Brown v. Brown

48 N.H. 90 | N.H. | 1868

Nesmith, J.

This was trespass, wherein plaintiff claimed damages for injuries to his person. The verdict of the jury having been rendered for the plaintiff, the defendant alleges sundry exceptions to the rulings of the judge upon the trial, and thereupon asks that said verdict may be set aside :

1. Because the plaintiff was permitted to prove expressions and complaints of present pain and suffering, both before and after the suit, to physicians,'and others who were not shown to be experts.

Generally, but one action can be brought to recover damages resulting from injuries from one trespass to the person; and a party is not obliged to await the full result of his injuries before the commencement of his suit, and the proof may extend to all facts which may occur or or necessarily grow out of the injury up to the time of the trial, and sometimes prospectively beyond the time of the trial. 2 Greenleafs Evidence, secs. 267 and 268, A. & B. p. 312, and authorities in note. Hopkins v. At. & St. L. Railroad, 36 N. H. 9.

In Shaw v. Railroad, 8 Gray, 80, the learned counsel contended for the application of this rule. It was a case where Mrs. Shaw was very severely injured, and the case was warmly contested. Three several verdicts were rendered. The first being for $15,000 ; the second, $18,000 ; the third, upon which judgment was rendered for plaintiff, was for $22,500. At the third and last trial, the plaintiff had then suffered for seven years since the injury was sustained. And the learned counsel, Messrs. Durant & Choate, contended for full compensation in money, for every pain of body or mind, which she had been compelled to endure hitherto and which she must suffer in future.

The judgment of the court appears to have sanctioned this principle. In Ransom v. New York & Erie Railroad, 1 E. P. Smith, 415, the court charged the jury, that, in addition to necessary expenses incurred for nursing and medical aid, for being deprived of the use of limbs, whether total or partial, they might, in addition to the pain and losses already incurred and suffered, take into consideration such as would naturally and probably thereafter result to the plaintiff as the direct consequences of the injury. The latter position was excepted to by Hernán, the learned counsel for defendant. And in that case the cases in England and in this country, are examined at length, and the ruling of the court at the trial was sustained. In that case, the injury received was imputed to the culpably negligent acts of the defendants, and proof as to the natural and probable effects of the injury up to the time of the trial and afterwards, was adjudged legal and properly received, and for like reasons, we think the same rule should be applied here.

2. The complaints or representations of the plaintiff, indicative of present suffering or pain, whether made before or after the suit, and not as a narration of past suffering, but as exhibiting the true nature, s}unptoms and effects of the injury or malady under which the party is then laboring, may be received as original evidence. If made to a medical attendant, they are of greater weight; but if made to any other person, they are not on that account to be rejected as evidence. 1 Greenleaf’s Ev. see. 101; 1 Phillips’ Ev. 191; Howe v. Plainfield, 41 N. H. 145; Perkins v. Railroad, 44 N. H. 223. Hence, the complaints of plaintiff to French and Rogers were properly received in evidence, and it was for the jury to determine, whether they were honest or counterfeit.

3. We see no cause of objection to the terms or language used by the court in their direction to the jury, as to Avhat constitutes self-defence, and the liability accruing from any excess of violence by the defendant, or what was the rule in case plaintiff did not make the first assault upon the defendants and the consequent measure of damages for the violence and injury inflicted by the defendant, including the suffering for both bodily and mental pain. The instruction of the court on this part of the case, seems to accord with the rules laid down in our elementary books, as before quoted, and are approved in Hopkins v. Railroad, ante; and so also, in torts involving circumstances of aggravation, „ showing malice, insult, oppression, wanton or wilful violence, courts aré at liberty to instruct a jury that they may find exemplary damages, such as plaintiff ought to have and the defendant ought to pay. Whether the case before us appropriately belonged to this class of trespasses, was for the court at the trial, in the exercise of a wise discrimination, to determine. Where the conduct of the defendant clearly evinces motives and acts of a wanton or of an excessive, violent, malicious or evil nature, we think the jury may give, as compensatory damages, what are usually denominated vindictive damages. The great weight of authority, under the practice, as administered in England, and in most of .the States in this country, seems to be in support of this doctrine. Professor Greenleaf, in his discussion on this subject, undertakes to prescribe limitations upon this doctrine. Sedgwick, in his book on Damages, devotes a chapter to the consideration of the same subject. Vide ch. 18, 477, and authorities in note, Sedgwick on Damages. There is an article which originally appeared in the Law Reporter of April, 1847, supposed to have been written by the late Judge Metcalf of Massachusetts. The same article makes an appendix to Mr. Sedgwick’s book on Damages. The views of Metcalf are very similar to Prof. Greenleaf’s. In the seventh edition of Yol. 1, of Chancellor Kent’s Com. 618, sec. 618, Kent remarks upon this subject that the object of the review aforesaid was to show, that, in matters of tort, the cases where exemplary damages were given, on a strict examination and construction of the language of them, amount to authorities for going beyond compensatory damages. ‘ ‘ But,” continues he, “ on the consideration of the whole subject, it appears to me that the conclusions in Mr. Sedgwick’s treatise are well warranted by the decisions, and that the attempt to exclude all consideration of the malice and wickedness, and wantonness of the tort, in estimating a proper compensation for the victim, is impracticable, visionary, and repugnant to the fine feelings of our social sympathy and humanity.” Many of the cases in support of this doctrine are quoted at length in the aforesaid chapter of Sedgwick, and in the brief of the counsel fbr plaintiff in this case. And the rule is also laid down, without qualification, that we are not to regard the possible punishment of the defendant by indictment and conviction by a State process. The criminal suit is no bar to the civil, at one and the same time. Jones v. Clay, 1 Bosanquet & P. 191; Jacks v. Bill, 3 Carr. & Payne, 316; Cadily v. Barlow, 1 Man. & Ryl. 275; Cook v. Ellis, 6 Hill, 466; Roberts v. Mason, 10 Ohio, 277. In order to set aside the verdict in this case, the defendant must show not only that the damages were excessive, but that the excess was so great that the court, for this reason, must infer the jury were influenced by improper motives of partiality, passion or corruption. Rand v. Redington, 13 N. H. 76; Treaner v. Donahoc, 9 Cush. 228.

We have not sufficient grounds set forth before us to justify us in setting aside this verdict. There must be

Judgment on the verdict.