Jackson v. Leggett

• Decision Date: 29 May 1939
• Docket Number: 33706
• Citation: 189 So. 180,186 Miss. 123
• Court: Mississippi Supreme Court
• Parties: JACKSON v. LEGGETT

189 So. 180

186 Miss. 123

JACKSON v. LEGGETT

No. 33706

Supreme Court of Mississippi, Division A

May 29, 1939

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

Action for assault and battery by Mrs. Lillie Mae Jackson against Dr. T. Ford Leggett. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

A. S Scott, of Laurel, for appellant.

The court erred in granting materially conflicting instructions to the plaintiff and the defendant.

Instructions which, standing alone, constitute reversible error, could not be justified by reference to another instruction as laying down different rule, since inconsistency of instructions would constitute reversible error.

DeHant v. Jenkins, 190 S.E. 218, 211 N.C. 314.

We submit this instruction given the plaintiff is correct in every detail; it simply told the jury that if they believed from the preponderance of the evidence that the defendant struck the plaintiff in the mouth with his fist in anger and used certain opprobrious epithets toward her, as testified to by the plaintiff, then the jury should find for the plaintiff; or if they should believe from the preponderance of the evidence that the defendant struck the plaintiff in the mouth in anger and inflicted injury, without using towards her vile language, they should find for the plaintiff. All the vile language would do in this case would be to enhance amount of recovery; but certainly not to be grounds to find for the defendant if not proven by preponderance of the evidence.

Vest v Speakman, 44 So. 1017; 5 C. J., sec. 111; Kitteringham v. McClutchie, 41 So. 65; Barbee v. Reese, 60 Miss. 906.

It being the law that vile language is admissible in evidence to enhance the damages, it is clearly error to instruct the jury that failure to prove vile language as well as the battery by a preponderance of the evidence, and misstate the pleadings to do it, that unless so proven the jury should find for the defendant. Therefore, since the lower court granted the plaintiff an instruction telling the jury that they could return a verdict for the plaintiff if they believe there was a battery, without any vile language being used, still they should find for the plaintiff and then the court turned right around and granted a directly conflicting instruction on this question to the defendant, and even went so far as to misstate the pleadings too. Who can say that these two conflicting instructions did not mislead the jury? It does not have to appear beyond a doubt that the jury was misled; especially where the evidence is seriously conflicting. If there is a reasonable chance that such conflicting instructions might have misled or confused the jury, as to the true issue in the case and the actual burden resting upon the plaintiff in the premises, then under our adjudicated cases, the cause must be reversed and remanded.

Parfitt v. Sterling Veneer Co., 69 S.E. 985, 68 W.Va. 438; King v. King, 134 So. 830.

The instruction granted the defendant herein complained about not only stated a palpably unsound and erroneous instruction as to the law in the case, but also misstated the pleadings too.

64 C. J., sec. 611; Ewton v. McCracken, 64 So. 177; Luderbach Plumbing Co. v. Stein, 74 So. 327, 113 Miss. 475; McDonough Motor Express v. Spiers, 176 So. 723; T. & K. W. Ry. v. Galvin, 11 So. 231; 22 So. 658.

Where an instruction is illegal, and not simply misleading, no subsequent explanation or qualification made by the court can cure the defect.

Schieffelin v. Schieffelin, 28 So. 687; May v. Culpepper, 172 So. 336.

We submit, even in cases where instructions are sound as to one theory, where it excludes another on which recovery might be based, are erroneous.

64 C. J. 808; Columbus v. Anglin, 48 S.E. 318, 120 Ga. 785; Ludwig v. Petrie, 70 N.E. 280, 32 Ind.App. 550; 137 So. 439; 114 So. 41; 107 So. 821.

We insist with all earnestness, that instruction which purport to cover the whole case, or which direct a verdict upon the finding of certain facts, must not ignore any theory of recovery or defense.

