Dirmeyer v. O'Hern

Tbe opinion of the court was delivered by Todd, J. This is an action for damages caused by tbe alleged violent acts and conduct of the defendant, connected with and attending the execution of a writ of provisional seizure, which he (O’Hern). caused to issue against the piaiutiff. [962] After tlie institution of the suit the defendant died, and his heirs, who had accepted his succession unconditionally, were made parties. They appeared, and pleaded the general issue. The case was tried by a jury, who rendered a verdict in favor of the plaintiff for .five hundred dollars, and from the judgment thereon the defendants have appealed. The facts are these : The plaintiff leased from O’Hern a dwelling-house at the rate of $12 per month. The lease commenced on the 6th February, 1886. The rent for that month, March and April, was punctually £aid. On the 2d of June the plaintiff called on the defendant, and informed him that he had lost his situation, and would be compelled to leave his house, as he could no longer pay the rent. He offered him $8 for the rent of the previous month, and promised to pay the balance in a few days, which offer was refused. On the next day tlie plaintiff moved with his family to another residence. On the same day the defendant procured a writ of provisional seizure. He banded the writ to a constable, who refused to execute it, because O’Hern insisted on accompanying him to the plaintiff’s house, and because, as the officer stated, he knew O’Hern’s mode and manner of collecting his rents, which he (the officer) characterized as “ rough and bulldozing.” O’Hern procured the services of another officer, and went with him to the premises. He stalked into the house in advance of the officer without knocking, throwing open doors, and going from room to room. When remonstrated with by the occupant of the house (Dirmeyer, his tenant), he told him to go to h — 11, and raised his stick, quite a bludgeon, as if to strike him, when Mrs. Dirmeyer rushed between them and then he addressed her in jrrofane and obscene language He was told to leave by the officer ; he did so, but soon returned, and entered the house in the same unceremonious manner. He procured a cart and carried the furniture away. The jury by their verdict fixed the damages, caused by this outrageous conduct of O’Hern, at’ $500. It cannot well be seen how they could have found for a less sum consistently with the facts stated. The counsel for the defendant, seeks to palliate the conduct of 0’IIei;n by suggesting that it was proper for him to have accompanied the officer, in order to show him the place. It could have been found very easily by the officer without O’Hern’s assistance, as the house was numbered and on a well known street. [963] lie also urges that O’Hern was provoked to the violence shown by him, by Dirmeyer breaking a shelf or some small article of furniture, saying as he did so, that he had made it with his own hands. This was utterly insufficient to justify his rude and unfeeling conduct. Again the counsel urges that there was no proof offered that the defendants were the heirs of O’llern, and that therefore the judgment was wholly unauthorized. The motion filed alter O’Hern’s death to make parties allege that the defendants (naming them) were the heirs of ’the deceased, and had been put in possession of his estate, and asked that they he cited. They appeared and answered by a general denial, without putting at issue, by an exception the capacity in which they were sued and which was necessary if they desired to contest it. The general issue admitted their capacity, and the question could never he subsequently raised. It is also urged that the damages given by the verdict and judgment were exemplary or punitory in their character, awarded on account of an offense or quasi offense of O’Hern, and that the defendant, or his heirs, could not he responsible for the same; that they were personal to O’Hern, and the action to recover them abated at his death. There is no force in this contention. The damages were actual iu their character, although of that kind that the estimate of them is left largely, under our law, to the discretion of a jury or the court. C. C. 1934. We may well conceive that the injury, the suffering inflicted on Dirmeyer and his family by tho brutal conduct of O’lloru, was as intense and painful, or perhaps, more so, than if physical violence had been used, and he had actually belabored the man and his wife with his bludgeon. There has been great confusion of ideas which, even to some extent, is shown in our. own reports, respecting actual and exemplary or punitory damages. The former is often confounded with a pecuniary loss, and limited to such loss; and all beyond that, such as injuries physical or meutal, are classed with the latter. This is a mistake. Indeed, were the question1 au open one, we would hesitate before recognizing this element of exemplary punitory or vindictive damages, as existing in the civil law. The theory of this kind of damages, is that, after a full indemnity has been found by a jury or a court for the injury suffered, a sum in addition thereto may bo arbitrarily imposed to punish the wrong-doer, and by suck punishment set an exammple to deter others from the [964] commission of a like offense. And these additional damages, thus found, are likewise called vindictive damages, which a judge or jury may inflict under a just sense of indignation for the wrong done, and are sometimes characterized by the homely phrase of “ smart money.” It is a principle that has been borrowed from the common law, and though tacitly, and sometimes expressly, recognized in our decisions, it is really an exotic in our system. However this may be, the present court, in repeated decisions, has recognized this kind of damages as actual damages, and these decisions are supported by eminent elementary writers on the subject. Byrne vs. Gardner, 34 Ann. 6; Deslondes vs. O’Hern, 37 Ann. 881. The damages inflicted byO’Hernon the plaintiff being then actual damages, his liability for the same accrued then and there, and was transmitted to his heirs, although, both as to him and them, the measure of such damages was in futuro to be fixed by verdict and judgment. There is, however, an error in the judgment as relates to John D. Crawford, the husband of one of the heirs, who was condemned therein. He came under no liability whatever on account of this relation to one of the heirs, and besides it does not appear that he was ever cited, or that he appeared at all in the proceeding, by answer or otherwise. The judgment is erroneous, also, as to Mrs. Crawford. She was not cited conjointly with her husband, nor does it appear that she was authorized by him or the court to defend the suit. It was, therefere, nullity in this respect. There is a further error in the judgment in condemning the defendant in solido. Heirs are only bound jointly for their ancestors debts. There are four heirs made parties as legal representatives of the original defendant. The entire judgment is $500, and each defendant is only bound for his virile share thereof, $125. These several errors in the judgment must be corrected. It is, therefore, ordered adjudged, and decreed, that the judgment of the lower court be amended as follows-: v That the judgment as against John D. Crawford and his wife, Catherine O’Hern, be annulled, and the demand as to the former be rejected, and as to the latter it be dismissed as of non-suit. That the judgment as to the others, to-wit: Annie O’Hern, Wm. M. O’Hern, Matilda Breard, be reduced to the virile share of each of the total amount of said judgment, i. <?., to one hundred and twenty-five dollars, with legal interest thereon from the 23d of December, 1886, the date [965] of the rendition of the judgment in tlie lower court, and as thus amended it be affirmed, costs of appeal and of the lower court as to Mr. and Mrs. Crawford to be paid by the appellees.