Lizana v. State

• Citation: 109 Miss. 464,69 So. 292
• Decision Date: 05 July 1915
• Docket Number: 16904
• Court: United States State Supreme Court of Mississippi
• Parties: LIZANA ET AL. v. STATE, TO USE OF KELLY

69 So. 292

109 Miss. 464

LIZANA ET AL. v. STATE, TO USE OF KELLY

No. 16904

Supreme Court of Mississippi

July 5, 1915

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by the state of Mississippi to the use of Wm. Kelly, against F P. Lizana and others. From a judgment for plaintiff defendant Lizana appeals.

William Kelly owed Igansus Fava a grocery bill, the balance of which after certain credits, was past due, Fava, hearing that Kelly intended leaving the city, turned the account over to Justice of the Peace F. P. Lizana for collection by civil process on a fifty per cent. contingent basis. Lizana advised Fava that the debt could only be collected by "scaring it out of him" by making a criminal affidavit against the debtor, but Fava claims not to have agreed to this. Shortly afterwards Lizana presented to Fava an affidavit against Kelly for obtaining goods under false pretenses, which Fava signed, claiming on the hearing that he did not know it was of a criminal nature. On this affidavit Kelly was arrested and tried before Justice of the Peace Lizana, where it seems Kelly was not allowed to testify, was roughly abused, and finally convicted and fined twenty-five dollars, together with a thirty-day sentence in jail. Not being able to pay the debt to meet a compromise proposition submitted by Lizana after the conviction, Kelly was confined in jail some two days until bond was arranged.

On the above facts Lizana and the sureties on his official bond as justice of the peace were sued by Kelly, who obtained judgment for six hundred and fifty dollars, from which defendant prosecutes this appeal.

Case reversed and remanded.

Mize & Mize, for appellant.

On the last page of their brief, counsel say: "It so happens that the appellant had a former experience of a similar nature to the one under consideration. He has been before this court in a cause identical with the one at bar in the cause of Lizana et al. v. The City of Pass Christian for the use of Mrs. Kelly, 509 So. 814." The following instruction was given by the lower court in that cause for the plaintiff:

"'The court instructs the jury for the plaintiff that if they believe from the evidence that the arrest of plaintiff was unlawful and oppressively made, as plaintiff has alleged and set forth in her declaration, then she is entitled to recover all actual damages sustained by her, including physical pain and suffering, and such other exemplary damages as the jury may think proper, not to exceed the sum of two thousand dollars.'

"This suit was against Lizana and his bondsmen and the giving of this instruction was specifically assigned as error. The case was affirmed without an opinion." Lizana et al. v City of Pass Christian, 59 So. 814.

"The instruction in the case now at bar was drawn by the attorneys from the record in the case cited supra. The case of Lizana et al. v. City of Pass Christian had just been affirmed by this court, and the instruction now before the court was drawn in reliance upon the decision of this court in that cause. It will be necessary for the court to overrule that case before this cause can be reversed."

It is true that the instruction above quoted by counsel for appellee is the same as the instruction complained of in the instant case, but in said case of Lizana v. The City of Pass Christian, 59, So. 814, the point was not raised that the sureties were not liable for exemplary damages. The complaint as to said instruction, as will be seen by reference to the record in 59 So. 814, was as to its not being couched in the proper language, and no complaint whatever was made as to the exemplary damage feature, and the case was decided without an opinion, and hence is not binding on this court. 11 Cc. 745, lays down the following sensible rule in cases of this kind: "And an opinion is not authority for what is not mentioned therein, and what does not appear to have been suggested to the court from which the opinion emanates."

This case falls precisely within the rule announced in Cyc. supra.

The Lizana case alluded to by counsel was affirmed without an opinion, and hence is not authority for anything except that case, and nowhere in that case was any complaint raised to the instruction quoted as to the bondsmen not being liable for punitive damages. Hence, said case under the rule laid down in Cyc. supra, is not authority here.

We submit that a clear principle of law was announced by said instruction that is not applicable to this case; and, since the evidence for the appellee in the instant case is that Lizana was a very bad man and oppressive, the jury evidently took appellee's view of the evidence or it would not have awarded a verdict for appellee; and, by accepting appellee's evidence as to Lizana's conduct, the jury evidently gave punitive damages, because, if they found a verdict for the appellee, they were bound to believe Lizana was an oppressive man and hence they allowed punitive damages under the instruction we complain of, which the law does not permit. In this jurisdiction, where punitive damages and actual damages are not separated in the verdict, the court cannot tell how much punitive damages was allowed and how much actual damages, and hence the court cannot say that the jury...