Mayer v. Frobe

CourtSupreme Court of West Virginia
Writing for the CourtDENT
Citation40 W.Va. 246,22 S.E. 58
Decision Date27 March 1895
PartiesMAYER. v. FROBE et al.

22 S.E. 58
40 W.Va.
246

MAYER.
v.
FROBE et al.

Supreme Court of Appeals of West Virginia.

March 27, 1895.


Intoxicating Liqcoks?/span>Civil Action for Wrongful Sale?/span>Damages.

1. The common-law definition of the term "exemplary damages" is damages inflicted by way of punishment upon a wrongdoer as a warning to him and others to prevent a repetition or commission of similar wrongs.

2. The term "exemplary damages, " in section 20, c. 29, Acts 1887, is used according to its common-law definition, and cannot he otherwise construed without extrajudicial interference with a plain legislative enactment.

3. The first and second syllabi of Pegram v. Stortz, 6 S. E. 485, 31 W. Va. 220. and the first syllabus of Beck v. Thompson, 7 S. E. 447. 31 W. Va. 459, in so far as they hold that exemplary damages, in a proper case, cannot be inflicted by way of punishment in a civil suit upon a wrongdoer, are hereby disapproved and overruled.

4. In actions of tort, where gross fraud, malice, oppression, oi wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms heing synonymous.

(Syllabus by the Court.)

Error to circuit court, Ohio county.

Action by Nancy C. Mayer against George A. Probe and Louis P. Probe, partners. Plaintiff had judgment, and Louis P. Probe, as surviving partner, brings error. Affirmed.

B. B. Dovener, for plaintiff in error.

W. W. Arnett and Erskine & Allison, for defendant in error.

DENT, J. Nancy C. Mayer, plaintiff, on the 23d day of May, 1893, instituted her suit in the circuit court of Ohio county against George A. Probe & Son to recover damages for the unlawful sales of intoxicating liquors to her husband, Carl Mayer, by which she was injured in her means of support, which resulted In a judgment for $750, upon a verdict of a jury. Prom this judgment the surviving defendant obtained a writ of error, and relies on the following assignment: "First. The court erred in overruling defendant's demurrer to plaintiff's declaration. Second. The court erred in refusing to set aside the verdict of the jury, and to grant a new trial. (See defendant's bill of exceptions No. 1.) Third. The court erred in giving, at the request of the plaintiff, her instructions numbered, respectively, No. 1 and 2, as set out in defendant's bill of exceptions No. 2. Fourth. The court erred in refusing to give, at the request of the defendant, his instructions numbered 1 and 2, as set out in defendant's bill of exceptions No. 3. Fifth. The court erred in refusing to give, as requested, instructions to the jury, for defendant, numbered, respectively, Nos. 3 and 4, and in giving modifications of same, as set out in defendant's bill of exceptions No. 4. Sixth. The court erred in allowing and permitting testimony, as well as refusing to permit certain testimony, to be given to, heard, and considered by the jury, as shown and set out in defendant's bills of exceptions numbered 1, 5, 6, 7, 8, and 9, respectively. And for other reasons apparent on the face of the record."

The first assignment appears to be waived in the argument, and, as there is no essential omission or defect of form in the declaration, the demurrer thereto was properly overruled. Nine bills of exception appear in the record, while the orders of the court only refer to and note the filing of one. It is a stare decisis rule of this court that a bill of

