Opinion
December 31, 1948.
1. Pleading — count in tort and count in contract, improper in same declaration.
It is improper to embrace in the same declaration a count in tort and another count in contract.
2. Damages — mental suffering, damages for, when recoverable.
When no malice or wantonness is shown and no physical injury, damages for mental suffering may not be recovered.
3. False imprisonment — absence of malice or wantonness.
Where plaintiff has been arrested and imprisoned for two hours as a result of a criminal charge made by the defendant, which charge was dismissed without a trial and with the knowledge or consent of the prosecutrix, and there was proof of probable cause, although disputed, and no malice or wantonness on the part of the defendant is shown, damages are not recoverable against the defendant, on account such prosecution.
4. Contract — damages for breach of contract — mental suffering — absence of wilful or malicious motive.
An instruction which allows a jury to award damages for humiliation and mental suffering for cutting off lights, in breach of contract to furnish such lights, is erroneous in the absence of any proof of physical injury, and when there was no sufficient proof of a wilful or malicious motive.
5. Punitive damages — instruction which would allow without proof to support it.
An instruction capable of the construction, under the confused issues of the trial, that under it the jury could allow punitive damages is erroneous when there is no evidence which would justify punitive damages.
6. Instruction — must not be on weight of the evidence.
An instruction on the weight of the evidence is erroneous and should not be given.
7. Punitive damages — instruction that none allowable, when proper.
When there is nothing on the evidence which justifies the infliction of punitive damages, the court should grant requested instruction that no such damages are recoverable.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, J.
W.A. Geisenberger, for appellant.
The court erred in giving the instructions requested by the plaintiff. This is particularly true as to Instruction No. 1 which is in the following language: "Gentlemen of the jury: You are instructed in this case that if you find and believe from the evidence that the lights in the Moore trailer were cut off by defendant and did not go off on account of a defective cord and defendant had no just cause to believe that shorts, if any, were caused by defective cord, then you will find for plaintiff on the first count of the declaration in such sum as you may find will reasonably compensate plaintiff for his damages, if any, for his humiliation, mortification and mental anguish, if you find he suffered such humiliation, mortification, and mental anguish."
This instruction, because of the language which we have emphasized, is fatally defective for the reason that the record is barren of any evidence whatsoever showing that the plaintiff suffered humiliation, mortification or mental anguish through the cutting off of the lights by the defendant, and there being no such proof, it is not proper for the court to allow the jury to speculate upon such damages. The plaintiff having introduced no evidence whatsoever to establish those elements of damage is not entitled to have a case made out for him by the court's instruction.
Furthermore the mental anguish which plaintiff claims to have suffered is not shown to have been caused by any physical injury to plaintiff but is claimed, though not supported by any proof, as damages flowing solely from the cutting off of the electric lights by the defendant and implied from the bare proof that the lights were cut off. In the case of Doherty v. Miss. Power Co., 178 Miss. 204, 173 So. 287, recovery for mental suffering or subsequent physical injury and pain resulting therefrom was denied plaintiff, who sought to recover such damages for the wrongful cutting off of electric current by the defendant.
The Doherty case was cited in Gulf, Mobile and N.R.R. Co. v. Thornberry, 185 Miss. 576, 188 So. 545. While we are not unmindful of the fact that in the Doherty case the court stated that there is authority for the view that under some circumstances damages are recoverable for mental anguish where there is no supporting physical injury and quotes Section 312, Restatement of the Law of Torts, volume 2, our court did not approve the rule nor line itself up with the authority cited nor have we found a Mississippi case upholding an award of damages for mental suffering unconnected with physical injury.
The court erred in giving plaintiff's Instruction #2, which is as follows: "Gentlemen of the jury: If you find from the evidence that defendant caused the arrest and incarceration in jail of plaintiff without probable or just cause, you will find for plaintiff in such sum as you may further find will reasonably and fairly compensate him for such arrest and incarceration and the ensuing damages, if any, he may have suffered. In this connection you are further instructed that false arrest or malicious prosecution, imports injury and consequent damages without proof of injury or damage, but the amount of such damages, if any, must be determined by you from the evidence."
