Wagner v. Gibbs

• Decision Date: 10 March 1902
• Citation: 80 Miss. 53,31 So. 434
• Court: Mississippi Supreme Court
• Parties: DANIEL R. WAGNER v. CARLOTTA H. GIBBS, ADMINISTRATRIX

31 So. 434

80 Miss. 53

DANIEL R. WAGNER v. CARLOTTA H. GIBBS, ADMINISTRATRIX

Supreme Court of Mississippi

March 10, 1902

FROM the circuit court of, second district, Yalobusha county. HON PERRIN H. LOWREY, Judge.

Mrs Gibbs, administratrix, appellee, was the plaintiff in the court below; Wagner, appellant, was defendant there. The plaintiff recovered in her civil action for an assault and battery, committed by defendant on her intestate, a judgment for $ 2,000, from which defendant appealed to the supreme court. The evidence showed defendant to be worth about $ 200,000. The facts are otherwise sufficiently stated in the opinion of the court.

Judgment affirmed.

James Stone, I. T. Blount and Earl Brewer, for appellant.

Punitive or exemplary damages can never be recovered in a case where the wrong complained of is an indictable offense. It is true that this court has in several instances held punitive damages recoverable in assault and battery cases; but a careful examination of the cases will show that the exact point was not raised in them, except perhaps in the case of Bell v. Morrison, 27 Miss. 68. The first case on the subject is that of State v. Blennerhassetts, Walker, 7. In that case the defense was made that a public prosecution could not be maintained because the prosecutor was also carrying on a civil action for damages, and it was contended that the civil action should be dispensed with before the injured party was entitled to prosecute criminally. The court held that both proceedings might be carried on at the same time, basing its decision on the ground that criminal prosecution is to the interest of the public, and its purpose is to give force to the law by showing the public that it cannot be violated with impunity; to reclaim the offender if possible by the salutary restraint of punishment, and to secure and protect all citizens in their enjoyment of rights by deterring the wicked through fear of punishment from the perpetration of similar offenses. The court added: "Nor can we refuse the injured individual the remedy for the damages which he has sustained." This case is in no sense an authority against our contention. It really seems to be in our favor, for it supports the idea for which we contend that punishment is provided for by the state, and is to be imposed by it, and that compensation, not punishment is for the wrong and injury done to the individual. The next case, Bell v. Morrison, 27 Miss. 68, is one in which a majority of the court held that exemplary damages were recoverable in a civil action for assault and battery, but the question we present seems not to have been called to the attention of the court, and the decision, claimed to be adverse to us, is merely incidentally so, if it be adverse at all. The next case is Eltringham v. Earhart, 67 Miss. 488, and this case turned almost wholly on the question whether evidence of the pecuniary condition of the plaintiff was admissible, and this was certainly correct, because his sufferings from the assault and battery were increased because of the kicks and bruises administered to him by the defendant. The only other case decided by this court claimed to be adverse to us is Lochte v. Mitchell, 28 So 877, but it is impossible to ascertain from the report of this case whether the question now before the court was made. In Wheatley v. Thorn, 23 Miss. 62, this court held that a criminal action for assault and battery, and a civil action therefor, are entirely distinct and separate, using this language: "The office of prosecution is to satisfy public justice, while that of a civil action is to compensate the injured party." Many of the authorities cited against us are, when examined, not in point. This is practically true of those cited. 2 Am. & Eng. Enc. Law (2d ed.), 989. In support of our contention we cite the following authorities: Huber v. Teuber, 36 Am. Rep., 110; Fay v. Parker, 16 Am. Rep., 270; Boyer v. Barr, 30 Am. Rep., 814; Cherry v. McCall, 23 Ga. 193; Albretch v. Walker, 73 Ill. 69; Austin v. Wilson, 50 Am. Dec., 766; Stuyvesant v. Wilcox, 31 Am. St. Rep., 580; and Greenleaf on Evidence, sec. 252; Ib., 266; Ib., 267.

The record of the conviction of Wagner for the assault and battery on Gibbs was not sufficient to entitle the plaintiff to recover, and there is no other testimony showing that plaintiff had committed the same. Jamerson v. Moseley, 69 Miss. 478. The record of the conviction could only prove that Wagner was convicted. It did not prove anything else.

The death of Gibbs put an end to the right to recover exemplary damages, if it ever existed. The verdict in this case is grossly excessive. The testimony as to the condition of Gibbs after the altercation with Wagner shows that he was very slightly hurt, if hurt at all.

McWillie & Thompson, on same side.