[22 S.E. 59]

exceptions copied into the record, when there is no order filing the same, is not a true part of the record, and will not be considered. Pegrain v. Stortz, 31 W. Va. 220, 6 S. E. 485, and authorities there cited. Hence eight of these bills of exceptions must be disregarded, while the first, and the only one which can be presumed to be a part of the record, is defective, in that the evidence is not incorporated in it. Elliott, App. Proc. § 821, 822. As to the eight extra bills of exception, it is sufficient to say that all the matters therein contained, or questions thereby raised, which are not purely technical and trivial, are included in the motion for a new trial; and in determining this the law must settle all or any of the questions raised as to any prejudicial ruling of the circuit court in so far as the defendant is concerned, and for this reason the failure to have his bills of exceptions properly made a part of the record will not prevent a fair determination of the case, the defects in the bill filed being overlooked, that the important questions of law raised thereby may be judicially determined and settled. Among the defects pointed out and not here passed upon is the failure to designate specifically the grounds relied on in the motion for a new trial. Gregory's Adm'r v. Railroad Co., 37 W. Va. 010, 16 S. E. 819; Elliott, App. Proc. §§ 827-895, inclusive. Proceeding with the examination of the merits of this case, at the very threshold of its investigation, the question presents itself for determination whether this court, as to the matter of exemplary damages, will be controlled by the case of Peg-ram v. Stortz, 31 W. Va. 220, 6 S. E. 485, followed by Beck v. Thompson, 31 W. Va. 459, 7 S. E. 447, or will be governed by the the law as settled beyond controversy by the great bulk of English and American authorities, including the supreme court of the United States. In the eighth edition of Sedgwick on Damages, revised and issued since the case of Pegram v. Stortz, the law is stated as follows, to wit: "In actions of tort, when gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant, and hold him up as an example to the community." 1 Sedg. Dam. (8th Ed.) § 347. "Considered as strictly punitory, the damages are for the punishment of the private tort, not for the public crime." Id. § 353. "Upon the whole, the doctrine is to be supported (except in those few jurisdictions which have repudiated it) mainly on the grounds of authority and convenience." Id. § 354. The true doctrine on this subject, succinctly stated, and which should be generally received and strictly adhered to, is contained in the opinion of Justice Gray in the case of Railway Co. v. Prentice, decided Jan. 3, 1893, and reported in 147 U. S. 101, 13 Sup. Ct. 261: "In this court the doctrine is well settled that in actions of tort the jury, in Addition to the sum awarded by way of compensation for the plaintiff's injury, may award exemplary, punitive, or vindictive damages, sometimes called 'smart money, ' If the defendant has acted wantonly or oppressively, or with such mance as implies a spirit of mischief or criminal indifference to civil obligations. But such guilty intention on the part of the defendant is required in order to charge him with exemplary or punitive damages." The Amiable Nancy, 3 Wheat. 546, 558, 559; Day v. Woodworth, 13 How. 363, 371; Railroad Co. v. Quigley, 21 How. 202, 213, 214; Railway Co. v. Ames, 91 U. S. 489, 493, 495; Railway Co. v. Humes, 115 U. S. 512, 521, 6 Sup. Ct 110; Barry v. Edmunds, 116 U. S. 550, 562, 563, 6 Sup. Ct. 501; Railway v. Harris, 122 U. S. 597, 609, 610, 7 Sup. Ct. 1286; Railway Go. v. Beckwith, 129 U. S. 26, 36, 9 Sup. Ct. 207. "Exemplary or punitive damages being awarded not by way of compensation to the sufferer, but by way of punishment of the offender and as a warning to others." In the well-considered case of Pegram v. Stortz the supreme court of this state, instead of following the hard-beaten path as clearly indicated by the decided weight of authority reaching beyond the memory of man into an unsearchable antiquity, and seeking to discover the underlying reason therefor, because the law appeared to their minds illogical, heroically assumed the responsibility, and endeavored to dam up the vast, increasing stream of judicial opinion, and turn into a new and untried channel. But this attempt, however meritorious, has utterly failed of its purpose beyond our own borders, and within it has only served to produce perplexity and confusion, without any benefit, public or private, except to protect lawbreakers and wrongdoers from the just consequences of their illegal and wrongful acts.

