Wirsing v. Smith

Opinion by Mk. Justice Elkin, The first and second assignments of error, as we view the case, are without merit. The first is based upon the refusal of the court to admit the introduction of testimony relating to collateral matters, not connected with the parties to the action, nor had it any relevancy to the issue, and it was properly excluded. As to the second, it may be observed, that the defendant had offered in evidence the record of his conviction [16] for a criminal offense growing out of the shooting, and followed this up by going on the stand for the purpose of ’showing that at the time of the trial of the present case he was serving out the term for which he had been sentenced, and this in mitigation of punitive damages. Under these circumstances no harm was done, nor was it reversible error to permit the plaintiff, on cross-examination, to develop all the facts shown by the record or by the testimony of defendant at the time sentence was imposed. The third and fourth assignments relate to the right of plaintiff, under the facts of the case, to recover punitive damages. It is contended that because defendant had been convicted of a criminal offense, growing out of the same acts, and was serving a term of imprisonment for his crime, punitive damages should not be allowed in the civil action. The answer is, apart from the views of text-writers on this question, of which there are many reaching different conclusions, and independently of the rule established by courts in other jurisdictions, and in this there is no uniformity, it is settled law in Pennsylvania that punitive damages may be recovered if the facts warrant their imposition, and this even in a case where there has been a conviction of a criminal offense: Portor v. Seiler, 23 Pa. 424; Cornelius v. Hambay, 150 Pa. 359; Rhodes v. Rodgers, 151 Pa. 634; Matheis v. Mazet, 164 Pa. 580. In such cases the rule is, that the record showing conviction and sentence may be offered in evidence, and considered by the jury, in mitigation of exemplary damages, and this was done in the present case. - The fifth assignment is not in proper form, does not show anything before this court to review and will not be considered. The sixth and seventh assignments complain of the refusal of the court below to grant a new trial on the ground that the verdict was unreasonable and excessive. As a rule, whether a new trial be granted or refused is a matter within the sound discretion of the court, and certainly is not sufficient ground of reversible error unless for gross abuse, and this does not appear in the case at bar. Nor are we convinced that the conditional order of the court below, after trial and verdict, complained of in the eighth assignment, would justify a reversal of the judgment entered in the present case. The [17] learned trial judge evidently followed the rule of our own cases in this respect in a well-meaning effort to have the matters in dispute between the parties finally determined. In Fleming v. Dixon, 194 Pa. 67, our Brother Brown, in passing upon a conditional order made by the court below and not accepted by defendant, said, “ the relief tendered was refused. The order of court providing for it was made for the benefit of the defendant now complaining of it, and we overrule his second assignment of error.” In Stauffer v. Beading, 206 Pa. 479, the present chief justice, in reviewing the discretionary power of courts in granting or refusing new trials, among other things, said : “ Hence it is well settled that the court may impose terms upon either or both of the parties as conditions of the grant or refusal, and the latitude allowed to the discretion of the court to this end is very great.” It is clear, therefore, that the learned court below was well within the rule of our own cases in this respect, and certainly should not be convicted of error for doing what this court has said he had the right to do in the proper exercise of his judicial discretion. The error suggested in the ninth and last specification cannot be considered, because the assignment is not in proper form and does not bring before this court anything for consideration. The circumstances under which defendant maliciously and brutally assaulted plaintiff, with the evident intention to take life, and the murderous attack having seriously and permanently disabled him, justified the court in submitting the question of punitive damages to the jury, which, was done in a careful charge defining the application of the rule. It may be that the jury took into consideration the aggravated, unwarranted and felonious character of the shooting in rendering their verdict, but this they had the right to do, and it is not for us to say that there was reversible error on the sole ground of the verdict being excessive, for if there ever was a case in which a, jury was justified in returning a large verdict, not only as compensation for the injury done, but as a punishment to the offender, this would seem to be the one. Judgment affirmed.