Brown v. Evans

Decision Date05 February 1883
Citation17 F. 912
PartiesBROWN v. EVANS. [1]
CourtU.S. District Court — District of Nevada

R. M Clarke, for the motion.

R. H Lindsey and W. E. F. Deal, contra.

SABIN J.

This action was brought by plaintiff in the proper state court (and afterwards removed to this court) to recover from defendant the sum of $20,000 damages alleged to have been sustained by plaintiff by reason of a most brutal unprovoked, and wanton assault and battery committed by defendant upon plaintiff, March 30, 1881, at the town of Reno, in the county of Washoe, state of Nevada, accompanied by acts of great atrocity, and nearly culminating in the death of plaintiff.

The defendant pleaded a qualified denial and justification of the assault, but it is very difficult, in fact impossible, to reconcile the verified answer of the defendant with his testimony given in his own behalf upon the trial of the case. The jury found for the plaintiff in the sum of $8,150.87, and judgment was duly entered upon the verdict for said sum and costs. Defendant now moves the court to set aside that verdict and judgment, and that a new trial of the action be granted. I have carefully examined the authorities attainable, cited by counsel on either side, and many not cited in their briefs or in this opinion.

The first question that meets us in the discussion of this motion is this: Was and is this a case wherein exemplary, punitive or vindictive damages can be allowed or assessed by the jury against the defendant? The terms 'exemplary, punitive, or vindictive damages' are synonymous in their legal signification. This question was held in the affirmative by the court upon the trial of the case. If the court was in error on this point, a new trial might be granted, since, in that case, the action was tried upon a wrong theory of the law applicable thereto, and thus improper evidence may have been submitted to the jury.

It may be laid down as a general proposition of law, elementary in character, that in all this class of cases of personal torts, 'vindictive actions,' such as assault and battery, slander, libel, seduction, crim. con., malicious arrests and prosecutions, seizure of goods, etc., where the elements of fraud, malice, gross negligence, cruelty, oppression, brutality, or wantonness intervene, exemplary or punitive damages may be recovered from the defendant.

The authorities supporting this position are too numerous to cite or review here. An examination of a few of the authorities will establish the fact that this has been the settled law of this country for more than 100 years, and that such is now the law in nearly all the states of the Union. Nebraska, I believe, is a solitary exception to the rule. The supreme court of that state holds that under no circumstances can exemplary damages be recovered. The English cases run much further back in point of time, and the American cases are generally in harmony with them.

I am able to refer to only a few of the cases examined on this point, but it is believed that the following cases fully establish the doctrine of exemplary damages in proper cases, and are fair exponents of the great body of American law on this subject: See 1 Sedg.Dam. 53, 174; 2 Sedg.Dam. 323, and note; also pp. 335-344; 13 How. 371; 91 U.S. 493; 3 McLean, C.C. 23; 21 Iowa, 379; 4 Duer, 247; 5 Watts, 375; 13 Iowa, 92; 27 Amer.Dec. 685, and notes; 1 Head, 336; 43 Me. 163; 64 N.Y. 440; 24 Wis. 292; 81 Ill. 70; 2 Metc. (Ky.) 146; 6 Tex. 266; 27 Miss. 68; 39 N.H. 576; 43 Miss. 598; 51 Miss. 103; 44 Wis. 282; 3 Scam. 372; 4 Wis. 67; 99 Mass. 552; 114 Mass. 518; 2 Cal. 54; 40 Cal. 578; 45 Cal. 337; 10 Ohio St. 292; 27 Ohio St. 277; 48 Mo. 152; Field, Dam. 70; 2 Greenl.Ev. § 267.

In 3 Scam. 373, the court says: 'In vindictive actions * * * the jury are always permitted to give damages, for the double purpose of setting an example and of punishing the wrong-doer. ' And such is the doctrine of the cases above cited, and of many more examined and not cited.

There was no error in the ruling of the court that this was a case in which exemplary damages might be recovered and should be allowed.

I now proceed to consider the grounds urged for a new trial seriatim, as stated by defendant's counsel in his brief.

1. That the court erred in admitting evidence of defendant's wealth.

In this ruling there was no error, this being a vindictive action, in which exemplary damages might be recovered. See 49 N.H. 358-370; Field, Dam. 78, 127, 128, 479, 554, and note; 2 Greenl.Ev. § 269; 27 Miss. 68, 85, 86; 52 Me. 502; 15 Wis. 240; 5 Watts, 375; 44 Wis. 282, 291-294; 4 Duer, 247, 262; 13 Iowa, 92; 4 Wis. 67; 3 Scam. 372; 6 Conn. 24, 27; 48 Mo. 152; 27 Ohio St. 292; 2 Sedg.Dam. 323, and note, 331; 20 Ill. 115.

