DAMAGES.

§ 253. DAMAGES are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more, nor less;1 and this, whether it be to his person or estate. Damages are never

1 Co. Lit. 257 a; 2 Bl. Comm. 438; Rockwood v. Allen, 7 Mass. 256, per Sedgwick, J.; Bussy v. Donaldson, 4 Dall. 207, per Shippen, C. J.; 3 Amer. Jur. 257.

2 Since the first edition of this volume, Mr. Sedgwick has given to the profession a valuable treatise on the Law of Damages, in which he denies the soundness of the general rule here stated; and lays down the broad proposition that," wherever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the Jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender." Sedgwick on Damages, p. 39. However this view may appear to be justified by the general language of some Judges, and by remarks gratuitously made in delivering judgment on other questions, it does not seem supported to that extent by any express decision on the point, and is deemed at variance not only with adjudged cases, but with settled principles of law. This will be apparent from an examination of the authorities on which the learned author relies.

In the first case cited, in support of his position, that of Huckle v. Money, 2 Wils. 205, which was an action to try the legality of an arrest under a general warrant issued by the Secretary of State, the Jury found a verdict for £300, which the defendant moved the Court to set aside as excessive. But the motion was denied, on the ground that the damages were properly left at large to the Jury; with instructions that they were not bound to any certain rule, but were at liberty to consider all the circumstances of oppression and arbitrary power by which the great constitutional right of the plaintiff was violated, in this attempt to destroy the liberty of the kingdom. All which the Jury were thus permitted to consider, were circumstances, going in aggravation of the injury itself which the plaintiff had received, and so were admissible under the rule as stated in § 266, 272, of the text.

given in real actions; but only in personal and mixed actions. In some of the American States, the jury are authorized by

The case of Tullidge v. Wade, 3 Wils. 18, was of the same class. It was trespass for breaking and entering the plaintiff's house and debauching his daughter; and the Jury were instructed to take into consideration the plaintiff's loss of her service, and the expenses of her confinement in his house. The verdict, which was for £50, was complained of, as excessive; but the Court thought otherwise, "the plaintiff having received the insult in his own house, where he had civilly received the defendant, and permitted him to make his addresses to his daughter." And it was observed by Bathurst, J., that "In actions of this nature, and of assaults, the circumstances of time and place, when and where the insult is given, require different damages, as it is a greater insult to be beaten upon the Royal Exchange, than in a private room." It thus appears that in this case, the damages were limited to the extent of the injury received by the plaintiff; and that the remark of Wilmot, C. J., relied on by the learned author, was altogether gratis dictum. In Doe v. Filliter, 13 M. & W. 47, which was trespass for mesne profits, the only question was, whether in estimating the costs of the ejectment, as part of the plaintiff's damages, the plaintiff was confined to the costs taxed, or might be allowed the costs as between attorney and client. The remark of Pollock, C. B., respecting "what are called vindictive damages," though wholly gratuitous, is explained by himself to mean only that the Jury may "take all the circumstances into their consideration," namely, the circumstances of the injury inflicted, so far as they affected the plaintiff. The like may be observed of what Mr. Justice Washington said in Walker v. Smith, 1 Wash. C. C. R. 152; which was an action against the plaintiff's factor, to recover the balance due to the plaintiff for goods which the factor had sold without taking collateral security, in violation of orders, the purchaser proving insolvent, and partial payment only having been obtained. The question was, whether the Jury might assess damages in their discretion, for less than the plaintiff's actual loss, taking into consideration all the favorable circumstances on the defendant's part; or whether they were bound to give the plaintiff the precise sum which he had lost by the violation of his orders. And the Judge instructed them that the latter was the sole measure of damages; remarking, passingly, that in suits for vindictive damages the Jury acted without control, because there was no legal rule by which to measure them. His meaning apparently was, that in actions "sounding in damages," the Court had no control over the sound discretion of the Jury; but that where the damages were susceptible of a fixed and certain rule, the Jury were bound by the instructions of the Court. The case of Tillotson v. Cheetham, 3 Johns. 56, is also relied upon. This was case for libel; in which the Jury were instructed by Kent, C. J., " that the charge contained in the libel was calculated not only to injure the feelings of the plaintiff, but to destroy all confidence in him as a public officer; and in his opinion demanded from the Jury

statutes to assess, in real actions, the damages, which by the Common Law are given in an action of trespass for mesne profits; but this only converts the real into a mixed action.

