Luther v. Shaw

• Citation: 147 N.W. 18,157 Wis. 234
• Decision Date: 01 May 1914
• Docket Number: No. 90.,90.
• Parties: LUTHER v. SHAW.
• Court: Wisconsin Supreme Court

157 Wis. 234

147 N.W. 18

LUTHER

v.SHAW.

No. 90.

Supreme Court of Wisconsin.

May 1, 1914.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Julius Luther against Roy Shaw. Judgment for the plaintiff, and defendant appeals. Affirmed.Edgar L. Wood, of Milwaukee, for appellant.

Rubin & Zabel, of Milwaukee, for respondent.

TIMLIN, J.

This is an action by the father of Elsie Luther, plaintiff in the preceding case, to recover such damages as are at common law recoverable in an action nominally for loss of services of a daughter caused by her seduction and consequent sickness, etc. The jury returned a general verdict in favor of the plaintiff for $150 compensatory, and $5,000 exemplary or punitory, damages. The court, on motion, reduced the punitory damages to $1,500. The evidence was identical with that in the case of Elsie Luther against the same defendant. The rulings upon evidence were similar, and the decision in that case disposes of all the questions attempted to be raised by the defendant on this appeal, except those relating to the amount of damages. The trial court instructed the jury with reference to the measure of damages as follows: “If you find that the plaintiff in this action is entitled to recover damages, he is not only entitled to recover for the loss of his daughter's services and for the value of them, and for medical expenses of her illness which he incurred, but also for his wounded feelings and affections, his sense of shame, humiliation, and disgrace for the wrong done him in his social and family relations, and for the stain and dishonor brought on the family, the dishonor of himself and family, and the example to his other children. * * * And, if you believe that defendant's conduct and the public good require that you should assess against him, by way of punishment, damages in addition to the actual loss plaintiff has sustained, then you will assess against him a sum for punitory damages as, in your judgment, you deem just and proper and best calculated to be an example to him and to those who may be inclined to commit like offenses. And, in assessing such punitory damages, if any you deem proper to assess, you may take into consideration the financial condition of the defendant. * * * From the fact the court has instructed you you may assess punitory damages, if you deem just and proper in this case, you should not infer that you must do so. Whether you shall do so or not is left to your sound judgment, under the instructions of the court and the evidence in the case.”

The amount assessed for compensatory damages is so small as to indicate that the jury carefully computed plaintiff's pecuniary loss, and allowed nothing under this head for wounded honor or sensibilities. The case was one in which exemplary or punitory damages were permissible. The amount fixed by the jury as punitory or exemplary damages is very large. It is first argued that this indicates bias on the part of the jury, and that the verdict is therefore perverse, and should not stand for any purpose; and, second, that the exemplary damages, even as reduced by the trial court, are excessive.

[1] In actions of this kind, recovery is based upon a willful wrong. The action is founded in tort, and the instant case carries the circumstances of aggravation necessary to justify exemplary damages which are generally recoverable in such cases. Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599, 38 Am. Rep. 768;Klopfer v. Bromme, 26 Wis. 372; 4 Sutherland, Dam. (3d Ed.) § 1283; 1 Sedgwick on Dam. (9th Ed.) § 376.

[2] Where the jury are properly given such broad discretion with reference to exemplary damages, as indicated by the quoted instructions, whereby they were told they might assess against the defendant a sum which they deemed just and proper and best calculated to be an example to him and to others, such jury are entitled to accept these instructions in good faith as meaning just what they say. How, then, can it be said their verdict is perverse? They disregarded no evidence and violated no instructions in fixing these exemplary damages. Their estimate of what would be sufficient as a punishment and a deterrent and an example was very high compared with the actual damages assessed, and high from any viewpoint. But it would hardly be candid to invite them, in the language of this instruction, to fix a sum which expressed their judgment in such matter, and then charge them with bias or perversity because the measure of their abhorrence of defendant's conduct and their judgment of what would be a sufficient punishment and deterrent was represented by a larger sum of money than that which some other man or men would have allowed. There must always exist a great diversity of views upon such subjects. But because these exemplary damages rest upon such vague and unmeasurable bases the court should, and it does, exercise revisory power over such verdicts. Rogers v. Henry, 32 Wis. 327;Templeton v. Graves, 59 Wis. 95, 17 N. W. 672. It has been held, however, in a number of cases that the court will rarely interfere with the award of exemplary damages on the ground that such award is excessive. 4 Sutherland, Dam. (3d Ed.) § 1217, and cases; Bennett v. Beam, 42 Mich. 346, 4 N. W. 8, 36 Am. Rep. 442, and other cases cited in note 4, § 1281, p. 3753, 4 Sutherland, Dam., and Morgan v. Ross, 74 Mo. 318, and other cases cited in note 6, p. 3764, § 1283, 4 Sutherland, Dam., and Hartpence v. Rogers, 143 Mo. 623, 45 S. W. 650. This whole subject of exemplary or punitory damages has been heretofore a matter of much discussion, which has now considerably abated. 5 Western Law J. 193, 289; 8 Wash. Law Rep. 49; 13 Wash. Law Rep. 652; 4 Wis. Legal News, 380; 3 Am. Law J. (N. S.) 537; 4 Am. Law J. (N. S.) 61; 3 Kan. Law J. 369; 20 Am. Law Reg. (N. S.) 570; 32 Am. Law Reg. (N. S.) 517. But this court long ago refused to overrule the cases adopting and establishing the rule of exemplary damages for this state. Templeton v. Graves, 59 Wis. 95, 17 N. W. 672;Bass v. C. & N. W. Ry. Co., 42 Wis. 654, 24 Am. Rep. 437. From the doctrinaire viewpoint, and assuming as premises that damages should never exceed compensation, and that every mulct imposed as a punishment or deterrent should go into the public treasury, the award of such damages to the plaintiff in a private prosecution would seem to be illogical.

Speaking for myself only in this paragraph, I am inclined to admit...