Judge Green, in his lengthy opinion, concurred in by his associates, in line with the arguments of other dissenters from the established doctrine, relies on three principal objections to show that the doctrine of exemplary or punitive damages as received and acted on by the vast majority of judicial tribunals of last resort was opposed to reason, and therefore illogical and unjustifiable: (1) That the form of the writ, excluding the very idea of punishment, does not justify or permit the recovery of any damages other than compensatory; (2) that to allow the assessment of punitive damages in a civil suit is unconstitutional, in that it permits a defendant to be punished twice for the same offense; (3) that it is unjust to inflict a pecuniary punishment on a defendant, and donate It to the plaintiff instead of the state; there being no good reason, as he maintains, in allowing the plaintiff anything beyond a just compensation for injuries sustained, including mental anguish.

The first objection is technical, trivial, and wholly untenable; for the writ covers, and

6O

the plaintiff sues for, all such damages as the law may award. Be they compensatory or punitive or both, they are his legal damages. Blackstone defines "damages" to be "a compensation and satisfaction for an injury sustained." 2 Bl. Comm. 438. A very ancient rule permitted a plaintiff to fix the amount of damages that would satisfy him for the wrong done. 1 Sedg. Dam. § 23. In almost all actions for a willful or wanton wrong to person, property, or reputation it is more a question of satisfaction than of compensation that is...

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120 practice notes
  • Jordan v. Jenkins, No. 19-0890
    • United States
    • Supreme Court of West Virginia
    • June 15, 2021
    ...to expedition and economy[.]" W. Va. R. Civ. P. 42(a). See State ex rel. Tinsman v. Hott , 188 W. Va. 349, 424 S.E.2d 584 (1992).26 40 W. Va. 246, 22 S.E. 58 (1895).27 Requiring "a preponderance of the evidence" standard of proof was consistent with the standard of proof required in most ci......
  • CSX Transp., Inc. v. Smith, No. 11–0694.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2012
    ...evaluate whether the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), and its progeny. If a punitive damage award was justified, the court must then examine the amount of the award pursuant......
  • Cook v. Heck's Inc., No. 16538
    • United States
    • Supreme Court of West Virginia
    • April 4, 1986
    ...enactment authorizes it, the jury may assess exemplary, punitive or vindictive damages; ...' Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895)." Syl. pt. 1, Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 Page 455 James M. Cagle, Charles R. Garten, Charleston, for appe......
  • JWCF, LP v. Farruggia, No. 12–0389.
    • United States
    • Supreme Court of West Virginia
    • December 27, 2013
    ...authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.” Syl. Pt. 4, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). 8. “When this Court, or a trial court, reviews an award of punitive damages, the court must first evaluate whether the c......
  • Request a trial to view additional results
120 cases
  • Jordan v. Jenkins, No. 19-0890
    • United States
    • Supreme Court of West Virginia
    • June 15, 2021
    ...to expedition and economy[.]" W. Va. R. Civ. P. 42(a). See State ex rel. Tinsman v. Hott , 188 W. Va. 349, 424 S.E.2d 584 (1992).26 40 W. Va. 246, 22 S.E. 58 (1895).27 Requiring "a preponderance of the evidence" standard of proof was consistent with the standard of proof required in most ci......
  • CSX Transp., Inc. v. Smith, No. 11–0694.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2012
    ...evaluate whether the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), and its progeny. If a punitive damage award was justified, the court must then examine the amount of the award pursuant......
  • Cook v. Heck's Inc., No. 16538
    • United States
    • Supreme Court of West Virginia
    • April 4, 1986
    ...enactment authorizes it, the jury may assess exemplary, punitive or vindictive damages; ...' Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895)." Syl. pt. 1, Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 Page 455 James M. Cagle, Charles R. Garten, Charleston, for appe......
  • JWCF, LP v. Farruggia, No. 12–0389.
    • United States
    • Supreme Court of West Virginia
    • December 27, 2013
    ...authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.” Syl. Pt. 4, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). 8. “When this Court, or a trial court, reviews an award of punitive damages, the court must first evaluate whether the c......
  • Request a trial to view additional results

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