31 Ind. App. 220 | Ind. Ct. App. | 1903
Appellee recovered a judgment for damages for an assault and battery.
In some of the instructions to the jury they were told that they might award punitive damages. These instructions were erroneous. It is a well settled rule that for a wrong, the commission of which subjects the wrongdoer to both a criminal prosecution and a civil action, punitive damages can not be assessed. Tabor v. Hutson, 5 Ind. 322, 61 Am. Dec. 96; Johnson v. Vuthrick, 7 Ind. 137; Struble v. Nodwift, 11 Ind. 64; Nay v. Byers, 13 Ind. 412; Butler v. Mercer, 14 Ind. 479; Nossaman v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 Ind. 190; Meyer v. Bohlfing, 44 Ind. 238; Koerner v. Oberly, 56 Ind. 284, 26 Am. Rep. 34; Stewart v. Maddox, 63 Ind. 51; State, ex rel., v. Stevens, 103 Ind. 55, 53 Am. Rep. 482; Wabash Printing, etc., Co. v. Crumrine, 123 Ind. 89; Louisville, etc., R. Co. v. Goben, 15 Ind. App. 123; Tracy v. Hacket, 19 Ind. App. 133, 65 Am. St. 398.
Appellee concedes that these instructions were erroneous, but insists that it affirmatively appears from the evidence that they were harmless. Upon a careful consideration of all the evidence we can not say, although the amount of damages awarded by the jury is not large, that it affirmatively appears that these erroneous instructions were harmless. The jury were the exclusive judges of the credibility of the witnesses and of the weight of the evidence. These erroneous instructions are presumed to have had an influence on the jury, until the contrary is shown. It is true that under §659 of the code (§670 Burns 1901) it has many times been held that where the record affirma
A new trial should have been granted. Judgment reversed.