The vice in this instruction exists in that part thereof which tells the jury that false arrest for malicious prosecution imports injury and consequent damages without proof of damage. The true rule, in a proper case, is that proof of false arrest or malicious prosecution raises the right to recover at least nominal damages, but even to that extent, we contend that the rule does not apply in this case, under the rule laid down in Taylor v. Illinois Central R.R. Co., 27 So.2d 894, and other cases holding that the prima facie statute (Section 1741, Mississippi Code of 1942) does not apply when all of the facts surrounding the accident are shown. Analogously when all of the facts surrounding an alleged false arrest or malicious prosecution, including the character and extent of damages claimed to have been suffered, are in evidence, the presumption of damages disappears from the case and the jury must determine their existence, nonexistence, or amount from the evidence before them uninfluenced by any presumption which might serve solely to bolster an award which the jury might not otherwise have made.
The court erred in giving plaintiff's Instruction No. 3, which is as follows: "Gentlemen of the jury: You are instructed that ill health on the part of one guilty of falsely or maliciously causing the arrest of another is no excuse in law for such action and if you believe that defendant caused the arrest and incarceration of plaintiff without just cause you will find for plaintiff in such sum as you may believe will reasonably and fairly compensate him for his damage, if any."
This instruction is fatally erroneous as being on the weight of evidence. When it is considered that the lower court denied the request of the defendant that the jury be instructed that they could not allow punitive damages and when the size of the verdict so clearly indicates that it is composed almost altogether of punitive damages, this instruction was very damaging to the defendant. In considering damages which are in their nature punitive embodying punishment of him or her against whom they are awarded, the jury should be in all fairness permitted to consider every fact and circumstance which in their nature bear upon the conduct of the defendant.
The court erred in permitting the jury to consider and allow punitive damages. Manifestly almost the entire amount of the jury's verdict is made up of punitive damages, for there is no showing whatsoever of any actual damages suffered by the plaintiff other than his being detained for about two hours in the city jail. He was not shown to have suffered any abuse, mistreatment, or indignity. He declared for no pecuniary loss of time and proved none. He was not entitled to recover damages for apprehension or mental anguish on account of his child, when the lights were turned out. Obviously then his actual damages are but a very meager portion of the shocking $1500.00 verdict returned by the jury. While, as stated in 17 C.J., page 993, section 293, there is no fixed standard by which punitive damages may be measured and the amount of an award of such damages rests largely within the discretion of the jury, though such discretion is not an arbitrary one and must be so exercised as not to indicate passion or prejudice, yet it is further the rule that the award should not be disproportionate to the actual damage sustained, 17 C.J., section 293, page 995. In the case at bar, the damages awarded are totally, flagrantly disproportionate to the actual damages sustained.
Punitive damages, being from their nature highly penal, carry greater need for carefully considered instructions, stating clearly the conditions upon which they may be allowed, than do instructions relating to actual or compensatory damages, and no jury should be intrusted with their award without such an instruction. E.H. Ratcliff, for appellee.
Replying to the first objection to plaintiff's Instruction No. 1, to the effect that there is no evidence of any humiliation, mortification, etc., suffered by the plaintiff on account of cutting off his light: It is the settled rule in this State any many other jurisdictions that the infringement of a legal right forms the basis for a presumption of damage. Doherty v. Miss. Power Co., 178 Miss. 204, 173 So. 287, C.J.S., Vol. 25, page 465, Sec. 6; R.C.L., Vol. 8, page 654, Sec. 195.
In the case at bar, the evidence is replete with proof of malice, wilfulness and wantonness on the part of defendant in disconnecting the lights of plaintiff when plaintiff owed no bill to defendant. It is true that Moore, the plaintiff, did not say in so many words that he had been humiliated or mortified as a result of the conduct of defendant, but the whole implication of his testimony was to that effect. Clearly there was an invasion of plaintiff's rights, from which invasion damages followed as a matter of course. Of course, the amount of such damage, whether actual or merely nominal, was not susceptible of proof. Having shown an infringement of a right, the amount of damages following therefrom was a matter in the sound discretion of the jury.
No instruction was requested by defendant defining actual and nominal damages and so far as the verdict shows, the jury might have found that there was actual damage to the extent of $1500.00.
Replying to the second of these contentions, it is urged by appellee that such injury to the feelings of appellee can be the legitimate basis for damages if the act proximately causing such injury was wilful, wanton or attended by malice, insult of oppression. Darrah v. Illinois Central R.R. Co., 65 Miss. 14; Western Union Tel. Co. v. Rogers, 68 Miss. 748. (See especially Page 756 where Judge Cooper distinguishes the three classes of exceptions to the general rule.)
