Rogers v. Florence Printing Co.

• Decision Date: 10 December 1958
• Docket Number: No. 17481,17481
• Court: South Carolina Supreme Court
• Parties: Foster ROGERS, an infant under the age of fourteen years, by his Guardian ad litem, Malcolm P. Rogers, Respondent, v. The FLORENCE PRINTING COMPANY, Appellant.

Page 258

106 S.E.2d 258

233 S.C. 567

Foster ROGERS, an infant under the age of fourteen years, by his Guardian ad litem, Malcolm P. Rogers, Respondent, v. The FLORENCE PRINTING COMPANY, Appellant.

No. 17481.

Supreme Court of South Carolina.

Dec. 10, 1958.

McEachin, Townsend & Zeigler, Florence, for appellant.

H. E. Yarborough, Jr., John L. McGowan, Florence, for respondent.

LEGGE, Justice.

Plaintiff, a minor twelve years of age, brought this action against the publisher of a daily newspaper, seeking recovery of actual and punitive damages in the amount of one hundred thousand ($100,000) dollars by reason of its publication, on May 10, 1956, of a defamatory article concerning him. Upon a former appeal, 230 S.C. 304, 95 S.E.2d 616, wherein we held that the article was libelous per se, its substance was set out in the opinion of this court; it need not be repeated here. The case was tried in September, 1957, before the Honorable J. M. Brailsford, Jr., Presiding Judge, and a jury. Verdict was in favor of the plaintiff for five thousand ($5,000.00) dollars actual and twenty thousand ($20,000.00) dollars punitive damages. Thereafter, by consent of counsel, defendant's motion for a new trial was marked 'heard' and was argued in April, 1958. From Judge Brailsford's order of May 17, 1958, overruling that motion, the defendant has appealed.

The numerous exceptions present but three issues, viz.:

1. Was the verdict so excessive as to indicate caprice, passion or prejudice on the part of the jury?

2. Was there error in the charge to the jury?

3. Did the trial judge err in refusing to declare a mistrial because of a remark made by plaintiff's counsel in argument to the jury?

On the first of these issues, appellant's counsel direct their argument only against the award of punitive damages. They contend that its amount conclusively shows the taint of caprice, passion or prejudice because:

1. It is unreasonably disproportionate to the award of actual damages;

2. It exceeds the maximum fine for criminal libel under Section 16-161 of the 1952 Code; and

3. There was no evidence of appellant's wealth.

Counsel preface their argument on this issue with the plea that this court should, as a matter of public policy, reject the doctrine of punitive damages. They urge that, since to punish is the function not of the individual litigant, but of the state, and since the plaintiff in a tort action is entitled only to be compensated for his injury, the doctrine is, in fact, that of private vengeance and should be repudiated as illogical and unjust. The short answer to this plea is that it was not, so far as the record here shows, made before the lower court. But, waiving that, we shall discuss it briefly, for it brings into focus the function of this court with respect to the public policy of the state.

The question whether punitive damages should have any place in civil actions has been the subject of numberous legal treatises. Some fifty years ago one author (20 Harvard Law Review 420) said that it had been so often discussed that it was becoming somewhat threadbare. Another (70 Harvard Law Review 517) quotes the opinion of the New Hampshire court, Fay v. Parker, 1873, 53 N.H. 342, 382, wherein exemplary damages were denounced as 'a monstrous heresy * * * an unhealthy excrescence, deforming the symmetry of the body of the law.'

There is much to be said, and indeed much has been said, in support of appellant's criticism of the doctrine. 'It is probable that, in the framing of a model code of damages today for use in a country unhampered by legal traditions, the doctrine of exemplary damages would find no place.' McCormick, Damages, Section 77, p. 276.

On the other hand, since fault is usually a necessary ingredient of the defendant's liability in tort, the function of all damages in such cases may be said to be admonitory as well as reparative. In this view, when the defendant's fault has been aggravated by his wilfulness or malice, the admonitory function may not be adequately accomplished by the award of compensatory damages only, especially where actual injury to the plaintiff has been slight.

