Moore explained to the conductor that it was the mistake of the ticket agent in dating the ticket, and that he had bought it that morping at Oxford, and offered to let the conductor retain his satchel as security for the fare if he would take him on to Oxford, and, if the ticket was not as he represented it, he would then pay the fare; but the conductor refused to do this, and Moore explained that he did not have the money to pay his fare, but he was ejected from the car at the next station. The jury were instructed for the plaintiff that if they believed from the evidence that the conduct of the conductor was characterized by unnecessary rudeness and violence, or gross carelessness and willful wrong, they must find for plaintiff punitive damages. There was a verdict for plaintiff for $1,000, and judgment therefor. peals. From that judgment defendant ap Mayes & Harris, for appellant. C. L. Sivley and Jas. Stone, for appellee. TERRAL, J. It is a rule of law that every person is entitled to a remedy for his compensation for every injury to his person, reputation, or property, however inflicted by another person, and it also allows the jury to impose punitory damages for such injuries as are done under circumstances of insult, malice, fraud, oppression, or willful wrong. Storm v. Green, 51 Miss. 103, 109; Railroad Co. v. Scurr, 59 Miss. 456, 42 Am. Rep. 373; Manufacturing Co. v. Marlett, 78 Miss. 872, 29 South. 62. Other authorities might be added, but are omitted, because we know of no broader rule, anywhere advanced, than the one here stated. In the case here before us we find none of the elements that authorize their imposition by the jury, and they should have been so instructed. The most that can be said of the act of the ticket agent at Oxford is that he was negligent in the issuance of the ticket sold to appellee, and his negligence, if any, was of the slightest sort; for he states, and it is not disputed, that after writing the ticket, and while looking it over, as was his custom, in order to be sure of its correctness, it was taken from his hand by appellee, as the train was starting on its trip, and that the mistake in the ticket occurred on account of the sudden and unexpected hurry in its issuance, and to his evident regret, as his subsequent conduct shows. A negligence so gross as to evince a reckless disregard of consequence is also said to be a ground for authorizing the imposition of punitory damages (59 Miss. 461); but that sort of negligence cannot be fairly said to characterize the action of the agent in this case. And there was nothing in the act of the conductor of the train from which he was ejected that justified the infliction of exemplary damages. He simply executed the rules of the company, as it was his duty to it to do. The appellee was entitled to recover only his actual damages. For the error of the court in the instructions as indicated, and in refusing a new trial, the judgment is reversed, and the case is remanded. Reversed and remanded. ARBUCKLE v. STATE. (Supreme Court of Mississippi. Nov. 30, 1901.) CRIMINAL LAW - APPEAL - OBJECTIONS NOT MADE BELOW-JURISDICTIONAL FACTS-ASSIGNMENT AND PLEA- INSTRUCTIONS HARMLESS ERROR. 1. So far as Code 1892, § 4370, provides that failure of the record to show jurisdictional facts is not ground for reversal, in the absence of objection below, it exceeds the power of the legislature. 2. Where, after arraignment and plea of not guilty, defendant withdrew his plea and moved to dismiss the indictment, and after denial of the motion there was a trial,-defendant being present with counsel and introducing evidence, the plea will be regarded as withdrawn for purpose of the motion only, and reinstated after denial of the motion, though there was no formal renewal thereof. 3. Though Code 1892, § 1407, provides that defendant shall be arraigned, and if he stands mute the court shall have his plea entered, yet, arraignment and plea not being jurisdic tional facts, failure of the record to show them cannot be objected to for the first time on appeal; section 4370 providing that no judgment shall be reversed because of any error or omission in the court below unless the record shows that the errors complained of were made the ground of special exception in that court. 4. The law having been clearly and accurately given in charges asked by defendant, mere indefiniteness and vagueness in the instructions of the court is not ground for reversal. Appeal from circuit court, Tallahatchie county; F. E. Larkin, Judge. "To be officially reported." Henry Arbuckle was convicted of manslaughter, and appeals. Affirmed. Henry Arbuckle was indicted and convicted for manslaughter in the circuit court of Tallahatchie county. He was sentenced to the penitentiary, and appeals. The principal error assigned on this appeal is that the record does not show he was arraigned. Section 3, art. 7, p. 573, of the Code of 1857; section 2884 of the Code of 1871; Acts 1878, p. 200; section 1433 of the Code of 1880; and section 4370 of the Code of 1892, referred to in the opinion of the court, are as follows: Section 3, art. 7, Code 1857: "No person shall be acquitted or discharged in criminal cases, before verdict of a jury, for any irregularity or informality in the pleadings or proceedings, nor shall any verdict or judgment be arrested, reversed or annulled after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect, either of form or substance, which might have been taken advantage of before verdict, and which shall not have been so taken