The instructions requested by defendant and given her by the court, tell the jury as plainly as language can make it that they could not find for plaintiff unless they believed defendant acted maliciously or in bad faith, in cutting off the lights, at least as to the first count of the declaration. In other words, defendant must have been guilty of a wilful or wanton wrong. If the jury believed defendant was so guilty, then, according to the authorities cited, such conduct could properly form the basis for damages without any accompanying physical injury or pain.
In the face of these instructions, the jury found for plaintiff. How could they have done this unless they believed defendant to have been guilty of a wilful wrong? Of course, all the instructions must be taken together and if when so taken they fairly present the case to the jury, no reversible error is present. C R Stores v. Scarborough, 196 So. 650, 189 Miss. 872; Metropolitan Life Co. v. Moss, 192 So. 343; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 808.
This is not a case of conflicting instructions. The instructions given defendant merely supplement or amplify the plaintiff's instructions relative to the first count of the declaration. See Instruction No. 1 for plaintiff.
Reply to the objection of appellant to the Second Instruction for plaintiff as set forth on page 15 of appellant's brief: It is said by appellant that the vice in this instruction exists in that part of same wherein the court tells the jury that false arrest or malicious prosecution imports injury and consequent damage without proof of injury or damage.
In State Life Insurance Company of Indianapolis v. Hendy, 195 So. 708, it is said: "Without proof of special damages, a plaintiff in a malicious prosecution case may recover damages for (a) the harm to his reputation which normally results from such an accusation as that brought against him, and (b) the distress which normally results from the initiation of such proceedings." Drakos v. Jones (Okla.), 118 P.2d 388; Dorr Cattle Co. v. Bank (Iowa), 98 N.W. 918; Amer. Juris., Vol. 54, p. 792, Sec. 154.
The instruction complained of does not tell the jury to find any damages of any kind, nominal or actual. It does no more than say that malicious prosecution, that is prosecution without probable cause, imports damage but the amount of such damage, if any, must be decided by the jury from the evidence. This instruction is a fair presentation of the case to the jury and especially when read in connection with defendant's instruction relating to this count of the declaration. See especially defendant's instruction at the bottom of page 111 of the Record. Y. M.V.R.R. Co. v. Williams, 87 Miss. 344; Hattiesburg v. Beverly, 123 Miss. 759.
Reply to appellant's objections to award of punitive damages, page 17 of appellant's brief: Appellant asserts that "manifestly almost the entire amount of the jury's verdict is made up of punitive damages." The record and the verdict fail to sustain that dogmatic statement. There is no award of punitive damages in the jury's verdict and so far as is disclosed by such verdict, the entire award might have been and well could have been for compensatory or actual damages. The jury was not even told they might award punitive damages and while under our decisions, notably Railroad Co. v. Moore, 101 Miss. 768, it was probably not necessary to so instruct the jury, nevertheless the failure of the court to so instruct it was a clear indication to the jury that the jury could find only actual or compensatory damages. Evidently that is what the jury intended by their verdict.
The jury in this case found by its verdict for plaintiff that defendant instituted a criminal prosecution against Moore without just or reasonable cause and that she had no reasonable grounds to believe him guilty of the charges against him and in fact, did not believe it. See defendant's instruction, Page 110 Record.
Under these circumstances, the jury could and doubtless did infer malice. Hatch Whitfield v. Bluford Westbrook, 40 Miss. 311. Corpus Juris, Sec. Vol. 57, page 1099.
In the face of the instruction referred to, the jury found for plaintiff. Having found that defendant did not even believe Moore to be guilty, would not malice necessarily follow as a matter of law?
Appellee recovered a judgment against appellant in the Circuit Court of Adams County, the declaration sounding in damages. (Hn 1) It was in two counts, one for breach of contract, and one for tort. On this improper declaration, the jury awarded appellee the sum of $1,500 damages. It is impossible to tell whether this award was for breach of contract, or for the alleged tortious act, and whether for actual or punitive damages.
