Waffle v. Dillenbeck

By the Court, Campbell, J. This was an action of assault and battery, tried before me at the circuit. Among other things I charged the jury that a verdict for the plaintiff for less than $50 damages would not carry full costs, but would entitle the plaintiff to an amount of costs equal to the amount of damages; and that a verdict for fifty dollars or more would entitle the plaintiff to his full costs; and I refused to charge that in arriving at the amount of their verdict they had nothing to do with the question of costs. The charge and refusal to charge were duly excepted to by the defendant's counsel, and these exceptions raise the only question in the case. Until this time I had supposed that there was no difference of opinion on the points raised; and the practice at the circuit of instructing the jury as to the effect of their verdict in actions of torts, especially in actions of slander, libel and assault and battery, was at least general if not entirely uniform—when the judge was requested so to charge; and further, that such instructions were very often given to • the jury when not requested, where it might seem to the judge that the ends of justice required it. Statutes limiting the costs for the purpose of preventing trifling and malicious actions were passed in the reigns of Elizabeth, J ames First and Charles Second. The principal statute was passed in the [133] reign of Charles Second; and it enacted that “ In all a'ctions of trespass, assault and battery and other personal actions, wherein the judge at the trial of the cause shall not find and certify under his hand upon the hack' of the record that an assault and battery were sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaintiff’s declaration was chiefly in question, the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover or obtain more costs of suit than the damages so found shall amount unto.” In cases of assault and battery and trespass the certificate of the judge would regulate the costs; in all other personal actions the verdict alone regulated them. Our statute, with which we have to do in the present case, was formerly as follows: “ If the plaintiff in an action for assault and battery or false imprisonment, or for slanderous words or for libel, brought in the supreme court, recover fifty dollars or less, such plaintiff shall recover no more costs than damages.” (2 R. S. 613, § 6.) The revisers in their notes say that by this provision it was hoped a fruitful source of litigation might be destroyed. The code (§ 304) enlarges this class, adding other personal actions and granting full costs when the plaintiff recovers fifty dollars or over. Most of the actions enumerated and which have in all time formed an element of litigation, are the fruits of the worst passions of our nature. They are the children of anger, malice, revenge, and “ all uncharitableness.” Hence in most cases the jury have been authorized to render verdicts which may not only compensate the plaintiff for his damages sustained, but also may add thereto what is sometimes termed smart money, sometimes exemplary and sometimes punitive damages. In an early and important case in this state, and which attracted much attention at the time from the character of the parties, that of Tillotson v. Cheetham, (3 John. 56,) Chief Justice Kent told the jury that he did not accede to the doctrine that the jury ought not to punish the defendant in a civil [134] suit, for the pernicious effect which a publication of this kind was calculated to produce in society.” On a motion made to set aside the inquisition, Elisha Williams contended that “ In a private action, the party can recover only for the private wrong; he has no concern with the public offense, for which the defendant must atone on an indictment.” But the chief justice, again speaking for the court, said, “ It is too well settled in practice and is too valuable in principle to he called in question.” For more than half a century that has been settled law in this state, although from time to time efforts have been made to alter the rule, especially as to those offenses where the party is liable both to a civil action and to indictment. Where, therefore, in an action for slander, libel or assault and battery, the jury know or are told that they may give exemplary or punitive damages^ it is of vital importance that they should be informed as to the effect of their verdict on the question of costs. The jury not only render the verdict of guilty or not guilty in these quasi criminal actions, but they also pronounce the sentence, in the same breath. In a very large proportion of these actions the question of costs is the most important question in the case, and no one who has had experience on the bench can have failed to see that a full knowledge by the jury on this point is often absolutely necessary in order to enable them to render what they consider a full measure of justice to the parties. Thus in Elliott v. Brown, (2 Wend. 497,) the jury requested instruction as to what amount of damages would carry costs. The instruction was not given. When the case came up to the supreme court from the New York common pleas, where it was tried, Chief Justice Savage said: “ It is,the duty of the jury to ascertain What damages the plaintiff has sustained, atid"also how much the defendant ought to be punished; and if the jury consider the costs as part of the amount which the defendant should pay, and wish to give no greater damages than barely enough to carry costs, or. to give such a sum as will not carry costs, they have a right to [135] do so. I think, therefore, it would have been proper to have given the jury the information they wanted.” That was an action for assault and battery. In Nolton v. Moses, (3 Barb. 31,) Mr. Justice Willard, who had a large experience as a circuit judge before he came on the bench under the new constitution, says: “ It is common experience to apprise the jury as to the effect of their verdict upon the parties in respect to the question of costs) and 'the practice has been expressly and repeatedly affirmed.” The decision in Hicks v. Foster, (13 Barb. 663,) in no way conflicts with the ruling in the case before us. In that case the judge at the circuit instructed the jury “ that they had a right to take into consideration the fact that the plaintiff had been compelled to come into court in order to vindicate her character.” The law regulating costs and the question of punitive damages were not glluded to. The instruction was understood to mean that the jury might award to the plaintiff the damages which she had sustained by reason of the slander, and in addition might give compensation for all the expenses, costs and counsel fees consequent on coming into court. There was no attempt to call in question the rule, in Elliott v. Brown. Mr. Justice Marvin giving the opinion of the court says correctly, “ Elliott v. Brown, however, has no application to the question we are considering.” I think the ruling at the circuit was right, both on principle and authority. The judgment must be affirmed. [Broome General, Term, January 27, 1863. Parker, Campbell and Mason, Justices.] Judgment accordingly.