Interstate Co. v. Jolly , 156 Miss. 199 ( 1930 )

The appellee, Zelma Jolly, a minor, by her next friend, E.P. Smith, brought this action in the circuit court of Holmes county against the appellants, the Interstate Company, a foreign corporation, and Romeo Favretto, a resident of said county, for slander, and recovered a judgment in the sum of twenty-five thousand dollars, the amount sued for. From that judgment, appellants prosecute this appeal.

The facts in this case are, in all respects, substantially the same as were the facts in the case of Interstate Co. et al. v. Garnett (Miss.), 122 So. at pages 373 and 756, there being two opinions, one delivered by the court on the first hearing, and the other on suggestion of error.

The grounds relied on for reversal of the judgment in the present case, with one exception, which will be later considered, were the same grounds relied on for reversal of the judgment in the Garnett case. With much force and show of reason the appellants attack the decision in the Garnett case as unsound, and ask the court to overrule it.

After carefully and diligently reconsidering every question decided in that case, we are unwilling to overrule it. We are unable to see that the case lays down principles which will be mischievous and harmful.

The question raised in this case by the appellants which was not involved in the Garnett case is this: Whether, where one plaintiff has recovered punitive damages against a defendant for a tort, another plaintiff injured by the same tort will be permitted to recover punitive damages against the same defendant. The appellants contend he will not, and this contention arises out of the assumption, by the appellants, that the appellants in the present case are identical with the appellants in the Garnett case; that the Zelma Jolly referred to in the evidence in the Garnett case is the same person as the appellee in this case; that the Lelia Garnett referred to in this case is the same person as the Lelia Garnett in that case, and other facts, shown by the evidence in the Garnett case, including the recovery of, and payment by, the appellants of a judgment in the sum of fifteen thousand dollars, largely for punitive damages. The appellants base this contention on the principles declared in the case of Neal v. Newburger (Miss.), 123 So. 863, and the cases cited in the opinion in that case; that punitive damages are not an award for the benefit of a particular party injured as a matter of right, but upon the principle that such damages may have a deterrent effect and protect the public against a repetition of similar torts; that punitive damages are punishing damages, and are awarded to an injured party as a reward for his public service in bringing the wrongdoer to an accounting. Invoking these principles, the appellants argue that they were punished in the Garnett case in the sum of fifteen thousand dollars for the same wrongful act of which the appellee in this case complains, and which was the basis of the appellee's recovery of punitive damages. Appellants say, therefore, if the judgment in this case is permitted to stand, the appellants will be subjected to double punishment for the same tort.

We do not decide this question, because, on the record in this case, it is not presented for decision; the necessary facts above set out, assumed by the appellants to exist, not being in the record. Nor will the court take judicial notice of the facts shown in the Garnett case, and by that means treat them as facts in this case. Ill. Cent. R. Co. v. Walker, 116 Miss. 431, 77 So. 191. It is true that, in deciding a present case, the supreme court will take judicial notice of its former decisions and the facts upon which they were based in order to determine whether the principles of law therein declared are applicable to the case in hand, but it will not take judicial notice of facts upon which its former decisions were based to the extent of recognizing them as facts in the case under consideration.

In this case, as in the Garnett case, the trial court overruled a motion for a new trial on the ground that the verdict was excessive. In the Garnett case the judgment was reduced from twenty-five thousand dollars to fifteen thousand dollars. We are of opinion that the judgment in the present case is so large as to evince passion or prejudice on the part of the jury in rendering their verdict. For that reason alone the judgment is reversed, unless the appellee, within ten days from the day on which this opinion is handed down, will enter a remittitur of ten thousand dollars. Upon entering such remittitur, the judgment will stand affirmed, otherwise it will be reversed, and the case remanded to be tried alone on the issue of damages.

Affirmed, with remittitur.