exemplary damages, as well on account of the nature of the offence charged against the plaintiff, as for the protection of his character as a public officer, which he stated as a strong circumstance for the increase of damages;" adding "that he did not accede to the doctrine that the Jury ought not to punish the defendant, in a civil suit, for the pernicious effects which a publication of this kind was calculated to produce in society." Here the grounds of damages, positively stated to the Jury, were expressly limited to the degree of injury to the plaintiff, either in his feelings, or in his character as a public officer. The rest is mere negation. The Jury were not instructed to consider any other circumstances than those which affected the plaintiff himself; though these, they were told, demanded exemplary damages. In this view, all damages, in actions, ex delicto, may be said to be exemplary, as having a tendency to deter others from committing the like injuries. These instructions, therefore, were in accordance with the rule already stated. In support of them, the Chief Justice relies on Huckle v. Money, and Tullidge v. Wade. He also refers to Pritchard v. Papillon, 3 Harg. St. Tr. 1071; 10 Howell, St. Tr. 319, 370, S. C., which was essentially a controversy between the crown and the people, before "the infamous Jeffries;" who told the Jury that "the government is a thing that is infinitely concerned in the case that makes it so popular a cause;" and pressed them, with disgraceful zeal, to find large damages for that reason, and for their compliance in finding £10,000, which was the amount of the ad damnum, he praised them as men of sense, to be greatly commended for it. The ruling of that Judge, in favor of the crown, will hardly be relied upon at this day as good authority. But in Tillotson v. Cheetham, the learned Chief Justice, in saying that the actual pecuniary damages in actions for tort, are never the sole rule of assessment, probably meant no more than this, that the Jury were at liberty to consider all the damages accruing to the plaintiff from the wrong done, without being confined to those which are susceptible of arithmetical computation. The remark of Spencer, J., beyond this was extrajudicial. In Woert v. Jenkins, 14 Johns. 352, which was trespass for beating the plaintiff's horse to death, with circumstances of great barbarity, the Jury were told that they "had a right to give smart-money;" by which nothing more seems to have been meant than that they might take into consideration the circumstances of the cruel act, as enhancing the injury to the plaintiff by the laceration of his feelings. In the Boston Manufacturing Company v. Fiske, 2 Mason, R. 119, the only question was whether in case for infringing a patent, the plaintiff might recover, as part of his actual damage, the fees paid to his counsel for vindicating his right in that action. The observations of the learned Judge, quoted by Mr. Sedgwick, were made with reference to the practice in Admiralty, in cases of marine torts and prize, where a broader

§ 254. All damages must be the result of the injury complained of; whether it consists in the withholding of a legal

discretion is exercised than in Courts of Common Law, the Court frequently settling in one suit all the equities between the parties in regard to the subject-matter. The next case adduced is that of Whipple v. Walpole, 10 New Hamp. R. 130, which was case against the town of Walpole to recover damages, for an injury arising from the defective state of a bridge, which the defendants had grossly neglected to keep in repair. The bridge had broken down while the plaintiff's stage-coach was passing over, in consequence of which his horses were destroyed. The Jury were instructed "that for ordinary neglect the plaintiff could not recover exemplary damages; but that such damages might be allowed in the discretion of the Jury, in case they believe there had been gross negligence on the part of the defendants." The question seems in fact to have been, whether the Jury were confined to the value of the horses, or might take into consideration all the circumstances of the injury. The sole question before the Court in bank was whether the above instruction was correct; and they held that it was. The remark that

