Stopp v. Smith

The opinion of the court was delivered, by Thompson, C. J. We regard the first and principal assignment of error as conclusively ruled by the case of Good v. Mylin, 8 Barr 51. It was there held, expressly overruling Wilt v. Vickers, 8 Watts 227, and Rogers v. Fales, 5 Barr 159, “ that it was error to instruct the jury in cases of tort to include in their verdict damages to compensate the plaintiff for the injury actually sustained and for the trouble and expense of establishing his right.” In the case in hand the instruction was similar. “ If you are satisfied that a trespass rvas committed, you are warranted in allowing the plaintiff, as damages, a reasonable compensation for his necessary expenses in carrying on this suit, together with counsel fees.” So to charge was to forget that only such damages could [287] be recovered as arose out of tbe injury, and not to allow them as a consequence of bringing the suit. This was wrong in logic as well as in law. It is true the learned judge below had a show of support in the case of Barnett v. Reed, 1 P. F. Smith 190. But the assent to the charge of the court below there, which embraces it, had reference doubtless to other distinctions in regard to damages arising in the case, rather than to a restitution of the principle exploded in Good v. Mylin, which like it, was also an action on the case. Adhering to the rule of the case of Good v. Mylin, we hold the court erred in the instructions referred to, and the judgment must be reversed. The other two assignments of error need not be noticed, as they are predicated of that which was not proper, to go to the jury for any legal purpose in the case. We cannot help the defendant in error by any of the modes suggested, excepting we might, perhaps, by expressing the hope that he will not litigate this very small cause of controversy further; but that is for him to say. Judgment reversed, and venire de novo awarded.