80 Miss. 53 | Miss. | 1902
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
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
Let the judgment be affirmed.
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.