Nowell v. Henry

• Citation: 12 So.2d 540,194 Miss. 310
• Decision Date: 22 March 1943
• Docket Number: 35165.
• Court: United States State Supreme Court of Mississippi
• Parties: NOWELL et al. v. HENRY.

12 So.2d 540

194 Miss. 310

NOWELL et al. v. HENRY.

No. 35165.

Supreme Court of Mississippi

March 22, 1943

W D. Jones and John T. Smith, both of Cleveland, for appellants.

Dugas Shands and Palmer Lipscomb, both of Cleveland, for appellee.

ROBERDS Justice.

Appellee was plaintiff and appellants were defendants in the lower court. They will be so called in this opinion.

A number of errors are assigned on this appeal, but it is necessary that we pass only upon the correctness of two challenged instructions granted the plaintiff.

This action is for damages for bodily injuries and humiliation resulting, as is claimed by plaintiff, from an unjustified personal assault and battery by defendants, with hands and feet, upon the plaintiff, aggravated and accompanied by vile and insulting language toward him.

Defendants deny the use of the language but admit an assault and battery upon plaintiff by defendant, Elmer Nowell, rightfully and necessarily made, as defendants assert, to prevent an apparently dangerous attack upon Elmer Nowell by the plaintiff by the use of a chair.

There is sufficient evidence to support either the charge of plaintiff or the pleas of defendants. The jury returned a verdict for plaintiff.

The plaintiff obtained from the court the following instructions:

"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that Elmer J. Nowell and Jack Nowell hit, or choked, or kicked, or insulted, or dragged, or abused or cussed said plaintiff, without legal justification, then it is your sworn duty to return a verdict for the plaintiff in this case."

"The court instructs the jury on behalf on the plaintiff that if you believe from a preponderance the evidence in this case that the defendants herein hit or choked or kicked, or insulted, or dragged, or abused, or cussed the plaintiff, and that such was willful, or wanton, or malicious, then, in addition to assessing the actual damages suffered and sustained by the said plaintiff, you may award exemplary or punitive damages in such an amount as you may deem just and proper, and in arriving at the amount thereof you may consider the financial worth of the defendants."

Both of these instructions use the disjunctive "or". Under the first the jury could return a verdict against defendants for actual damages if it believed defendants, without legal justification, "abused or cussed" the plaintiff even though no assault or battery was committed upon him. Likewise, under the second, it could have returned a verdict for both actual and punitive damages if the jury believed the cursing or abuse was willful and malicious. Under neither was it necessary for...