advantage of. Nor shall the words 'force and arms,' or the words 'contrary to the form of the statute,' or any other merely formal or technical words, be deemed neces sary in indictments, so the offense be certainly and substantially described therein." Section 2884, Code 1871: "No person shall be acquitted or discharged, in criminal cases, before verdict of a jury, for any irregularity or informality in the pleadings or proceedings; nor shall any verdict or judgment be arrested, reversed or annulled, after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect, either of form or substance, which might have been taken advantage of before verdict, and which shall not have been so taken advantage of. Nor shall the words 'force and arms,' or the words 'contrary to the form of the statute,' or any other merely formal or technical words, be deemed necessary in indictments, so the offense be certainly and substantially described therein." Acts 1878, p. 200: "Be it enacted by the legislature of the state of Mississippi, that section 2884, of the Code of 1871, be amended by adding thereto, the following: 'Nor shall any judgment be reversed in the supreme court in any case because of a failure of the court below to ask the accused what he had to say, why the sentence of the law should not be passed upon him; nor shall any verdict or judgment be reversed or annulled in the supreme court because the transcript of the record in said court fails to show a proper organization of the grand jury, or fails to show that the prisoner was present in court during the trial, or during any portion thereof, nor for any errors or omissions occurring before sentence which might have been taken advantage of in the court below, and which shall not have been so taken advan. tage of, unless said transcript shows that these errors and omissions were taken advantage of by motion or otherwise in the lower court; and when said motions are made in the lower court, it shall always be competent for the court to amend any improper entries or supply any omissions, so as to make the record conform to the facts as they occur. red." Section 1433, Code 1880: "No judgment in any criminal case shall be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury, or that the prisoner was present in court during the trial, or any part of it, or that the court asked him if he had anything to say why judgment shall not be pronounced against him upon the verdict; nor shall any such judgment be reversed, because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made a ground of special exception in such court." Section 4370, Code 1892: "A judgment in a criminal case shall not be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any er ror or omission in the case in the court be low, unless the record show that the errors complained of were made ground of special exception in that court." Wm. C. McLean, for appellant. Monroe McClurg, Atty. Gen., for the State. WHITFIELD, C. J. We think section 4370 of the Code of 1892 covers the character of objections made here as to the arraignment. No objection of any kind was made in the court below on the ground that the record showed no arraignment or plea of not guilty. Such failure to show arraignment and plea is cured by the failure to object in the court below. It was competent for the legislature to provide that the failure to object on the ground that there was omission in the record to show any fact not jurisdictional should preclude the appellant from making the point here, but it was not competent for the legislature to provide that the failure in the record to state jurisdictional facts might be so cured. Therefore we disapprove and overrule the declaration in Hunt v. State, 61 Miss. 580, that no case can be reversed in this court by reason of omission in the record to show jurisdictional facts. Arraignment and plea are not jurisdictional. They are mere steps in the process of the trial of the case which the circuit court had full jurisdiction to try. We refer specially to three cases (People v. Bradner, 107 N. Y. 9, 10, 13 N. E. 87; Spicer v. People, 11 Ill. App. 297; and Long v. People. 102 Ill. 336.—the last especially) to show that arraignment and plea are not jurisdictional. In People v. Bradner the court say: "The learned counsel for the defendant raises the further objection that the defendant was not arraigned, and did not plead to the indictment. The authorities are quite numerous to the effect that in a criminal case an arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment. Bl. Comm. 322; Bish. Cr. Proc. § 684; 3 Whart. Cr. Law, § 3154. Section 296 of the Code of Criminal Procedure declares that when the indictment is filed the defendant must be arraigned thereon. The defendant on arraignment may either demur or plead to the indictment (section 321), and the plea makes the issue of law or fact to be tried. The object of the arraignment is to inform the defendant of the charge against him, and to call on him to answer the indictment. 