The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-19

cunt 70 give, unls..it j. 70 be inferred from the
fact Of the request ixen.
cannot believe thKt when . charge unexoep-
go further, and charge proposition, which, as an
abstract ole, Is sound when the converse OF 1t has
neither been asserted by the adverse party NOR its
application invoked to the disposition Of any part
Unless the defendant, in his request to the Court
TO charge that Ia addition to compromising the ipju
~, the jury were not 81 liberty o give any further
sum by way OF punishment o. the defendent, or ~
way Of vindictive damages, or as smart money"
used these three alternatives as SYNONYMOUS expires
sions, then It was not erroneous In any view to
charge BE reque ted, "vindictve damages" or
Unless his proposition an entire one was sound,
it was not error to refuse to instruct the jury to
adopt and be governed byit.
We do not understand the learned counsel for the
sction Of libel, the jury are not only to consider and
com ensate any actual pecuniary loss, but II the
injury was wfnl or intentional, they may consider
the mental sufferiDgs of the plaintiff, the cilcum.
stances Of indigDty and contumely under which the
wrong was done and the quent public disgrace
to the plaintiff, together with any other circumstau
ces belonging to the wrongful act and tending to the
But he in sists that when the jury, in the exercise
OF sound discretion have arrived at what, In their
Judgment Is pi oper compeneation-hsving refer.
ence TO all these circumstances-their duty and
pensation to punish the defendant iof the public
good by lettering him from doing similar wrongs to
the came plaintiff or TO others.
One consideration naturally suggests itself upon
the mere statement Of these propositions. plain.
tiff who has been injured by tort or wrong Of de.
fendant is entitled In all cases to his actual damages
II these include compensate for mental suffering,
and consideration Of the circumstances Of indig.
nifty under which the wrong was done, the public
disgrace inflicted, and other actual discomfort pro
duced, the plaintiff chou be compensated ct all
events, whether the wrong was wanton, or Was
done believing the charges published to be true.
In either case, the mental suffering must be as
great, the circumstances Of apparent indignity are
the same, and his disgrace win be as absolute and
Notifying in the one case a. the other IL his char
act<r has been INDICATED by verdict establishing
the fslsity Of the calumnies charged against him.
II such considerations are not constituent ele-
ments Of damages, and II pers,n who has beeu
injured in these respects is not to be compensate
defendant 10 to be exonerated from such damages,
when the injury was not wanton, and is to be sub
jected to them when it was, then such damages may
not insptly be termed punitive, or vndictive, or
damages given Gs smart money.
If the right TO thsm does not result from the fact
Of the wrong and the suffering and disgrace caused
by 1t, then they are not given to compensate for
such injuries, IS matter OF course, merely because
he wrongfully caused them; but because he caused
them from deliberate purpose to infiict them, with.
ont any thing TO pallate or Mitigate his conduct.
Logically speaking, such damages when given,
are awarded full IS mnch to punish defendant as
much by way Of smart money, as because the plain
tiff Is entitled to them an indemnity inasmuch as
they are given in consequence OF the wantonne5s Of
the wrong and not merely on account Of the suffer
ings, discomfort and Disgrace caused by them TO
the plaintiff
A reference to some Of the cases will show that
the decisions IN the courts Of this State, on this
point, have beer uniform. Tillotson " Cheetham,
8, j. r. Sc, wss an action for lbsl No plea was
put in, ard court OF inquiry was executed before
Oh. ]. Ken; ard o jury.
The Judge charged the jury, that the case :" de-
mapded from the jury exemplary damages y -
/" tbst he did not acceae TO the doctrine that the
jury ought not to punish the defendant, in civil
suit, for toe perncious effect which publication of
this hind wss calculated 20 produce IN society"
The defendant moved to set aside the inquest,
and insisted that the charge OF the Judge
was incorrect i'm stating that the plaintiff was
entitled to exemplary damages on account of the
monity. In private action, the party can recover
only Tor the private wrong; he bss no concern with
the public offence, for which the defendant must
atoI On the Indictment"
The motion was denied Kent, Oh. j., after citing
CAGES, which, in his view Of them, sanctioned the
doctrine contained in this part OF the Charge re-
marks that 1t ia zoo well settled In practice, and
is toe valuable In principle to be called in question"
and Van Ness j., declared themselves to be Of the
faIne opinion" Spencer j. said that in vildictive
actions, sinh as for hbels, defamation. assault and
battery iase ana s variety q others,
are 10 rict damages for example sake, aud by way
Of punching the defendant"
flis decision was male in 1908, and seems to be
direct adjudication Of the question presented in
In Hoyt Ct lston (etal Is, ]. R. l4l-l5l (which
was an action OF t-espass for seizipg vessel &C.,
the plaintiffs counsel admitted 9 that the defen-
tivea in making the seizure; and that they had not
acte therein with any view or design Of depressing
or iDjuripg the plaintiff. The presiding Judge
held that such admission pye;luded the plaintiff
from claiming any damsges against the dsfon dants,
by way Of punishment or smart money; and that
sitter such admission the plaintiff soud recover only
the actual damages sustained and he gave that d.
recti0n to the jury"
InWory We. jenkins, "a J. R.. 1922 being an action
Of trespass, for beating the plaintiffs mare by rea
sen whereof she died, the mare was proved to BE-
worth $50 or SEQ. The Judge told the jury the
plaintiff was entitled to recover the value q the
mare; and they believed, as he did, that the de-
PENDANT had whipped her to death, II was case in
which, from the wantonnees and cruelty Of the de-
fendatts conduct the jury had right TO give smart
money" They found averdict for SIS.
A motion was msds to set aside the verdict, for
excessive damages and mi sdirecti0H Of the Judge.
The court sid, We think the charge of the Judge
was correct; and We should have been better sstis
been greater ar more exemplary"
In Woodward Va. Paine, 10 j. r. 494,) the same in
struction wss given TO the jury and the correctness
o. the decision affirmed.
IN rcot We. fupB,(4 WebQ, ll3,) winch WAS An &C.
ton for libel, the presiding Judge, after giving his
views Of the evils Of q bitter and unInidgated
aspersion Of private character, through the
medium q Newspapers, stated In his charge
that Gin ftiing tsse jury could render no more
mertoious service 10 the public than in REFRESHING
this enormous evil IL can only be done by visiting
with severe damages, him who vsntonly and falsely
asails the character Of another through the public
papers,"
No exception was taken to this part Of the
charge.
The Chancellor In bis opinion, stated the rule to
be that "the jury msy not only give such damages
they think necessary TO compensate the plaintiff
for his actual injury, but tbey may also give dam
by way OF purishment, TO the defendants. This is
money!
In Zero v. Ruscoe, a CONS. 1929 which was an
action for SANDER the Judge charged that the failure
TO establish Qualification was in lay, an aggrava
tion Of the SANDER and that the defendant was not