The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-02

IN lie eonefal elIafee 10 Tho lnfy, wimeln
tlie following language waa Used, lO.wlt
Nv ihl4 taae Tie gOOde having Huld The
measure NJ actual damages Would DO the
value ~ " the goods ~ seized nj tho line
taken and NJ the place taken with eight per
cent Interest thereon from the date u tle
seizure 10 date, not ~ exceed 81 800 In
another part Of tile charge tho Jury are In.
slructed, that, you will next inquire
whether The attachment was mallolously
sued nut and without probable cause " you
find II waD YOU will then be authorized TO
find for the defendant exemplary damages
not TO exceed $4,000, i. is complained
because this proposition was announced
In their different clauses The whole
oisaid charge Is erroneous because IL 10
nrgumentatiye In It's character; Is contin:
uous recital and repetition OF the ways and
means by and through which defendant
would be entitled 10 recover damages OF the
plaintiff and was in its very nature calcu,,
| lated TO, and did confuse, prejudice and
misead the Jury and, besides, is q COM
mentary upon tho weight of the evidence
adduced ON tho trial" The phraseology
and arrangement of charge 10 the jury,
when 1t conforms to the requisite OF the
statute and TO the law OF the case as applied
to the issues and evidence, must be, in q
great degree, to the taste and discretion OF
the Judge who gives 1t. The charge under
consideration conforms in its general fea-
lures and to those usually given in such
cases, and that we say under these assign
ments, rs designated as suggestions which are
deemed worthy of consideration, as tending
to prevent the frequent recurrence OF simi'
lar assigned errors TO the above. Although
| it is common to use such expressions as
that objected to in the thirteenth assigned
error, in charges to the jury, and may be
said To be authorized by that part OF the
pleading in which the plaintiff alleges the
amount of his damages. vet the practice
is subject TO objection. 1t is weli-known
fact, that it IS the almost invariabie rule
with the pleader. or u mere matter OF form,
70 place the general of damages
at an amount far exceeding any reasonable
calculation. When, therefore, the
i for the plaintiffs, they are
authorized to give damages not exceeding
the amount ofgeneral damages thus laid
in the pleadings, they take such an express
sion as an intimation upon the part OF the
court, that the evidence authorized YER
dict for the tull amount claimed. In Bryan
VS.. Acek, q Georgia, Is, on damages
quoted in note ], 332, 2 Ledg. q vol.), when
the highest value of house, torn down and
rcr1oyed by the defendant, testified to by
any witness, was $3.50, and the court: in
structed the jury that if they found IL
case for exemplary damages, they might
find a verdict for any amount not exceed
ton. which was $4,000, and the
Jury found verdict for $J67;
Ibis was set aside on tie ground that this
instruction might have improperly in.
fluenced the verdict as to the amount OF
damages. (See Glasscock VS.. Hull,
Galveston term, June 10, 1889. Under our
practice the,pleadings are always read to
| =, -
the amount claimed. and if per adventure
thew should now and then exceed this, the
error can be easily corrected by remit
titurr, Upon the question raised in the four
teenth and sixteenth assigned errors, 1t is
suggested that if distinct, legal PROPOSE
ton, as applicable to the issues and cyl
dence, is once thereby announced 1n'the
the iurv with the belief that IN the opin-
ion of the presiding judge the
facts demand its application in this partic-
lar case, and then their verdict may
thereby unintentionally be influenced. The
thirteenth assigned error is to the eif"ct
that the verdict is excessive and that anew
trial should have been granted Exem,
discretion of the jury. This discretion is
often absurd but the courts from the very
necessity of the case, are frequently EN-
barassed in deciding where the line of pro-
ner discretion ends, and when that of ar
bitray abuse commences. The legislature
wisely, in the administration of the crimi-
nal law, has seen proper to limit TINS DIS
erstion BY th providing aWs w as GENE fne
in money is provided either as the only
punishment or as the alternative
imprisonment, that the same shall not be
less nor more than certain amounts
illustrations the fine for false imprison-
ment does not exceed $500; for libels, which
affect the reputation and may also AFFECT
the business credit of party, is not less
than 800 nor more than 81 900; for mall
cious mischief to property, was under our
former statute regulated i'll many cases by
the value of the property, generally not TO
exceed three times It's value, is under the
Revised Statutes from $40 to $4,000. That in
criminal cases the legislation, both for the
protection of society and OF the individual
offender, should place limit on the verdict
OF a Jury, and yet, exemplary damages,
which are allowed only in those
civil cases which are quasi criminal
in their nature, and then as fine or pen
altv. should rest in the discretion OF jury,
whose verdict, in great majority oil cases,
far exceeds highest fines allowed by law IN
criminal cases, is an Inconsistency whlch
may well arrest the attention OF the legs
lative and judicial minds, by analogy, IN
the absence of more definite rule, we
might look to the example OF the leglsla-
ture in those cases, in which they nave
fixed a minimum and maximum AMOUNT
proportioned to the injury received. what
was said by this court in Railroad Company
VS., = Nichols, Galveston term, June
18th, 1882, is applicable In TINS
case, that exemplary damages,
when allowed, should bear proportion
to the actual damages sustained; mobile
q Montgomery railroad company vs..
Ashcraft, As Alabama, 33l; and that IN
this cause the actual damages assessed by
the Jury was $1,000; but the exemplary
damages were assessed at 5000, which to
us seems as clearly excessive when con;
trasted with the sum found ior actual
damages, and considered with reference 10
the facts of the case. That we are forced 10
10 the conclusion that 1t was the result oil
passion or prejudice, stimulated, perhaps,
by the course pushed on this trial" IN
that case, the proportion between the
actual and exemplary damages was as z
bears to s: here it is nearly as 1 to II. In
this connection Il is deemed proper to say
that the case of the railroad company VS..
Randall go Texas, 25i), so often cited 10
sustain large yerdicts, was one OF actual,
NOT exemplary damages. In our opinion
the yerd ct in this case is excessive. FOR
the errors above indicated, the Judgment
below and the cause remanded; bonner,
/. Reversed and remanded. nj. ID. BOn-
ner, associate iustic e.