Rippey v. Miller
| Decision Date | 31 August 1850 |
| Citation | 11 Ired. 247,33 N.C. 247 |
| Court | North Carolina Supreme Court |
| Parties | EDWARD RIPPEY v. W. J. T. MILLER, ADM'R., . |
OPINION TEXT STARTS HERE
In an action against the represen tative of a deceased, who had committed a trespass on the property of the plaintiff, the plaintiff cannot, no matter however aggravated the trespass may have been, recover vindictive damages.
Appeal from the Superior Court of Law of Cleaveland County, at the Spring Term 1850, his Honor Judge CALDWELL presiding.
The action is trespass quare clausum fregit, and was tried on the general issue. The declaration and evidence were of an entry on the plaintiff's land by the defendant's testator, secretly in the night, and maliciously burning a cotton gin-house and divers articles therein, and killing a horse; and evidence was further given for the plaintiff, that the house and other property were of the value of $750. The counsel for the defendant, thereupon insisted before the jury, that he, being an executor, was liable only for damages to the value of the property destroyed. But. in summing up, his Honor instructed the jury, that where a trespass is commited, under circumstances of aggravation, by a person moved thereto by malice, the jury was not restricted to the value of the property in assessing the damages against the wrong doer or against his executor, but they might, if they thought proper, give vindictive damages against either. Damages of $1500 were given; and the defendant appealed from the judgment.J. G. Bynum and Landers, for the plaintiff .
Gaither, with whom was Alexander, for the defendant , submitted the following authorities:
Revised Statutes, ch. 2d, sec. 11th, p. 57th. Brown v. Blick, action of waste; see Judge Taylor's remarks on the Statute of Gloucester, at p. 518. 3 Murphy 511.-- McLure v. Miller, action for the seduction of his daughter. 4 Hawks. 133. Wylie v. Smitherman, trespass quare clausum fregit. 8 Ired. 236.
As the case appeared, it would have been a proper one for insisting to the jury on vindictive damages against the trespasser. The question is, whether damages of that character can be given against his representative. The Court is of opinion that they cannot. An action for a tort was lost at the common law by the death of either party, the injured or the injurer, upon the maxim, actio personalis moritur cum persona.--That, in some cases, produced great hardship; as torts differ in their nature, some consisting of violence and insult to the person or injury to the character and feelings; and, for such, ordinarily, there is no precise measure of damages, but they are in their nature vindictive, and in a great degree lie in the discretion of a jury. Others consist of injuries to or in respect of property; and for them, the natural and legal redress is to restore the value of the property destroyed, or to the extent of the deterioration of the property.
In cases of the former class, the death of a party prevents the great objects of an action from being attained, while it has no such effect in the latter, as the object then is to reimburse, out...
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