Wagner v. Gibbs

Mayes,* Special J., delivered tbe opinion of tbe court. Tbe appellant assigns for error the giving of the first instruction for plaintiff, which, in brief, informed the jury that they might, if they saw proper, award punitory damages. The first point made is that punitory damages cannot be allowed in civil cases for assault and battery, because the gravamen of the suit is what is also a criminal offense, and that the criminal punishment exhausts the liability to punishment as such. Several cases are cited in support of this proposition, but we prefer the other view. This court has previously held punitory damages to be recoverable in such suits. We do not, however, adhere to that view because of the doctrine of stare decisis,, but because we see no good reason for departing from it, and it is in accord with the great weight of authority. It is so held in Arkansas, California, Delaware, Florida, Illinois, Iowa, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, New York, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Vermont, Virginia, West Virginia, and Wisconsin. It is also urged by the appellant that there is no evidence in this case to justify the infliction of punitory damages. It does appear that, after the assault was committed, appellant appeared before a magistrate and pleaded guilty to the offense, under an affidavit which charged that the assault and battery were committed “willfully, maliciously, and unlawfully.” Appellant contends, however, that the conviction is only evidence • of the conviction itself, and not of the substantive offense charged. The authorities cited by his counsel, and the reasoning in support of their contention, do not apply where the party has pleaded “guilty.” Such plea is an admission by him [62] of a solemn character. Because of the want of mutuality, he is not estopped thereby, but it is competent evidence against him. It may not be evidence of each fact alleged in the indictment or affidavit — mere allegations of surplusage — but it is evidence of each and every element needed to constitute the offense admitted as a crime. In assault and battery it admits the malice, because malice is implied by law in such case. Albrecht v. State, 62 Miss., 516; Jamison v. Moseley, 69 Miss., 478, 485 (10 So., 582). He may, because he is not estopped, defend by showing circumstances of excuse or justification, but in the case at bar no such effort was made. The case went to the jury on an assault and battery confessed, and no circumstances of excuse were even claimed to exist; and we hold that, in such state of the action, it was competent for the jury to award punitory damages. Nor does this holding conflict with Jamison v. Moseley, 69 Miss., 478 (10 So., 582), as claimed by counsel. In that case the plaintiff made out a prima facie case by proving an admission of the offense; then closed, relying on the presumption of malice; and, after the defendant had undertaken to make out his justification, plaintiff introduced, under a claim of rebuttal, the eye witness to the conflict, whom he should have introduced in chief. There was full proof of all the incidents of the conflict. Under the special tactics pursued at the trial, and because all the facts of the shooting were “fully disclosed,” this court held that there was no’ room for any.presumption. The case at bar does not occupy that attitude. There was no evidence from either side as to the circumstances of the battery, and the person assaulted was dead. It is claimed further that the death of the party assailed terminates the right to recover punitory damages from the assailant. We do not accede to that view. It is true that § 1917 of the code (1892) provides that, where a trespasser shall have died, punitory damages may not be recovered from his estate; and in Hewlett v. George, 68 Miss., 703 (9 So., 885; 13 L. R. A., 682), this statute was applied; the court saying that pun [63] ishment did not follow him into the grave. But neither that statute nor that decision has any application here. In this case § 1916, code 1892, controls. That section authorizes the personal representatives to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. ' It has relation to the right of a deceased plaintiff. The very fact that in § 1917 the legislature prohibited a recovery of punitory damages from the estate of a deceased trespasser, and no such provision appears in § 1916 as to the case of a deceased plaintiff, shows that the legislature intended 'a difference; the subject-matter being clearly before the legislative mind. Moreover, the reason for the difference is perfectly manifest. Punitory damages are inflicted for the purpose of deterring a culprit in the future, and the imposition of them for such purpose is impossible in the case of a person deceased. But where the trespasser is still alive, as in the case at bar, there is no reason whatever why he should be exonerated because of the death of the one upon whom he has committed a trespass; for the punishment is imposed not to deter him from repeating his trespass as against the particular party assailed or injured, but to secure his general good behavior. We have held above that this case is a proper one for the imposition of punitory damages. Wo are not prepared to say that, considering the evidence adduced in regard to the financial condition of the defendant, and the fact that his assault, unexcused, was committed upon a minister of the gospel, the amount awarded was excessive. Let the judgment be affirmed. Footnotes [*] Judge Calhoon having been counseled with in the case before his appointment to the bench, recused himself, and took no part in the decision. Edward Mayes, Esq., was bv agreement of parties selected to act as special judge.