The reason of the rule is obvious. If exemplary damages may be given by way of punishment for an outrageous act, the jury must know something, at least, of the defendant's ability to respond in damages, since what would be a severe verdict to one with limited means might be but a trifle to one of large means, and the rule utterly fail.

2. 'The act complained of, and out of which the damages arose, is a misdemeanor, punishable by fine and imprisonment, and punitive damages cannot be recovered.'

This point is not well taken. The fact that a party committing a flagrant wrong upon another subjects himself to criminal prosecution and punishment, is no ground for withholding exemplary damages in a civil action for the same act. See 6 Tex. 266; 21 Iowa, 385, 388-391; 26 Iowa, 185; 44 Wis. 282; 1 Head, 336; 27 Amer.Dec.

685, and note, 687; 4 Duer, 247, 265; 2 Sedg.Dam. 330, and note, 332; 2 Cal. 54; 2 Metc. (Ky.) 152; 18 Mo. 71; 6 Hill, 466; 1 Bish.Crim.Law, §§ 264, 265, and cases cited; Id. Secs. 265, 266, and cases cited, 980-988; 14 How. 17-20. The clause of the constitution of this state which is invoked to shield defendant from the penalty of exemplary damages reads as follows: 'No person shall be subject to be twice put in jeopardy for the same offense.'

The constitution of the United States contains a similar provision. Now, the term 'jeopardy,' as used in the constitution, has a fixed legal signification, and is always used in connection with criminal proceedings. 1 Abb.Law Dict. 650; 3 Greenl.Ev. § 37; 1 Bish.Crim.Law, § 1012, and as above cited.

In 44 Wis. 287, the court, in discussing this point in a case very similar to the one at bar, by RYAN, C.J., says:

'It would have been no subject of regret to the court if the obligation of the constitution called upon it to abridge the application of the rule. But the court is unable to hold that the constitutional provision has any controlling bearing on the questions.
'The constitution only re-enacts what was the general if not literally universal rule at common law. * * * The word 'jeopardy' is therefore used in the constitution in its defined technical sense at the common law; and in this use it is applied only to strictly criminal prosecution by indictment, information, or otherwise. * * *
'The cases generally hold that the rule in criminal cases, that one shall not twice be put in jeopardy, implies more than the bar of a judgment to an action for the same cause. But no case is known where a conviction upon an indictment has been held a bar to a civil action for damages growing out of the same act; a fortiori, none in which a recovery in a civil action has been held a bar to an indictment for the same act. * * * It is manifest that judgment for the one is not a bar to the other.'

If this objection has any weight or force, it has it by virtue of this constitutional provision above cited. It has no other support. Tested by the rules of law applicable to this matter of jeopardy, the objection will be found to be without merit or support. A person may, by one act, commit two offenses: one, against the civil law, by the invasion of a private personal right; the other, against the state, in the violation of its criminal law; and he may be prosecuted for each offense, and yet not twice criminally punished for the same offense. In the one case the offending party makes reparation in damages for the civil wrong done to the person injured thereby; in the other, the party is punished by the state for an offense against it in the violation of its law; and a judgment in the one case is no bar to a prosecution in the other. In like manner a person may, by one act, offend against two sovereignties. His act may be an offense against the laws of a state and also against the laws of the United States, and he may be prosecuted and punished either by the state whose laws he has violated, or by the United States, or by both, for his offense against each. 5 How. 432; 14 How. 20; 1 Bish.Crim.Law, §§ 986, 1060.

I am aware that it has been held in a few cases that exemplary damages cannot be recovered in cases of personal torts, where the defendant is liable to a criminal prosecution for the same act. See 5 Ind. 332; 14 Ind. 479; 20 Ind. 192; 4 Cush. 273. In 53 N.H. 342, the subject is discussed, but not decided.

Defendant further insists that the court erred in admitting evidence of plaintiff's health prior to the assault and subsequent thereto, and to defendant's great and superior strength. There was no error in this. The jury was entitled to know the whole transaction. It could not do justice in any case without such knowledge. 2 Sedg.Dam. 330, note 1; Field, Dam. 474. It was necessary that the jury should know the condition of plaintiff's health prior to the assault as well as subsequent thereto.

3. 'The court erred in excluding evidence of defendant's good character. ' There was no error in this ruling of the court. The character of defendant was not in issue directly or indirectly. The issue was,...

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