Wilson v. Vaughn

• Decision Date: 04 March 1885
• Court: U.S. District Court — District of Kansas
• Parties: WILSON v. VAUGHN and others.

23 F. 229

WILSON v. VAUGHN and others.

United States Circuit Court, D. Kansas.

March 4, 1885

Botsford & Williams, for plaintiff.

Ritter & Anderson, for defendants.

FOSTER J.

This action was brought by the plaintiff against the defendants who are the commissioners of the county of Cherokee, to recover damages for a willful refusal on the part of the said commissioners to levy a tax on the taxable property of Salamanca township, in said county, to pay off a judgment held by plaintiff against said township, in obedience to a peremptory writ of mandamus from this court. The recovery of the judgment, the issued and service of the writ commanding the levy of the tax, and the willful disobedience thereof by the defendants, were admitted on the trial, and tow of the defendants on the witness stand testified that it was not their purpose to levy the tax hereafter. The plaintiff claimed as his damages the full amount for which the writ was issued,-- about $19,000.

On the trial the court instructed the jury as follows:

'Gentlemen of the Jury In this case, under the pleadings and evidence the plaintiff is entitled to recover against the defendants, as it was clearly the duty of the defendants to have levied the tax as commanded in the peremptory mandamus, and which they willfully refused to do. The plaintiff is entitled to recover his actual damages sustained by reason of such failure and refusal on the part of defendants. But inasmuch as he has not lost his debt or judgment, or any part thereof, and as there is evidence to show that the debtor township is fully able to respond to his debt, and that the refusal of the defendants to levy the tax has only delayed the collection of his debt and the accruing interest, his damages are consequently presumed to be but nominal, and you will so find in your verdict.

'In this case there is also another element of damages under which the plaintiff may also recover, and that is exemplary of punitive damages. The action of the defendants, to say nothing of being a contemptuous disregard of the mandate of this court, was oppressive of the plaintiff, and a clear and willful violation of his legal rights, and, in my opinion, presents a case for consideration of exemplary damages on the part of the plaintiff against the defendants. I cannot lay down any definite rule to govern you in fixing these damages. They are given by the law as a punishment of an aggravated violation of plaintiff's rights, and they should be such as, under all the circumstances and facts shown, are commensurate with the offense; and this you, gentlemen, in the exercise of your sound judgment, are to fix and determine under the evidence produced in the case.

'The court instructs the jury that this, being an action of tort, in which defendants' refusal was willful, continuous, and unlawful, you are at liberty to award plaintiff exemplary damages against defendants, in addition to the damages awarded, as and by way of compensation to plaintiff. The court instructs the jury that on the issues made by the pleadings, and on the uncontradicted evidence in the case, your verdict must be for plaintiff, finding the issues in his favor.'

The jury returned a verdict for plaintiff for $500, and the defendants now move the court to set aside the verdict and grant a new trial, for error of law in the said instructions to the jury.

The particular matter excepted to is that part of the charge in reference to exemplary of punitive damages. The defendants claim that, as the compensatory or actual damages sustained by the plaintiff were but nominal, he cannot recover exemplary damages. In support of this rule counsel have cited two cases,-- Stacy v. Portland Publishing Co. 68 Me. 387, and Maxwell v. Kennedy, 50 Wis. 647; S.C. 7 N.W. 657. The former was an action for libel, and the latter for slander. In the action for libel the trial court refused to instruct for plaintiff for exemplary damages eo nomine, but told the jury they might add as actual damages for any aggravation of the elements of injury occasioned by the express malice of the person who published the article complained of. The jury gave the plaintiff one dollar damages; and the court refused to reverse the case, and remarked, among other things, as follows:

'Taking the case

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