In Jackson v. Leggett, 186 Miss. 123, 189 So. 180, 182, the Court said: (Hn 3) "The two instructions herein set out are in hopeless conflict and cannot be reconciled.Summary of this case from Lipnick v. New York Life Ins. Co.
May 29, 1939.
1. ASSAULT AND BATTERY.
Where declaration contained only one count and allegation that, at time defendant struck plaintiff, defendant applied to plaintiff vile and opprobrious epithets could only have been alleged as in aggravation of the offense of assault and battery, plaintiff might recover for assault and battery even though no opprobrious epithets were used.
2. ASSAULT AND BATTERY.
In action for assault and battery, where allegation that, at time defendant struck plaintiff, defendant applied to plaintiff vile and opprobrious epithets was made as in aggravation of offense of assault and battery and its wilfullness, instruction requiring plaintiff to prove by preponderance of evidence that defendant struck her and also that he used the vile epithets was erroneous.
In action for assault and battery, that plaintiff secured an instruction with a statement of facts, including both cursing and assault and battery, did not cure error in defendant's instruction requiring proof of both assault and battery and use of opprobrious epithets.
4. APPEAL AND ERROR. Trial.
In action for assault and battery where court gave defendant's instruction requiring plaintiff to prove both assault and battery and defendant's use of opprobrious epithets and also gave plaintiff's instruction entitling her to recover for assault and battery, even though no opprobrious epithets were used, the instructions were conflicting and judgment was required to be reversed because defendant's instruction did not correctly state law.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, J.
A.S. Scott, of Laurel, for appellant.
The court erred in granting materially conflicting instructions to the plaintiff and the defendant.
Instructions which, standing alone, constitute reversible error, could not be justified by reference to another instruction as laying down different rule, since inconsistency of instructions would constitute reversible error.
We submit this instruction given the plaintiff is correct in every detail; it simply told the jury that if they believed from the preponderance of the evidence that the defendant struck the plaintiff in the mouth with his fist in anger and used certain opprobrious epithets toward her, as testified to by the plaintiff, then the jury should find for the plaintiff; or if they should believe from the preponderance of the evidence that the defendant struck the plaintiff in the mouth in anger and inflicted injury, without using towards her vile language, they should find for the plaintiff. All the vile language would do in this case would be to enhance amount of recovery; but certainly not to be grounds to find for the defendant if not proven by preponderance of the evidence.
Vest v. Speakman, 44 So. 1017; 5 C.J., sec. 111; Kitteringham v. McClutchie, 41 So. 65; Barbee v. Reese, 60 Miss. 906.
It being the law that vile language is admissible in evidence to enhance the damages, it is clearly error to instruct the jury that failure to prove vile language as well as the battery by a preponderance of the evidence, and misstate the pleadings to do it, that unless so proven the jury should find for the defendant. Therefore, since the lower court granted the plaintiff an instruction telling the jury that they could return a verdict for the plaintiff if they believe there was a battery, without any vile language being used, still they should find for the plaintiff and then the court turned right around and granted a directly conflicting instruction on this question to the defendant, and even went so far as to misstate the pleadings too. Who can say that these two conflicting instructions did not mislead the jury? It does not have to appear beyond a doubt that the jury was misled; especially where the evidence is seriously conflicting. If there is a reasonable chance that such conflicting instructions might have misled or confused the jury, as to the true issue in the case and the actual burden resting upon the plaintiff in the premises, then under our adjudicated cases, the cause must be reversed and remanded.
Parfitt v. Sterling Veneer Co., 69 S.E. 985, 68 W. Va. 438; King v. King, 134 So. 830.
The instruction granted the defendant herein complained about not only stated a palpably unsound and erroneous instruction as to the law in the case, but also misstated the pleadings too.
64 C.J., sec. 611; Ewton v. McCracken, 64 So. 177; Luderbach Plumbing Co. v. Stein, 74 So. 327, 113 Miss. 475; McDonough Motor Express v. Spiers, 176 So. 723; T. K.W. Ry. v. Galvin, 11 So. 231; 22 So. 658.
Where an instruction is illegal, and not simply misleading, no subsequent explanation or qualification made by the court can cure the defect.
Schieffelin v. Schieffelin, 28 So. 687; May v. Culpepper, 172 So. 336.
We submit, even in cases where instructions are sound as to one theory, where it excludes another on which recovery might be based, are erroneous.
We insist with all earnestness, that instruction which purport to cover the whole case, or which direct a verdict upon the finding of certain facts, must not ignore any theory of recovery or defense.