4 Bl. Comm. 322. A formal plea of not guilty is not necessary to put the defendant on trial. Under the Revised Statutes (2 Rev. St. 730. § 70) a demand of trial by a defendant/ was declared to be equivalent to a plea of not guilty. It is sufficient, we think, to consti We tute an issue, that the defendant, on his arraignment, informs the court that he denies the charge or that he demands a trial. are of the opinion that the record in this case does sufficiently show an arraignment and plea. The record states that on May 13, 1885, the 'defendant on arraignment pleaded not guilty.' The record then proceeds: 'Subsequently, and after arraignment as aforesaid, the defendant, by leave of the court, withdrew his plea, and moved the court to dismiss the indictment, under subdivision 2, § 313, Code Cr. Proc.' Then follow the affi. davits on which the motion to dismiss was made, and the decision of the court denying the motion; also a statement of the proceedings and evidence on the trial, and the finding by the jury of a verdict of guilty. It does not appear that there was a formal renewal of the plea of not guilty. [And to this feature we call special attention.] But the parties proceeded as upon the trial of that issue. The defendant was present with his counsel, and cross-examined the witnesses for the plaintiff, and introduced witnesses in his defense. It is a just inference that all parties regarded the plea as having been withdrawn for the purpose of the motion only, and proceeded to the trial on the understanding that it was reinstated when the motion was denied. The Code declares that 'no indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendants upon the merits.' Code Cr. Proc. § 285. It would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the -court and the parties." In Spicer v. People, 11 Ill. App., at page 297, the court say: "It is also urged that the defendant was put upon trial without entering his plea. It has been held that this is error, even in case of a misdemeanor. Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433; Gould v. People, 89 Ill. 216. But if this were the only point in the case, we should be inclined to hold, upon the facts as shown by this record, that, when defendant announced himself ready for trial, he, in effect, entered a plea, and that the failure of the record to contain a formal statement on that point would be a mere irregularity, for which, no other reasons appearing, the judgment would not be set aside. In practice it is not usual, even in prosecutions for the gravest offenses, to require a formal arraignment and plea, as was the ancient practice, the plea being entered orally by counsel,— and this has been sanctioned by the supreme -court. Fitzpatrick v. People, 98 Ill. 259." In Long v. People, 102 Ill. 336, the court say: "But it is said that the case was tried without a plea. On turning to the record we find the court found that the plaintiff in error on the 13th day of October, 1881, did appear in open court and enter his plea of not guilty, and the clerk was ordered to enter the plea nunc pro tunc; and when this order was entered, the record finds, plaintiff in error was present in court. But it is urged that this finding and order were made after the trial. If counsel had turned to the 423d section of our Criminal Code, we presume this objection would not have been urged on the attention of the court. It provides that the arraignment and plea shall be entered by the clerk on the minutes of the proceedings, and if the clerk neglects to insert in the minutes the said arraignment and plea, it may and shall be done at any time by order of the court, and then the error or defect shall be cured.' This, beyond all cavil, cures or removes this extremely technic al objection." A curative act, like section 4370, Code 1892. We indorse the declaration in the Flemming Case, 60 Miss. 440: "We thereby effectuate the object of the statute, which was to close the door against the general jail delivery resulting from the former doctrine, that the record must show affirmatively everything necessary to a valid trial, failing in which the judgment was set aside, many times to the defeat of justice, and scandal to the administration of the laws against crimes. This statute introduced a new era, and established the reign of common sense in the administration of the criminal law in this court. It infringes on no principle of justice, and in no way violates any right of the accused. It simply says you shall not overturn, on appeal, the conviction had, in the circuit court, except for something to which you made objection there. It is a most wholesome statute, remedial of great evil, and we will construe It liberally to accomplish the very proper purpose in its enactment." The plea is always made orally. The entry is mere evidence of the plea. The defendant went forward-the whole course of the trial was proceeded with-without the slightest objection. It is true that section 1407 of the Code of 1892 provides that the defendant should be arraigned, and that if he stands mute the court should have his plea entered; but this in no wise contravenes the view that, if the failure to observe its directions is not objected to in the court below, such objection will not avail here; for section 4370, Code of 1892, embraces not only omission to do things required by the common law, but omission to do things provided for by statute law as well. McQuillen's Case, 8 Smedes & M. 587, was decided under the common law; Wilson's Case, 42 Miss. 639, was decided under the Code of 1857, § 7, art. 3, p. 573, which is identical with section 2884 of the Code of 1871; and Cachute's Case, 50 Miss. 165, was decided under the Code of 1871, § 2884. It is a remarkable fact that neither in Wilson's Case nor in Cachute's Case do the court refer to the provisions of these sections of the Codes of 1857 and 1871, but they rely on McQuillen's Case, supra, in both cases. It would seem that the court overlooked the statutes. Counsel for appellant in Cachute's Case, 50 Miss. 167, do refer to the