Fay v. Parker

• Decision Date: 01 December 1872
• Citation: 53 N.H. 342
• Parties: FAY & UX. v. PARKER.
• Court: New Hampshire Supreme Court

53 N.H. 342

FAY & UX. v. PARKER.

New Hampshire Supreme Court

December 1, 1872

In a civil action founded upon a tort, punishable by the criminal law, an amount of damages equal to the full compensation of the plaintiff for the injury sustained by him cannot be increased by the addition of a fine for the punishment of the defendant.

Whether, in any civil action, the plaintiff may recover exemplary, punitory, or vindictive damages, qucere.

TRESPASS, by Robert C. Fay & wife against O. A. Parker, for an assault and battery upon Mrs. Fay. Verdict for the plaintiffs, and motion of the defendant to set it aside.

The court instructed the jury, that, if they found the defendant guilty, they should find the actual damages, which would include compensation for all injury to the feelings as well as to the person of Mrs. Fay—compensation for her mental as well as her physical sufferings, caused by the assault; that, if the assault was accompanied by any act or word of indecency, outrage, insult, or indignity, which injured her feelings, compensation therefor should be included in the actual damages; and that they might also give exemplary damages which would be punitive and not compensatory, if they thought it a case in which an example ought to be made for the protection of the public. To these instructions the defendant excepted.

The jury found a verdict for the plaintiffs, and assessed the actual damages at $150, and the exemplary damages at $331.67.

Duncan and Blaisdell for the plaintiffs.

C. W. & E. D. Rand and Young for the defendant.

The case was decided March, 1873, by SARGENT, C. J., FOSTER, DOE, LADD, and SMITH, J. J. HIBBARD, J., not having heard the arguments in the ease, took no part in the decision.

FOSTER, J. A synonym of damage (when applied to a person sustaining an injury) is loss. Loss is the generic term. Damage is a species of loss. Loss signifies the act of losing, or the thing lost. Damage—in French, dommage; Latin, damnum, from demo, to take away—signifies the thing taken away,—the lost thing, which a party is entitled to have restored to him so that he may be made whole again.

Damage, we remarked, is derived from demo, to take away; and therefore it is not derived from punio, to punish.

When used to signify the money which a plaintiff ought to recover, damage is never, nor in any sense, synonymous with nor collateral to the terms example, fine, penalty, punishment, revenge, discipline, or chastisement.

Loss or damage sustained—the thing taken away—may be supplied by compensation; but the loss, damage, or thing taken away cannot be supplied or restored by the vindictive punishment of him who has occasioned the loss or damage.

It is just as easy to call things by their right names as by wrong names, and it is better to be correct than careless in our speech.

The defendant's exception presents the question whether punitive damages (so called, by a perversion of language and ideas so ancient and so common as seldom to attract attention), that is to say, damages in the nature of, and intended as, a penalty or punishment,—and exemplary damages, that is to say (if people will persist in saying it), damages in the nature of, and intended as, an example for the protection of the public against offences similar to that for which such damages are awarded (inflicted), may be given to the plaintiff in a civil action resulting from an act for which the defendant may be indicted and punished by force of the criminal law.

In considering this question, we must regard the terms exemplary, vindictive, and punitive or punitory, as meaning the same thing; such being, doubtless, the acceptation of the language of the courts generally in cases where these terms are employed with reference to damages in a civil action.

In so far as the settlement of this question depends upon the weight of authority, it will be appropriate and convenient to direct our attention, in the first place, to those decisions of the courts of this state wherein the subject of exemplary, vindictive, or punitive damages has been considered. The most prominent cases of this character are twenty in number. We will refer to them in chronological order.

I. Sanborn v. Neilson, 4 N. H. 501, A. D. 1828. This was an action for criminal conversation with the plaintiff's wife,—an offence then punishable by fine, imprisonment, and whipping, not exceeding thirty stripes. Act of Feb. 15, 1791.

Upon the trial, the jury were instructed that "if they found for the plaintiff, he was entitled to recover damages to the extent of the injury sustained; that the grounds on which damages were to be given were wounded feelings, disgrace, the loss of the assistance and society of the wife, and the introduction of spurious children into his family to be by him maintained; and that in estimating the damages, they should look not only to the character and conduct of the plaintiff and his wife to see what such a husband ought to recover for criminal conversation with such a wife, but to the conduct of the defendant, in order to determine what a person who had conducted as he had done ought to pay."