Appellant conducted a parking lot, where appellee, with his wife and young child, lived in a trailer. For this service, and certain electrical facilities, he contracted to pay so much per week in advance. During the middle of one week, for which appellee had paid in advance, he alleged that appellant cut his lights off without cause. The gravamen of his claim for damages was the breach of contract, aggravated because his child was sick and had to be attended in the middle of the night by a physician, without electric lights. But, the physician testified that he had a large flashlight, carried for use in such situations, and he was not handicapped in any way by the absence of electric lights in the trailer. The child was up and playing in the yard the next day. The appellant contends that she offered to return the unpaid portion of his weekly rental and requested him to leave because of certain alleged misconduct of his young child. There was controversy over whether appellee pulled out the plug to stop the light or whether its stoppage was due to a short circuit caused by a defective cord attached to appellee's trailer, said cord being furnished by appellee.
(Hn 2) There was no malice, or wantonness, or physical suffering proven in this connection by the appellee. If he were entitled to any damages, it would be only actual damages, and none was shown by the evidence. In the case of Doherty v. Mississippi Power Company, 178 Miss. 204, 205, 173 So. 287, 289, this Court said: "There was testimony tending to show that as a result of the controversy, and the disconnecting of appellant's lights, she was caused to suffer mental worry and emotional disturbance, which subsequently caused her to suffer illness and physical pain, for all of which, it is contended, she is entitled to recover actual damages. It is the established rule in this State that there can be no recovery for mental pain and suffering, disconnected from physical injury and suffering." The record fails to disclose any justifiable damages on the count for breach of contract, as stated.
(Hn 3) Under the other count of the declaration, appellee sought damages from appellant because he alleged she had maliciously, wantonly and falsely caused him to be arrested and incarcerated in jail for an offense of which he was not guilty, to-wit: cursing and using profanity toward her. There was testimony on both sides as to whether or not he actually did so demean himself. He spent about two hours in jail before making bond, and on the date set for his trial appellant was sick in bed and could not attend. The justice of the peace continued the case without notifying appellant of the date to which it was continued. When that date arrived, appellant was still sick in bed and could not attend, and the justice of the peace dismissed the prosecution. There was no trial and exoneration of appellee, and appellant was not a party to the dismissal of the prosecution. From the evidence in this case, we cannot see any sufficient proof of malice or wantonness on the part of the appellant with reference to this prosecution.
The court below granted this instruction: "You are instructed in this case that if you find and believe from the evidence that the lights in the Moore trailer were cut off by Defendant and did not go off on account of a defective cord and Defendant had no just cause to believe that shorts, if any, were caused by defective cord, then you will find for Plaintiff on the first count of the declaration in such sum as you may find will reasonably compensate Plaintiff for his damages, if any, for his humiliation, mortification and mental anguish, if you find he suffered such humiliation, mortification and mental anguish."
(Hn 4) We feel that comment is unnecessary to point out the errors in the granting of this instruction further than to call attention to the fact that there is no evidence in the record showing appellee suffered any humiliation, mortification and mental anguish through the alleged cutting off of his lights. Furthermore, he neither alleged nor proved any physical suffering, and no wilful or malicious motive. We are of the opinion that no damages were shown, by the record before us, to have been sustained by appellee because of the alleged breach of contract.
The court also granted the following instruction to appellee: "If you find from the evidence that Defendant caused the arrest and incarceration in jail of Plaintiff without probable or just cause, you will find for Plaintiff in such sum as you may further find will reasonably and fairly compensate him for such arrest and incarceration and the ensuing damages, if any, he may have suffered. In this connection you are further instructed that false arrest or malicious prosecution, imports injury and consequent damages without proof of injury or damage, but the amount of such damages, if any, must be determined by you from the evidence."
(Hn 5) We are of the opinion that such instruction should not have been granted because of the absence of proof to sustain punitive damages in this case. It may be that appellee was entitled to nominal damages, as to which we express no conclusion; but we find no justification for the infliction of punitive damages on the record before us.
The court also granted the appellee the following instruction: "You are instructed that ill health on the part of one guilty of falsely or maliciously causing the arrest of another is no excuse in law for such action and if you believe that Defendant caused the arrest and incarceration of Plaintiff without just cause you will find for Plaintiff in such sum as you may believe will reasonably and fairly compensate him for his damage, if any."
(Hn 6) This instruction is bad because it is on the weight of the evidence.
In view of what we have already said with reference to punitive damages, supra, (Hn 7) we think the court should have granted to the appellant, as defendant below, the following instruction refused by the Court: "The Court instructs the jury for the Defendant that the Plaintiff is not entitled to recover anything by way of punitive damages."
We have concluded that the judgment of the trial court must be reversed and the cause remanded for a new trial, and it is so ordered.
Reversed and remanded.