Flanagan v. Womack

• Decision Date: 16 November 1880
• Docket Number: Case No. 813.
• Citation: 54 Tex. 45
• Court: Texas Supreme Court
• Parties: J. W. FLANAGAN v. J. W. WOMACK & GREEN P. PERRY.

54 Tex. 45

J. W. FLANAGAN

v.J. W. WOMACK & GREEN P. PERRY.

Case No. 813.

Supreme Court of Texas.

Nov. 16, 1880.

APPEAL from Gregg. Tried below before the Hon. John C. Robertson.

The opinion states the case.

H. McKay and T. M. Campbell, for appellant.

Taylor & Morrison and McCord & Duncan, for appellees.

BONNER, ASSOCIATE JUSTICE.

This is a civil action for damages, actual and exemplary, brought by appellant Flanagan against appellees Womack and Perry, for an alleged assault and battery committed by them upon him. In the opinion of the presiding judge, there not being sufficient testimony against Perry, the jury were instructed to return a verdict for him. There was a verdict and judgment of one dollar actual damages against defendant Womack.

Among other defenses, Womack pleaded that on indictment for the same offense he had been convicted and a fine of $100, besides costs of suit, adjudged against him in the county court, and which he had paid. A demurrer to this plea was overruled, testimony was admitted to sustain it, and the jury instructed that they might consider it in mitigation but not in bar of the claim for exemplary damages.

This action of the court is assigned as error and presents the most important question in the case.

The doctrine upon which the learned judge below doubtless acted in overruling the demurrer and admitting the testimony, has been the subject of great diversity of opinion and discussion among judges and jurists. If it were now an open question in this court, the individual opinion of the writer would be, that it was not well founded in principle, and that there was error in the judgment of the court.

It is perhaps due myself that I very briefly give the reasons for this belief.

The doctrine of exemplary damages doubtless originated from those cases in which a sense of justice to the injured party demanded that more compensation should be given him than could be allowed by any defined strict legal rule for the measure of damages. Frequently the mere physical injury sustained, and which ordinarily is the test of actual damages, would of itself be comparatively insufficient, but the outrage upon the feelings--the ordinary test of what is now usually called exemplary, vindictive or punitory damages-- would be of such gross character or under such indignant circumstances as should require ample reparation from the offender, but which could not be referred to any fixed primary standard. Hence this character of damage was, in a great degree, necessarily left to the discretion of the jury trying the particular case. Indulgence was extended by the courts to such verdicts, as they tended to prevent breaches of the peace, and to encourage, by a resort to the law of the land, the settlement of difficulties which otherwise might have ended in personal conflicts. To this extent the public also was interested.

This indirect result to the public good, led some courts into the error of assuming as one of the grounds why such damages should be allowed at the suit of a private party, that it was intended as a public punishment to the offender, thus making that an active cause which originally was but a passive result, and in this way converting private recompense into public punishment.

I do not doubt the propriety of allowing full compensation to the injured party for both that damage which can be reduced to a reasonably fixed money standard, usually called actual damages, and also for that damage which should be recovered, but which cannot, in the nature of things, be determined by any such standard, but which must be left to the sound discretion of the juries and courts of the country, and which are properly included under what is now called exemplary damages. Such damages have received the approval of the courts of last resort of at least twenty-nine states of the Union, including this state, and of the supreme court of the United States. Field on Damages, note 2, p. 23.

The difficulty has arisen in adding an improper ground for such damages-- punishment instead of recompense; thus opening too wide the door for unreasonable verdicts by juries in civil suits, there not being with us in such cases, as under the Criminal Code, any limitation upon the amount of the verdict which may be found.

Punishment for offenses should be inflicted only by public prosecution in due course of the law of the land, under those safeguards which are “rooted and grounded in the maxims of the common law, and guaranteed by the constitution of our political government.”

If such damages are allowed as recompense only, and not as punishment, then we avoid the illegality and hardship of inflicting a double punishment for the same offense.

The criminal prosecution is a suit between the government and the defendant, to which the plaintiff in the civil action is not a party, and in which he has no voice. If, in the opinion of the jury trying the civil action, the conviction and fine in the criminal prosecution was a sufficient punishment, then the plaintiff, so far as regards his exemplary damage as a recompense, has been deprived of his just rights without ever having had his day in court.

The only consistent theory upon which the judgment in the criminal prosecution can be admitted in mitigation of damages in the civil action is, that, by a fiction of the law, the plaintiff in the latter represents the public, and that to this extent the two suits are considered as between the same parties, and that the fine in the one should decrease the amount of the judgment in the other--a fiction which, as above shown, may work a great hardship on the plaintiff.

This testimony is admitted solely for the benefit of the defendant, not the public, and it is not perceived on principle, if such evidence can be admitted in mitigation, why it should not also be admitted in bar; or why it would not logically follow, that if the defendant had been acquitted instead of having been convicted, he could not plead this former acquittal in bar; or, as the rights of the parties should be mutual, why, if the civil suit had been first tried and judgment rendered against the defendant, this should not be a mitigation or bar to the criminal prosecution. That such should be the rule in mitigation, if not in bar, in those tribunals where the injured party, as private prosecutor, receives part of the fine, would seem proper; but to permit it in this state, where the fine is paid to the government and not to the prosecutor, would in many cases virtually supersede the criminal law.

Thus considered, the testimony of the former conviction and fine would not have been admissible. Hadley v. Watson, 45 Vt., 289 (1873); S. C., 12 Am. R., 97; Reed v. Kelly, 4...