Despite criticism and denunciation of the doctrine, allowance of exemplary damages in cases of wilful, wanton or malicious tort has continued to be the rule in most jurisdictions in this country for well over a century. Recognition of the doctrine in South Carolina goes as far back as 1784, when Genay v. Norris, 1 Bay 6, was decided. And the dual function of such damages was referred to in Watts v. South Bound R. Co., 60 S.C. 67, 38 S.E. 240, 242, in the following language:

'Exemplary or punitive damages go to the plaintiff, not as a fine or penalty for a public wrong, but in vindication of a private right which has been willfully invaded; and indead, it may be said that such damages in a measure compensate or satisfy for the willfulness with which the private right was invaded, but, in addition thereto, operating as a deterring punishment to the wrongdoer, and as a warning to others.'

And again, in Beaudrot v. Southern R. Co., 69 S.C. 160, 48 S.E. 106, 107, this court, speaking through Mr. Justice Woods, said:

'Punitive damages have now come, however, to be generally, though not universally, regarded, not only as punishment for wrong, but as vindication of private right. This is the basis upon which they are now placed in this state.'

The same view has been recently expressed in Davenport v. Woodside Cotton Mills Co., 225 S.C. 52, 80 S.E.2d 740. See also Mock v. Atlantic Coast Line R. Co., 227 S.C. 245, 267; 87 S.E.2d 830, 840, where the compensatory aspect of such damages was referred to.

But we need dwell no longer upon the rationale, or upon the merits or demerits, of the doctrine. Acquiescence in it for almost two centuries justifies the conclusion that it is now agreeable to, and part of, the public policy of the state.

It is often the function of the courts by their judgments to establish public policy where none on the subject exists. But overthrow by the courts of existing public policy is quite another matter. That its establishment may have resulted from decisional, rather than statutory, law, is, in our opinion, immaterial. Once firmly rooted, such policy becomes in effect a rule of conduct or of property within the state. In the exercise of proper judicial self-restraint, the courts should leave it to the people, through their elected representatives in the General Assembly, to say whether or not it should be revised or discarded.

The fact that the verdict for punitive was four times as large as that for actual damages does not of itself compel us to disturb the former. There would appear to be no sound reason for a rule requiring the one to be in definite ratio to the other; no such rule exists in this state. Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S.C. 538, 5 S.E.2d 281. Cf. Beaudrot v. Southern R. Co., supra, in which a verdict for $1,016.66 was sustained where the actual damage was about $2.50; and Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729, where award of $25,000.00 punitive damages was affirmed, the verdict for actual damages being in the amount of $1,000.00.

Appellant suggests that Section 16-161, setting the maximum fine for criminal libel at $5,000.00, is a legislative expression of the public policy of the state, applicable as well to punitive damages in civil actions for libel, and that we should, therefore, reverse the award for punitive damages here or remand the cause with directions to the lower court to order a new trial unless the plaintiff remit the excess over $5,000.00. We think the suggestion unsoundly premised. The statute reads as follows:

'Any person who shall with malicious intent originate, utter, circulate or publish any false statement or matter concerning another the effect of which shall tend to injure such person in his character or reputation shall be guilty of a misdemeanor and, upon conviction therefor, be subject to punishment by fine not to exceed five thousand dollars or by imprisonment for a term not exceeding one year, or by both fine and imprisonment, in the discretion of the court; provided, that nothing herein shall be construed to abridge any right any person may have by way of an action for damages for libel or slander under the existing law.'

Had the General Assembly intended to limit punitive damages in actions for libel on the civil side of the court, it would have been a simple matter to say so. That it had no such intention seems evident from the proviso just quoted.

Finally, with regard to the alleged excessiveness of the verdict, appellant contends that absence of proof of its wealth impels the conclusion that the award of $20,000 punitive damages resulted from caprice, passion or prejudice, and that a new trial should therefore be granted. In Charles v. Texas Company, 199 S.C. 156, 18 S.E.2d 719, it was held that while the financial worth of a defendant was a fact properly to be considered by the jury in its determination of the amount to be awarded by way of punitive damages, evidence of such worth was not requisite to such award. We also said there that, since information as to his worth was a matter peculiarly within the defendant's possession, he should not be heard to complain that the jury made its award without such information, where he himself testified and did not offer it. Appellant, having asked that we review that decision, argues that evidence of a defendant's wealth is bound to prejudice his cause; that he should not be compelled, at his peril, to prove his poverty; and that he should not be presumed wealthy unless the record so warrants. But, despite these arguments, we adhere to the principles stated in the Charles case to which we have just referred. Factors other than the defendant's ability to respond to the judgment necessarily enter into the determination of a proper award of punitive damages; in actions such...