Smith Son v. Gay, 106 So. 214; Mooney v. City of Chicago, 88 N.E. 194; Burrough v. Grantile Co., 59 A. 285; Caven v. South Colonization, 173 N.E. 716; Thames v. Batson Lbr. Co., 108 So. 181; 70 So. 700, 110 Miss. 586; 73 So. 621, 112 Miss. 632.
We submit in all seriousness that the instruction granted defendant, herein complained about, not only misstated the pleadings, and prejudiced and confused the minds of the jury but also placed too great a burden upon the plaintiff and was in direct conflict with plaintiff's instruction.
Welch Cooper and B.F. Carter, all of Laurel, for appellee.
The appellee requested and was given the following instruction: "The court instructs the jury for the defendant that the plaintiff has charged in the declaration that the defendant struck her in the mouth with his fist and said to her `You God-damn bitch, you are fired.' The burden of proving this by a preponderance of the evidence rests upon the plaintiff. And unless so proven, it is your sworn duty to find for the defendant." Appellant now complains that the giving of this instruction was reversible error. She urges that this instruction is in conflict with others granted appellant.
It is first said that this instruction was error because it states that the "plaintiff charged in the declaration that the defendant struck her in the mouth with his fist and said to her `You God-damn bitch, you are fired.'"
It is true that appellant did not state in the declaration the words "You God-damn bitch, you are fired." But she did charge therein that Dr. Leggett just outside the door of his office in the hallway and in the presence of other persons did "commit an actionable trespass upon plaintiff's person by then and there . . . strike plaintiff with his fist a violent blow right in plaintiff's mouth . . . and accompanying said wilful and wanton conduct with vile and opprobrious epithets at and towards plaintiff."
The declaration does not state what the vile and opprobrious epithets are but Mrs. Jackson swears that he said: "You God-damn bitch, you are fired."
Manifestly, when she charged in her declaration that vile and opporbrious epithets were used toward her and then swore as to what the epithets were, this is tantamount to a charge in the declaration the language of the epithets as given on the witness stand by the plaintiff. One charges that another insulted him. This is his pleading. Upon the witness stand he says that the insult was that he was called a thief. Certainly there is a charge that he was called a thief.
So it is submitted that the mere statement that there was a charge in the declaration that he said "You, God-damn bitch, you are fired" is not even technically erroneous when the plaintiff in the declaration charges that a vile epithet was applied to her and then testifies in support thereof just what the vile epithet was. But even if technically erroneous, the fact that it was charged that the words were set out in the declaration does not make the error such as would cause this court to reverse the case.
The only issue to be decided was whether appellee cursed and struck appellant or not. The instruction criticized was a statement of the jury's duty if it found that she was not. Appellant submitted the same proposition in every instruction requested except one. And in that one instruction, the appellant for the first and only time from the filing of the declaration through the testimony and the other instructions evidenced any idea that there was a blow and no curses.
And yet there is nothing in the record from which the jury could reach the conclusion that she was struck and not cursed. Of all her witnesses she knew most. Yet, she, the appellant herself, says that she was both cursed and struck.
So, we respectfully submit that the instructions are not conflicting. But if mistaken in that, the instructions granted appellee correctly state the very issue made by the appellant herself. It is taken from her testimony and upon her testimony alone the success or failure of her case depended. She combined the curses and blow in her declaration and she did so in her testimony. The instructions, therefore, if erroneous, were harmless in their operation.
Argued orally by A.S. Scott for appellant, and by Ellis B. Cooper, for appellee.
The appellant, who was employed by the appellee, Leggett, a dentist, sued him for damages, alleging that while she was in his office he wilfully and unlawfully struck a violent blow on her mouth with his fist, loosening her teeth, cutting both upper and lower lips; and accompanied said wilful and wanton conduct with vile and opprobrious epithets.
Appellant testified on the trial that on the day of the assault and battery, about 2:30 in the afternoon, she left the office of Dr. Leggett to go to the rest room; that she met Mr. Frank Folmar and Miss Geneva Grafton at the head of the stairway and talked to them. When Miss Grafton left, she continued to converse with Mr. Folmar, and when she heard her employer call her, she went to the screen door opening into the reception room, and there he said to her in a loud angry tone of voice, "Who the hell are you working for?" She opened the screen door to enter and get her purse when he said, "In the meantime, God damn you, you are fired," and further said, "Get out, you bitch," and said again, "God damn you." Dr. Leggett then doubled his right fist and hit her very hard in the mouth, knocking her against the wall. Her lower and upper lips were cut, and one tooth knocked completely through her lower lip. When she regained consciousness, about thirty minutes later, she was in the rest room, and remained there until about 4:15 P.M. when she heard her mother and sister-in-law in the reception room of Dr. Leggett, and she called to them and exhibited her swollen and bleeding lips. In this, she was corroborated by the mother and sister-in-law. Later, that day, she visited Dr. Ramsey, who, on examination, verified the fact that she had received a blow on the lips, though he did not consider the injury serious. Within a few days, Dr. Copeland treated her lips and prescribed for her. He found some of her teeth loose.
