Smith v. Bagwell-Opinion of Court. 5. In actions of trespass for assault and battery a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offence as well as a measure of compensation to the plaintiff. Appeal from the Circuit Court for Duval county. John E. Hartridge for Appellant. MR. JUSTICE VAN VALKENBURGH delivered the opinion of the court. This was an action brought by Bagwell against Smith for assault and battery. The cause was tried at the Duval Circuit in May, 1882, and the jury found for the plaintiff in the sum of three hundred dollars damages, besides costs. The defendant moved for a new trial, which was denied: he then brought his appeal from the judgment to this court. The errors assigned are as follows: 1. The court erred in giving the second charge asked for by the plaintiff's counsel. 2. The court erred in giving the third charge asked by the plaintiff's counsel. 3. The court erred in refusing to give the first charge as requested by defendant's counsel, viz: that in actions for damages for torts, also punishable criminally, punitive or exemplary damages are not recoverable. The court charged the jury that "a battery is an infliction of violence on the person of another." This is the second charge of the court, which is made the first ground of error in this case. It is true that such violence must be unlawful to make it such a battery as the plaintff couid recover for, but the court had immediately before, and in the very sentence preceding the one so objected to, instructed the jury as follows: "If you find from the evi Smith v. Bagwell-Opinion of Court. dence that the defendant unlawfully committed an assault and battery on the plaintiff, the plaintiff is entitled to a verdict for damages." It will not do to eliminate from the paragraphs of a charge a sentence and object to that; the whole paragraph must be taken together and stand or fall by itself. In connection with the preceding part of this charge we can see no error-the jury could not have been misled by it. The third portion of the charge, which is the ground of the second alleged error, is as follows: "Words from one person to another will not justify an assault and battery." The counsel says this portion of the charge should have been qualified by the words "merely" or "only;" words merely, or words only. We cannot see how that would have changed the meaning of the language used by the court. Words have a definite meaning; they are not connected with acts. The use of the word "merely" or "only" in the connection suggested by the counsel would not have strengthened or modified the charge, or given any new or or other light to the jury. It was not necessary for or incumbent upon the court to use either of those or any other word to make its language intelligible to the jury. The portion of the charge so excepted to was plain, explicit and to the point. The last error assigned is that the court refused to charge "that in actions for damages for torts, also punishable criminally, punitive or exemplary damages are not recoverable." The court charged the jury upon the question of damages as follows: "If you find from the evidence that the defendant did commit assault and battery as alleged in the declaration, you may, in measuring the amount of damages, estimate the loss of time and labor from the time the assault and battery was committed, and the value of his services as proved; also expenses incurred for medical and Smith v. Bagwell-Opinion of Court. surgical attention, diminished capacity to work at his trade arising from injuries received by said assault and battery; and you may give him such compensatory damages in addition for the bodily pains and suffering arising from such injury as you may think the circumstances and the evidence will warrant." We see nothing wrong in this charge of the court. The damages which the jury were to assess against the plaintiff in case they found from the evidence that he had committed the battery alleged in the declaration were compensatory-such as would compensate him for his expenses, time and for bodily pains arising from the infliction of the injury. There was no intimation upon the part of the court in this charge that the jury could or should give punitive damages or damages in the nature of a punishment. There is nothing said whereby the jury could possibly be induced to take into consideration the malice of the plaintiff, the personal indignity, the wounded feelings or public example, all of which enter into punitive damages. The evidence shows that defendant committed an aggravated battery upon the plaintiff; that the defendant struck him several times over the head with an oakwood wagon spoke about two feet long; that from the effects of such beating he was laid up for two months; that plaintiff was a wheelwright; that a good wheelwright might get from $2.50 to $3 per day; that he still suffered from the blows he received on his arm and head. The surgeon who attended plaintiff testified that he found him suffering from scalp wounds and a bruised arm, caused by blows; that he treated the wounds in the head by adhesive plaster; one of the wounds he sewed up. The arm was badly bruised. Erysipelas followed, which gave him trouble. This is very often the result of blows on the head. He attended him for two weeks and his bill was $30. Upon this evidence, the jury, after consideration and after hear Smith v. Bagwell-Opinion of Court. ing and seeing the witnesses and the parties, rendered their verdict. The defendant's counsel insists that the court erred in not charging the jury that punitive or exemplary damages were not recoverable. Whether such instructions were or were not given in this case under the circumstances attending it, and the charge given as above quoted, is of no consequence. The jury evidently found only compensatory damages; that is, "loss of time and labor from the time the assault and battery was committed, and the value of his services as proved; also expenses incurred for medical and surgical attention, diminished capacity to work at his trade arising from injuries received by said assault and battery," and "compensatory damages for the bodily pains and suffering arising from such injury." Bodily pain and suffering is a proper item of damages in such cases. "Nor is the estimate necessarily limited to the suffering which is past where the proof renders it reasonably certain that future pain and suffering is inevitable. In estimating the pecuniary loss in such cases all the consequences of the injury, future as well as past, are to be taken into consideration; and there seems to be no reason why a different rule should prevail in respect to bodily pain and suffering." Curtis vs. Rochester & Syracuse R. R. Co., 18 N. Y., 534; Ib., 20 Barb. Sup. C., 282; Ransom vs. N. Y. & Erie R. R., 15 N. Y., 415. Compensatory damages are such as arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and to these may be added bodily pain and suffering. Exemplary, vindictive or punitory damages are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but a punishment to the offender and an example to the community. Smith v. Bagwell-Opinion of Court. In this case the defendant was liable to be punished criminally for the assault and battery committed upon the plaintiff. Whether he was so punished by indictment and trial or not, we are not informed by anything in the record. The counsel for defendant below insists that to allow punitive or exemplary damages in an action of this character would be in contravention of the Constitution, which provides that no person shall be put twice in jeopardy for the same offence. We are aware that the rule in regard to such damages is different in the different States of this country, and that whether they can be legally awarded in any case is a question about which different and conflicting opinions have prevailed. In the case of Chiles vs. Drake, 2 Met.. 146, Chief-Justice Simpson, speaking for the court, says: "It will hardly be contended that a plaintiff cannot recover vindictive damages in an action for an assault and battery committed with circumstances of aggravation, although the defendant might be indicted for the same offence. The recovery in the one case is for the private injury, and in the other the punishment is inflicted for the public wrong. Vindictive damages operate, it is true, by way of punishment, but they are allowed as compensatory for the private injury complained of in the action. They are allowed because the injury has been increased by the manner it was inflicted." "Every recovery for a personal injury, with or without vindictive damages, operates in some degree as a punishment, but it is a punishment which results from the redress of a private wrong, and does not therefore violate either the meaning or spirit of the Constitution." Again the court say: "Where the element of wilful negligence, malice or oppression intervenes, the law permits the jury to give what is termed punitory, vindictive or exemplary damages; and such damages, although given to recompense the sufferer, do inflict a punishment |