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

bersteiy and Intentionally iDjurs the plaintiff.
Although the doctrine that sxAmplary or vindic.
tive damages may be given IN actions Of tort, when
the wrong Vas wantonly or mAliciousy committed,
has been uniformly acted upon ct N,si Prtxs, and
sanctioned both by thu Supreme Court and the
Court Of last resort Of this State its justice or any
Dain vs.. wykof e. Seld. R. 1887 by an eminent
Judge Of the Court Of Appeals.
We have also been favored with the opinion o
Mr.. Justice Jewett and that Of Mr.. Justice Mason,
Church. That was an action for libel. The Judge
charged that il the jury were satisfied that the de-
PENDANT was influenced by actual malice or debe-
rat, ss uel damages sDs sdsoD sy
Compensation for the injury as are suited to the
aggravated character which the act assumes, and
as are necessary as an example to deter from the
ceptiop. Mr.. Justice Jewett held this part Of the
charge to be correct, and Mr.. Justice Mason held II
TO be clearly wong. pots Of the reporter states
five s1SsEs Of eS as Court S not aue
now under consideration. All the Judges agreed
with Mr.. Justice Jewett in granting new trial, on
another ground, stated in his opinion.
How many of the Judges were present on the a.
gument Of that case or took part In the decision of
Il, the reporters note does not state.
If the Court Of Appeals has not directly affirmed
the contrary Of the instruction sought the trial Of
this action, neither hiss 1t affirmed that such an in
sn ucti0n would be proper.
To instruct jury as the Judge before whom this
action was tried was requested to charge the jury
law ss has been uniformly stated to juries in nch
actions In this State, from the earliest period Of it's
judicial history, 30 far as the practice Is evidenced
by reported decisions.
Under such circumstances, we do not feel at
liberty to disregard Q rule 10 long and uniformly
held, and directly affirmed by the Supreme Court
OF this Stale, half C injury ago, and II not expressly
decided ice least clearly approved BY the Court
and in Root vs.. King. (See Day vs. Woodwork, IS;
Bow. U. s. Il. 371-2: Austin vs.. Wilson, 4, Cath.
Rx. 273, and the cases cited by counsel In Randall
fin actions Of libel AID slender and in other &C.
lions OF tort for injuries to the person. or to charac
ter, damages may be given when the act was wan
ton, or actually malicious, which would not other.
wise be allowed, although In each case the actual
pecuniary injury, the extent Of personal suffering,
the ateI dant crcuMstaI css of contumey and indig
nifty, and the public disgrace, be precisely the same
in the one case as In the Other it is Of practical
tive, viDcicive or compensatory. BY whatever name
they may be designated, they are msnifestly given
on account OF the xantonness or malice Of the de-
fendsnts cor duct, and the very rule which deser-
mines whether they may be given or must be with
held has 10 real principle on which it can stand, II
it be conceded that they cannot be given by way of
example, or to punish atrocity Of conduct.
it cannot he an ndsns Waetser
defendant Ii rich or poor. Damages which would
be Exemplary, when il ficted upon person in mod.
erste circumstances, would be trivial and in no prac.
teal sense exemplary when imposed upon person
whose property and Income were very much larger.
Who ire parties to q controversy Of such char
aeer as this, are, what are their pursuits and posi-
TORS, snc wat the influence resulting from them
by libel pnbby either Of the other, may be, are
not unmp0tant parts Of the transaction itsef Such
considerations sometimes give to libel and ander,
all that it has OF substantial interest or importance
however gross the terms of the libel they alike fail
to give respecfablty to the a,ion excite interest
as to the cefenCe.
In considering the question raised by the ex,ep.
ton to the refuEal to charge requested we have
MT referred 10 the decisions Of the courts Of any
ether State. We have forb1rna to make such refe-
rerce for the reason that the decisions Of the courts
Of this State have been uniform, and reach back to
period SO remote that We do not feel ct liberty TO
Treat ths question 90 open in this State not
withsfandrg the doubts re emily expressed by some
members Of our Court Of Appeals, in relation both
TO the justice Of the rule aud the existence Of any
authority by which IL can be upheld.
new isl is granted, on the ground that the de-
position Of Strakosch was imp oIerly admitted. A
new trial being granted on that ground, it mast be
with costs 10 ABIDE the event Of tie action.
The following is the de ision Of justice Hoff.
man -
HOFFMAN, Jas concur with my brethren in
their con- lusions, upon every point Of the cause,
snd consider the reasons assigned by Mr.. jas
tce Bosworth 40 sufficient to sustain such conclu-
sons it might appear nee dless to add anything to
lcnulUR
this csse-tfe right to give vindictive damage in
libel suit where actual malice is found by the jury
receives great Importance from the opinions Of
Judges Of the Court Of Appeals, which question that
had received from my professional teachers as I'M
questioned, irreversibe law, has made me feel Il
duty to add something to the reasoning and suthor.
ties upon which the opinion Of my brother isfounded
Ire twenty ninth exception taken by the defend.
ants counsel upon tie trial, involves the point in
controversy.
The Judge was requested to charge a. follows
Tfat the jury should md any ground for giving
such sum orly as would compensate him for the in
jury he bad sustained thereffom and that the jury
were not ct liberty to give him any further sum By
way 81 punishment Of the defendant, or by way Of
The observations of my brother Bosworth, in con-
trsstpg this request with the charge actually made
and bis conclusion that The refusu is not, when the
me ursnsweable. But am desirous Of expressing
my own opinion upon this great point, when placed
in tie strongest form In which It can be presented
ior the defendant. shall therefore, consider it q
the proposition to be the law and had employed the
language OF the request, varying 1t only BY emitting
the word "not in the latter part and Inserting the
same word after the word "should" in the first
clause.
In determining whether this would be ground OF
exception, the Court is justified In connecting 1t
With portions Of the cha 60 actually made, pertinent
20 sns same question: i may thereiore b, viewed,
In conjunction with the ilatructi0n "that an actual
malicious intent In making the publication might
be proven, and the jury was to Judge by the evil
dence whether such 81 intent was made out II
such was the case add che defendant mad net proven
ns ale gauors 70 Dc srue as should not escape with
nominal dsmagea"
shall treat the Q1es.on then, MS the counsel In
siss must be treated under tho refusal and the a.
tual charge; snd shall suppose that the Judge had
dded after what nave quoted from the charge the
converse Of the proposition contained In the request
90 have stated Il.
1t 70 to be noticed that this proposition does not
nvolve pnt may DC entirely consistent with, tho ex
cluson If the idea Of puuishmens for the inury done
TO society. II Is punishment Of the defendant Tor the
wrong done the plsintif. It is pun ishment for an
injury attempted or designed, rs well as Tor one in.
ficted. 10 punisbment for the intent TO iuiurs 10
numerous cares, where injury can Or ,bably arise
and Il il consistent with the assn nnton fsaf fhe III