Mr. Folmar testified that he heard oaths uttered by a male voice when he was going down the steps of the stairway. No other witness corroborated her as to the assault and battery.
Dr. Leggett denied using any profane, vile, or impolite language, and denied that he struck the appellant. He was corroborated by Mr. and Mrs. Welborn, and other occupants of the building testified that they did not hear anything unusual that afternoon.
The court granted the following instructions to the appellee:
"The court instructs the jury for the defendant that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the defendant, Dr. Leggett, struck the plaintiff in the mouth and used toward her language of an insulting nature. And unless so proven, it is your sworn duty to find for the defendant."
"The court instructs the jury for the defendant that the plaintiff has charged in the declaration that the defendant struck her in the mouth with his fist and said to her `You God-damn bitch, you are fired.' The burden of proving this by a preponderance of the evidence rests upon the plaintiff. And unless so proven, it is your sworn duty to find for the defendant."
It is contended by appellant that these instructions are fatally erroneous, and induced the verdict of the jury.
It is argued mainly by the appellant that by these instructions the jury was advised that it must find, by a preponderance of the evidence, that appellee not only struck her, but that it must also find that he said to her, "You God damn bitch, you are fired."
It is further argued that these instructions are in direct conflict with an instruction granted by the court to appellant in these words: "The Court instructs the jury for the plaintiff that if you believe by a preponderance of the evidence in this case that defendant in anger and wilfulness called plaintiff to the door and asked her `Who in the hell are you working for — you are fired' and she started into the office to get her purse, and defendant struck her in the mouth with his fist, inflicting injury upon her and said `Get out, you ____ bitch' or words to this effect, then you must find for plaintiff; or if you believe from a preponderance of the evidence that defendant struck her in anger and inflicted injury upon her without vile language, then you must find for plaintiff."
By the latter instruction, the jury was told that if it found by a preponderance of the evidence that defendant struck her and did not use the vile language attributed to him, the jury should return a verdict for the plaintiff.
We think these instructions for appellant correctly announce the law. The declaration counted on an assault and battery. The allegation that, at the time Dr. Leggett struck her, he applied to her vile and opprobrious epithets could only have been alleged as in aggravation of the offense of assault and battery, and its wilfullness. The declaration was only on one count. There was no effort to allege liability because of common law slander, or under our actionable words statute.
Appellee argues that the insulting words and the assult and battery were rendered inseparable by the allegations of the declaration, and all of the evidence in her behalf. This argument is not logical, for the jury might well have believed that appellee struck her but did not apply the epithets. Five witnesses testified that they saw her bruised lips on the afternoon of the occurrence. There was but little, if any, corroboration of the opprobrious epithets claimed to have been uttered.
Neither can we say that because the appellant secured other instructions with a statement of facts, including both cursing and assault and battery, thereby the error in appellee's instruction here complained of is cured. Other instructions of the appellant do not conflict with the instructions given by the court in her behalf to the effect that she might recover for an assault and battery even though no opprobrious epithets were used.
The two instructions herein set out are in hopeless conflict and cannot be reconciled. This record discloses no cure for the error. The case is reversed because these instructions did not state the law of the case. See Herndon v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 10 So. 446, 12 So. 339; Illinois Cent. R.R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Mahaffey Company v. Russell Butler, 100 Miss. 122, 54 So. 807, 945; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Alabama V.R. Co. v. Cox, 106 Miss. 33, 63 So. 334; Columbus G.R. Co. v. Phillips, 160 Miss. 390, 133 So. 123; King v. King, 161 Miss. 51, 134 So. 827; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Kansas City M. B.R.R. Company v. Lilly, Miss., 8 So. 644, and Hines v. Lockhart, Miss. 105 So. 449. The instruction for the appellant correctly stated the law, while those complained of given for the appellee did not. There was a "head-on" collision between the two instructions.
We find no other reversible error in this record.
Reversed and remanded.