&QUOTRICHARDSON, C. J." "After an attentive examination of the subject, we see nothing in those directions which we think ought to have been otherwise."

It does not appear very clearly what the court did see in those instructions. If it is to be understood that the jury were empowered to give damages beyond compensation, and purely as a punishment, the case would sustain the position of the plaintiffs here; otherwise, not. But when taken in view of the context, we fail to see any purpose on the part of the presiding judge to give the words such meaning. The jury were instructed to look to "the character and conduct of the plaintiff and his wife to see what such a husband ought to recover, and to the conduct of the defendant, in order to determine what a person who had so conducted ought to pay."

There is no suggestion of payment, otherwise than as compensation for the wounded feelings, disgrace, &c., which the husband has sustained. Nothing is said about vindictive, exemplary, or punitive damages; and the authority of Bul. N. P. 27, referred to by the very learned chief justice in support of the approval by the court of these instructions, contains no reference to any damages in such a case other than such as may well be regarded as strictly compensatory.

Sanborn v. Neilson is frequently cited by the courts and text-writers who oppose the doctrine of punitive damages in cases subject to the criminal law.

II. In Whipple v. Walpole, 10 N. H. 130, A. D. 1839, the court recognize the principal of punitory damages in torts aggravated by malicious conduct, and apply it to the case of negligence on the part of a town relative to the repair of its highways. The only cases cited by WILCOX, J., are Huckle v. Money, 2 Wils. 205, Tullidge v. Wade, 3 Wils. 18, and Tillotson v. Cheetham, 3 Johns. 56.

Concerning these three cases, very often cited in the books as authority for the position assumed here by the plaintiffs, it may be confidently asserted that only the most superficial examination would account for the use of those cases, or either of them, for any such purpose. They are all substantially alike in principle. In each of them, the injuries inflicted were such as to call for damages of a compensatory character purely, but aggravated by the peculiar circumstances of the parties and the occasion; and in the latter, the ground of damages is expressly limited to the degree of injury to the. plaintiff in his private feelings and his official character.

It would be somewhat difficult to gather up the fragments of this exploded case,—Whipple v. Walpole. As an authority for the application of the doctrine of punitive or exemplary damages to the case of towns and highways, it is expressly overruled in the recent case of Woodman v. Nottingham, 49 N. H. 387.

III. Chesley v. Chesley, 10 N. H. 327, A. D. 1839:—

IV. Greenleaf v. McColley, 14 N. H. 303, A. D. 1843, were assumpsit founded on a breach of promise of marriage. Both cases exhibited gross insult on the part of the defendant, and other "circumstances of aggravation and contumely." The subject of exemplary or punitive damages was not suggested, but the circumstances of the defendant's conduct were recognized as tending to aggravate the damages which the plaintiff had sustained.

V. Merrill v. Peaslee, 17 N. H. 540, A. D. 1845, was case for slander. GILCHRIST, J., said that evidence of actionable words, not stated in the declaration, may be admitted to show the malice of the defendant. "Undoubtedly, damages could not, in strictness, be given for these words; but, as the malice was a material part of the plaintiff's case, it would be absurd to say that the quantum of damages should not be affected by such evidence, introduced to prove it."

VI. Davidson v. Goodall, 18 N. H. 423, A. D. 1846, was case for seduction, and has been cited as an authority in support of exemplary damages, to an extent beyond compensation.

The jury were instructed that if the defendant resorted to fraud and deception to accomplish his purpose, they were not bound to limit the damages to the exact amount of the value of the girl's services, but might assess such further sum as would compensate the plaintiff (her cousin and master, in loco parentis) for his wounded and mortified feelings occasioned by the act, and such as would tend to check the commission of such offences.

In delivering the judgment of the court, GILCHRIST, J., remarks that he is unable to see any sufficient objection to the directions; and adds,—"It is hardly necessary to say that exemplary damages may be given in this action, since such damages are the end for which it is ordinarily brought." He refers to the anomalous character of the principle regulating the damages in suits of this character, by which courts and juries have undertaken to render substantial justice, without precise conformity to any...