We confine our observations to a single point. Whether punitive damages are legally recoverable in any civil action is questioned by the highest authority, 2 Greenleaf on Evi., p. 235 et seq.; but whatever may be thought on that subject, the best reasoned cases deny a recovery where the tort is one for which the offender may be prosecuted criminally. The states whose supreme courts have passed on this question are divided, but it seems to be confessed that the weight of argument is in favor of the decisions denying a recovery; those to the contrary, finding no substantial foundation in sound legal principles, rest upon precedents growing out of confused ideas of the law and judicial misuse of its terms.

The opinion of Judge Helm in the case of Murphy v. Hobbs (Colo.), 49 Am. Rep., 366, contains an argument in support of our position, which in our judgment is unanswerable, and we adopt the same as a part of this brief. As he shows, the supreme courts of New Hampshire, Massachusetts, Indiana, Iowa, Nebraska, Michigan, and Georgia have rejected the doctrine that punitive damages are recoverable in such cases, and that in Wisconsin, while the doctrine was adhered to, the court did so because it was "inherited," expressing at the time the view that it was "a sin against sound judicial principle." To the above list of states repudiating the doctrine might have been added Colorado and the District of Columbia. See, Murphy v. Hobbs (Colo.), supra; Taber v. Hutson (Ind.), 61 Am. Dec., 96; Wabash Printing Co. v. Crumrine, 123 Ind. 89; Austin v. Wilson (Mass.), 4 Cush., 273; Fay v. Parker, 16 Am. Rep., 270, S. C., 53 N.H. 342; Boyer v. Barr, 8 Neb., 68, S. C., 30 Am. Rep., 814; Huber v. Teuber, 3 McArthurs, 484, S. C., 36 Am. Rep., 110; Brown v. Swineford, 44 Wis. 282.

Shands, Somerville & Shands, J. G. McGowen and Hamner & West, for appellee.

The proposition most strenuously urged is that punitory damages should not be awarded in an action for civil redress where the conduct of the defendant constitutes an indictable offense under the criminal law, and especially where, as in the case at bar, the penalty for the crime had been imposed. It was insisted that to permit the recovery of exemplary damages in such a case would be to justify a second punishment for the one offense.

In Wheatley v. Thorn, 23 Miss, 62, where the defendant offered to prove that he had been indicted and fined for the conduct complained of, Mr. Justice Clayton, speaking for the court, said: "An indictment is intended to satisfy public justice, and does not impair or effect the rights of the injured party to compensation for the wrong inflicted upon him."

In Eltringham v. Earhart, 67 Miss. 488, the court uses this language: "In actions of this kind, where insult and mortification bear so large a proportion to the injury inflicted, juries are not restrained to actual pecuniary damages."

In the case last cited, this court approves an instruction to the effect that evidence of conviction in a criminal proceeding growing out of the facts there involved did not preclude the suit for damages. The recent case of Lochte v. Mitchell, 28 So. 877, sets the question at rest by approving an instruction authorizing the jury to assess punitory damages if they found that the defendant had "willfully, wantonly and without provocation" assaulted and beaten the plaintiff.

To allow such damages where the conduct is indictable, is to leave the defendant exposed to the penalty of the criminal code. The principle is the same. The authority last cited must control the case at bar. The policy of the courts of Mississippi is attested by numerous cases involving torts of various types. The distinction contended for is not recognized, but denied. The higher courts are not ready to admit that a nominal fine imposed by a justice of the peace is a bar to exemplary damages in a suit for civil redress.

The question is not an open one in this state, and the holding of our courts is in line with the great weight of authority in America. We refer to the following cases and textbooks: Headley v. Watson, 45 Vt. 289; 12 Am. Rep., 197; Cook v. Ellis, 6 Hill, 757; Merrills v. Tariff M'f'g Co., 27 Am. Dec., note on page 687, and cases there collated; 2 Sedgwick on the Measure of Damages (7th ed.), and 12 Am. & Eng. Enc. Law (2d ed.), 8.

In support of the admission of evidence of the appellant's financial condition, we cite the following familiar authorities: Bell v. Morrison, 27 Miss. 68; Railroad Co. v. Hurst, 36 Miss. 660; Eltringham v. Earhart, 67 Miss. 488; 1 Jones Law of Evidence, sec. 160.

The effort to limit the transcript of defendant's conviction to proof of the assault and battery, shorn of the features of malice and willfulness, embraced in the transcript is without foundation.

"A record of conviction in a criminal case upon a plea of guilty is admissible in a civil action involving the same subject matter, not as a conclusive...