Alabama & Vicksburg Railway Co. v. Harz , 88 Miss. 681 ( 1906 )

Whitfield, C. J.,

delivered the opinion of the court.

The case of Richberger v. Express Company, 73 Miss., 161 (18 South. Rep., 922; 31 L. R. A., 390; 55 Am. St. Rep., 522), is decisive against liability on tbe part of tbe railroad company on the facts in this record.

On behalf of appellant, Dabney, it is said that the court erred in not allowing Dabney to state whether he was acting for himself-or the company in committing the assault. It is true that the court did first so refuse to let him testify, but in less than ten lines below the record shows that he was allowed to testify on this point. There is no merit, therefore, in this objection.

The testimony of the witnesses, Robinson and Dourshay, was allowed to go to the jury in full by the court. The defendant, Dabney, thus got the full benefit of the alleged provocation, although the provocation had been given three days before.

The ingenious argument of counsel to show that the witness, Day, should have been permitted to testify that he saw Dabney hand the money to Harz is clearly seen, in its last analysis, to be fallacious. The learned counsel for appellant relies on the case of Prentiss v. Shaw, 96 Am. Dec., 475, and it must be admitted that it fully sustains their contention to the effect that such testimony is competent to mitigate the damages which the jury may impose by way of punishment, although not competent to mitigate actual damages. Our own court, in Martin v. Minor, 50 Miss., 42, has laid down the correct doctrine on this subject, which we now reaffirm. The case of Prentiss v. Shaw, supra, is a remarkable case of judicial special pleading, and strikes us as a very ingenious, but thoroughly unsound, effort to change a settled rule of evidence to suit the political exigencies of a very unique case. It is not supported by any authority whatever.

It results from, this that the judgment of the court below is reversed as to the railroad company, and the suit as against the railroad company is dismissed, and judgment as against appellant Dabney is affirmed.