the Jury might give "damages beyond the actual injury sustained, for the sake of the example," though gratuitous and uncalled for, seems qualified by the subsequent observation that the Jury, in cases of gross negligence, "were not bound to be very exact in estimating the amount of damages;" and probably the learned Judges meant to say no more than that, in such cases, the Court would not control the discretion of the Jury, but would leave them at liberty to consider all the circumstances of the injury, and award such damages as they thought proper. See, to the same effect, Kendall v. Stone, 2 Sandf. S. C. R. 269. Tifft v. Culver, 3 Hill, 180. In Linsley v. Bushnell, 15 Conn. R. 225, which was case for an injury to the plaintiff's person, occasioned by an obstruction left in the highway by the wanton negligence of the defendant, the question was, whether the Jury, in the estimation of damages, were restricted to the loss of the plaintiff's time, and the expenses of his cure, &c., or might also allow, as part of his damages, the necessary trouble and expenses incurred in the prosecution of his remedy by action. And the Court held that these latter were fair subjects for their consideration. "The circumstances of aggravation or mitigation," said the Court, "the bodily pain; the mental anguish; the injury to the plaintiff's business and means of livelihood, past and prospective; all these, and many other circumstances may be taken into consideration by the Jury, in guiding their discretion in assessing damages for a wanton personal injury. But these are not all that go to make up the amount of damage sustained. The bill of the surgeon, and other pecuniary charges, to which the plaintiff has been necessarily subjected by the misconduct of the defendant, are equally proper subjects of consideration." And it is in express reference to the propriety of allowing the trouble and expense of the remedy, that the observation respecting vindictive damages, or smart-money, quoted by Mr. Sedgwick, seems to have been made. For the learned Judge immediately cites, in support of

right, or the breach of a duty legally due to the plaintiff. Those which necessarily result, are termed general damages,

his remark, certain authorities, which will hereafter be mentioned, not one of which warrants the broad doctrine which is now under consideration; and he concludes by quoting from one of them, with emphasis, the admission that "where an important right is in question, in an action of trespass, the Court have given damages to indemnify the party for the expense of establishing it." This is conceived to be the extent to which the law goes, in civil actions for damages, beyond the circumstances of the transaction.

The learned author further observes, that the doctrine he lays down has been fully adopted by the Supreme Court of the United States; and cites Tracy v. Swartwout, 10 Peters, R. 80. That was an action of trover against a collector of the revenue, for certain casks of syrup of sugar-cane, which the importer had offered to enter and bond at the rate of fiften per cent. ad valorem, but the collector, acting in good faith, required bond for a duty of three cents per pound. The importer refusing to do this, the goods remained in the hands of the defendant for a long time waiting the decision of the Secretary of the Treasury; who being of opinion that the lighter duty was the legal one, they were accordingly delivered up to the importer at that rate of duty; but in the mean time had become deteriorated by growing acid. The Judge of the Circuit Court instructed the Jury, that the circumstances of the dispute ought not to subject the collector to more than nominal damages; to which exceptions were taken. The sole question on this subject was whether the plaintiff was entitled to the damages he had actually sustained; and the Supreme Court held, that he was so entitled. It was in reference to this question only, that the terms exemplary and compensatory damages were used; the question whether, in any case, damages could be given by way of punishment alone, not appearing to have crossed the minds either of the Judges or the counsel.

The last case cited by the author is that of the Amiable Nancy, 3 Wheat. 546, which was a libel for a marine tort, brought by neutrals against the owners of an American privateer for illegally capturing their vessel as prize, and for plundering the goods on board. The question was, whether the owners of the privateer, not having in any respect participated in the wrong, were liable for any damages beyond the prime cost or value of the property lost, and in case of injury, for the diminution in its value, with interest thereon; and the Court held, that they were not; and accordingly rejected the claim for all such damages as rested in mere discretion. To what extent the immediate wrongdoers might have been liable, was a question not before the Court; yet it is to be noted, that, in the passing allusion which the learned Judge makes to their liability, he merely says that, in a suit against them, it might be proper to go yet further, in the shape of exemplary damages, but does not say that it would be; for his attention was not necessarily drawn to that point.

The case also of Grable v. Margrave, 3 Scam. 372, has been elsewhere