Smith & Son v. Gay, 106 So. 214; Mooney v. City of Chicago, 88 N.E. 194; Burrough v. Grantile Co., 59 A. 285; Caven v. South Colonization, 173 N.E. 716; Thames v. Batson Lbr. Co., 108 So. 181; 70 So. 700, 110 Miss. 586; 73 So. 621, 112 Miss. 632.

We submit in all seriousness that the instruction granted defendant, herein complained about, not only misstated the pleadings, and prejudiced and confused the minds of the jury but also placed too great a burden upon the plaintiff and was in direct conflict with plaintiff's instruction.

Welch & Cooper and B. F. Carter, all of Laurel, for appellee.

The appellee requested and was given the following instruction: "The court instructs the jury for the defendant that the plaintiff has charged in the declaration that the defendant struck her in the mouth with his fist and said to her 'You God-damn bitch, you are fired.' The burden of proving this by a preponderance of the evidence rests upon the plaintiff. And unless so proven, it is your sworn duty to find for the defendant." Appellant now complains that the giving of this instruction was reversible error. She urges that this instruction is in conflict with others granted appellant.

It is first said that this instruction was error because it states that the "plaintiff charged in the declaration that the defendant struck her in the mouth with his fist and said to her 'You God-damn bitch, you are fired.'"

It is true that appellant did not state in the declaration the words "You God-damn bitch, you are fired." But she did charge therein that Dr. Leggett just outside the door of his office in the hallway and in the presence of other persons did "commit an actionable trespass upon plaintiff's person by then and there . . . strike plaintiff with his fist a violent blow right in plaintiff's mouth . . . and accompanying said wilful and wanton conduct with vile and opprobrious epithets at and towards plaintiff."

The declaration does not state what the vile and opprobrious epithets are but Mrs. Jackson swears that he said: "You God-damn bitch, you are fired."

Manifestly, when she charged in her declaration that vile and opporbrious epithets were used toward her and then swore as to what the epithets were, this is tantamount to a charge in the declaration the language of the epithets as given on the witness stand by the plaintiff. One charges that another insulted him. This is his pleading. Upon the witness stand he says that the insult was that he was called a thief. Certainly there is a charge that he was called a thief.

So it is submitted that the mere statement that there was a charge in the declaration that he said "You, God-damn bitch, you are fired" is not even technically erroneous when the plaintiff in the declaration charges that a vile epithet was applied to her and then testifies in support thereof just what the vile epithet was. But even if technically erroneous, the fact that it was charged that the words were set out in the declaration does not make the error such as would cause this court to reverse the case.

The only issue to be decided was whether appellee cursed and struck appellant or not. The instruction criticized was a statement of the jury's duty if it found that she was not. Appellant submitted the same proposition in every instruction requested except one. And in that one instruction, the appellant for the first and only time from the filing of the declaration through the testimony and the other instructions evidenced any idea that there was a blow and no curses.

And yet there is nothing in the record from which the jury could reach the conclusion that she was struck and not cursed. Of all her witnesses she knew most. Yet, she, the appellant herself, says that she was both cursed and struck.

So, we respectfully submit that the instructions are not conflicting. But if mistaken in that, the instructions granted appellee correctly state the very issue made by the appellant herself. It is taken from her testimony and upon her testimony alone the success or failure of her case depended. She combined the curses and blow in her declaration and she did so in her testimony. The instructions, therefore, if erroneous, were harmless in their operation.

Argued orally by A. S. Scott for appellant, and by Ellis B. Cooper, for appellee.

OPINION

McGowen, J.

The appellant, who was employed by the appellee, Leggett, a dentist, sued him for damages, alleging that while she was in his office he wilfully and unlawfully struck a violent blow on her mouth with his fist, loosening her teeth, cutting both upper and lower lips; and accompanied said wilful and wanton conduct with vile and opprobrious epithets.

Appellant testified on the trial that on the day of the assault and battery, about 2:30 in the afternoon, she left the office of Dr. Leggett to go to the rest room; that she met Mr. Frank Folmar and Miss Geneva Grafton at the head of the stairway and talked...