based in order to determine whether the principles of law therein declared are applicable to the case in hand, but it will not take judicial notice of facts upon which its former decisions were based to the extent of recognizing them as facts in the case under consideration.

In this case, as in the Garnett case, the trial court overruled a motion for a new trial on the ground that the verdict was excessive. In the Garnett case the judgment was reduced from twenty-five thousand dollars to fifteen thousand dollars. We...