provision in the Code of 1871, and say that the statute cannot be applied to these defects, because "the verdict which under the statute is considered as curing defects of any kind is clearly a verdict upon a plea of not guilty," and the verdict in such case, they say, would be "a nullity, because it did not appear to be on any issue at all." However that may be, under the provisions of the Codes of 1871 and 1857, the point that the objection cannot be made in this court for the first time is certainly sound, since the act of 1878, which is substantially section 1433 of the Code of 1880 and section 4370 of the Code of 1892, has greatly enlarged the provisions of the Codes of 1857 and 1871. It will be observed that under the Codes of 1857 and 1871 the provision was that no verdict or judgment could be reversed, after the same was rendered, for "any defects or omissions," etc., "which might have been taken advantage of before verdict, and which were not so taken advantage of," whereas the provision of the Codes of 1880 and 1892 is that no judgment shall be reversed because of any error or omission in the case in the court below "unless the record shows that the errors complained of were made the ground of special exception in that court." Under the first two Codes the defects or omissions which are cured are those only which might have been taken advantage of before verdict. Under the last two, all defects and omissions, within constitutional limit, which occurred at any time in the court below are cured unless objected to therein.' Under the first two Codes the verdict cured the defects or omissions unobjected to. Under the last two it is not the verdict that cures, but the positive provision of the statute, which cures all defects or omissions unobjected to, without reference to whether they occurred before or after verdict. So if we should regard Cachute's Case and Wilson's Case as being decided upon the provisions of the Codes of 1857 and 1871, to which no reference was made by the court, it still remains true that they do not control here, because of the essentially different and greatly enlarged provisions of the corresponding sections of the Codes of 1880 and 1892. The reporter will set out the provisions of the Code of 1857, the Act of 1878, the Code of 1871, the Code of 1880, and the Code of 1892, in full, that the bar may see the differences by inspection. We therefore do not think this assignment of error well taken. Nor do we think the instructions numbered 2 and 3 for the state show any reversible error. The numerous and very accurately drawn instructions for the defendant presented his case in all its aspects with abundant fullness, and the jury were told in them that he could kill not simply to save his life, but to prevent the infliction upon him of great bodily harm. The language of instruction No. 3 for the state cannot fairly be said to tell the jury that the words used by the defendant constituted a justification. That is only part of the sentence, and the very next words of the sentence, "if they believe those words were a sufficient justification," make it plain that the jury were simply told that they might consider the words as a justification, and if they thought them a sufficient justification, etc. The criticism that the knife was dealt with by the said instruction as if it was a deadly weapon, we think, strains the instruction from its natural meaning. The evidence in the case, and the result, show that the knife was a deadly weapon, because it is plainly shown that he died from the effects of the wound a few days afterwards. So that even if the instructions told the jury that the knife was a deadly weapon, whilst it would be error, it would not, under the facts of this case, be reversible error, for the same reason that was given by us in Saffold's Case, 76 Miss. 258, 24 South. 314. We do not think the instruction tells the jury directly that the defendant's purpose was to cut deceased. The language does not bear that construction, fairly considered, although it is inartificial; and there was evidence that defendant said, "Now I will open him," or "cut him open," showing his purpose plainly. Without further specification we say only that we do not regard the other criticisms made of this instruction as sound, reference being had to the charges for the defense, which, in the most abundant manner, state every proposition of law for the defendant upon the very points covered by the third instruction for the state. If this third instruction were flatly and directly contradictory of the announcement on the same points in defendant's charges, it might constitute reversible error. But that is not the case with it. The most that can be said is that it is carelessly and awkwardly drawn; it is deficient in clearness and distinctness. But every particle of this indefiniteness and vagueness is thoroughly and completely dissipated by the charges for the defendant, which are models of clearness and excellence in the presentation of the defendant's case, and which make it impossible, as we think, that the jury could have been misled. Affirmed. SOUTHERN RY. OU. IN MISSISSIPPI v. In an action against a railroad by a physician for services rendered in caring for a railroad employé who was desperately wounded and had lain for several hours without medical aid, it appeared that the train master, who was shown, without contradiction, to be acting as local superintendent, told such physician to take charge of the case for a certain fee. The railroad had regular surgeons in employ, but none were within call at the time. Held, that such train master, as superintendent, had authority to employ a physician, so that the railroad was liable for the services rendered. Appeal from circuit court, Leflore county; F. E. Larkin, Judge. "To be officially reported." Action by Brister & Humphries against the Southern Railway Company in Mississippi. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. Catchings & Catchings, for appellant. Gwin & Mounger, for appellees. TERRAL, J. This is a suit by Drs. Brister & Humphries, physicians and surgeons, against the Southern Railway Company in Mississippi for services to Asbery Crosby, an employé of said company. On the 30th of October, 1900, Crosby, an employé of the company, while engaged in its service, was run over by one of its trains, and was seriously, and, as it soon proved, fatally, injured. The injury happened at or near Greenwood, Miss., and, Crosby being in Greenwood, De Hart, the company's station agent there, sent a call to Dr. Humphries, whose services in like cases the company had before refused to compensate; and he informed De Hart that he would attend the injured employé if De Hart would be responsible for the fee. De Hart asked him to wait a little, and, as we infer, placed the case before the train master, Francis, who wired Dr. Humphries to take charge of the case for the fee of $100, unless he was appointed the company's surgeon. Dr. Humphries attended the wounded man, gave him all necessary medical attention, and procured and paid for other necessary care and nursing of him, and after a few hours the patient died. The company not having engaged Dr. Humphries as one of its surgeons, he brought suit for the agreed fee of $100, and recovered a judgment therefor, and from the judgment the company appeals. The record discloses that plaintiffs below proved their contract with Francis for the payment of the fee of $100, their performance of their part of the contract, and the breach by the defendant. They also proved by Mr. Dunn, a former employé of the defendant, that he knew Francis, the train master, and that he had authority in emergencies to employ a surgeon temporarily, and that Francis also acted under the superintendent, and performed the duties of local superintendent. This evidence was not objected to or controverted. So far as we can gather from the record, De Hart was the only officer of the company immediately on the spot. He evidently referred the matter to Francis, who, we must presume, was the next officer of authority within reach, and who had the means of knowing all that De Hart knew about the case, as Crosby was in the room of the depot, and with him the contract was made for the company. The company had surgeons in employ, but they were not in call. From that fact we infer the company recognized its duty to employés injured in its service. Now, it is admitted that Francis might, perhaps, employ a surgeon in an emergency; and Crosby was desperately wounded, and had lain some hours without surgical aid, and no emergency to him to have a surgeon could be greater. We incline to the view that under the circumstances of this case, and upon the evidence contained in the record, Francis had authority to bind the company, and the contract made was valid and enforceable. In Railroad Co. v. Thomas, 19 Kan. 256, 20 L. R. A. 696, note, it was held that a division superintendent will be presumed to have authority to employ a physician to attend an employé who has been injured while in the service of the company. Whether Francis, as train master, had authority to contract with Dr. Humphries as he did, we are not bere called to decide; but, inasmuch as at the time he was in the exercise of the functions of a division or local superintendent over that part of the road, we think it may be presumed that he had the power to so contract. Moreover, Dunn testified that Francis had such authority, and his testimony is not controverted or denied. evidence, of itself, was sufficient to support the verdict. Affirmed. This EVINS et al. v. CAWTHON. (Supreme Court of Alabama. Feb. 13, 1902.) EQUITY-PARTIES—JURISDICTION-CON STRUCTION OF WILL. 1. Where the residuum of the decedent's estate was, as directed by the will, after payment of the debts and special legacies, divided between complainant and her sister, complainant having issued to her a certificate for 52 shares of stock in a bank, the executors are not necessary or proper parties to a suit by her to compel issuance by the bank of new certificates that she may carry out a sale of 5 of the shares, and incidentally for construction of the will as to her power of disposition of the stock. 2. Equity having assumed jurisdiction of a bill to compel a bank to issue new certificates to complainant that she may complete her sale of part of the shares, will, as an incident thereto, construe the will under which she obtained the shares, to determine her power of disposing of the stock. 3. Under a will bequeathing the residue to be divided between testator's two daughters, and providing, if either dies without surviving child, the surviving daughter shall have all the property given to the deceased daughter, and not by her expended, a daughter has power of disposition of her share by sale, though by a subsequent provision commencing, "It is my purpose to prevent my daughters from disposing of the property bequeathed them," testamentary disposition of the property by the daughters is denied them. Appeal from city court of Selma; J. W. Mabry, Judge. |
