Appeal, No. 82 | Pa. | Jul 13, 1892
Lead Opinion
Opinion by
The decision of this case has been delayed for reasons not personal to the writer.
‘ The suit was brought by the plaintiff in the court below against the defendant to recover damages for debauching his (the plaintiff’s) wife. The jury found for the plaintiff in the sum of $2,000, which the court subsequently reduced to $500, and the verdict thus reduced was accepted by the plaintiff. This belongs to a class of cases in which the plaintiff has been allowed from time immemorial to recover punitive damages. Hence we cannot sustain the fifth specification in which it is alleged that the learned judge erred in applying this principle. In view of the fact that it is the settled rule of this state, and so understood by nearly every practitioner, we do not care to enter into a discussion of the controversy upon this subject
We find nothing to condemn in those portions of the charge embraced in the second and third specifications. If • the defendant and the plaintiff’s wife visited the Greenwood Hotel late at night, and remained there for two or three hours as testified to by some of the witnesses, it was a circumstance from which the jury would have the right to draw an unfavorable inference, and this was substantially what the learned judge said to them.
The fourth specification alleges that the learned judge erred in instructing the jury that: “ The defendant, of course, is interested in swearing, if there is any such thing as honor or moral right that would excuse falsehood, not only to that which would relieve himself, but will protect his paramour.”
While this instruction is not sugar-coated, we cannot say it was error. The learned judge below had the right to call the attention of the jury to the fact of the nature of the defendant’s interest. He had not only the pecuniary interest common to defendants in other cases, but he had also his own reputation and the reputation of the woman who was charged to have been his paramour at stake. When therefore the learned judge told the jury that he was not only interested in swearing to what would clear himself, but also the woman, he said nothing but the truth, and what all experience shows to be true. On the other hand the learned judge called the attention of the jury in equally vigorous language to the interest of the plaintiff as tending to affect his credibility. In view of the present condition of the law of evidence, it is entirely proper for the court to call the attention of the jury to the personal interest of a party to the record who goes upon the stand as a witness.
The first specification is more serious. The counsel for the defendant objected to the competency of the plaintiff as a witness. He was called to prove the criminal intercourse of his wife with the defendant; in other words, to prove her adultery. It is true, his wife was not a party to the record, but the object and effect of his testimony was to criminate her. I am not aware that any of our Acts of Assembly enlarging the com
We are of opinion that it was error to permit the husband to testify in this case. He was an incompetent witness. The issue, and the only issue, involved the adultery of his wife. It was not competent for him to forge a single link in the chain of circumstances pointing to his wife’s criminal conduct, and upon any other subject his testimony would have been irrelevant.
The judgment is reversed, and a venire facias de novo awarded.
Concurrence Opinion
I concur in the judgment entered in this case, but upon one question I find that I am not in accord with my brethren. I would go further than they are yet ready to go and sustain another assignment of error.
The learned judge of the court below instructed the jury that if they should find in favor of the plaintiff they might render a verdict for such sum as might seem reasonable and proper to them in order to accomplish the following purposes: (a) to make compensation to the plaintiff for the injury he had sustained; (b) to deter the pTaJntiff from committing the like crime in time to come; (c) to deter other persons from committing the same crime; (d) to punish the defendant for this crime.
The act for which the plaintiff sought to recover damages involved a private injury and a public offence ; a violation of the civil rights of the plaintiff, and of the criminal laws of the state. It exposed him to two measures of punishment. One due to the private injury, another to the public offence. The first is imposed in the civil courts, at the suit of the party injured, and is for his private benefit. The second is imposed in the criminal courts at the instance of the public, and Tby way of the enforcement of the criminal law. This distinction is fundamental and prevails throughout the civilized world. The extent of the private injury, and the amount of compensation to which the injured party is entitled, are subjects upon which the finding of a jury is the legal measure. The grade of the crime, and the punishment to be imposed upon conviction, are fixed by the criminal code. When a maximum and minimum limit are prescribed, the intermediate point which the sentence shall adopt, is left not to the jury but to the judge. In view of the circumstances peculiar to the crime or the criminal he may exercise his discretion within the limits which the law has set. These two measures of punishment due to the different phases of the same act, administered by different tribunals, through radically different modes of procedure, and for different ends, ought not to be confounded. The criminal courts punish in order to preserve the public peace, protect the public morals and enforce the criminal law. The civil courts punish the violator of private rights by compelling him to repair the
At this point it must be remembered that damages may be awarded according to one or both of two standards or methods of calculation depending on the character of the wrong done and the circumstances surrounding it. The first of these is well defined in the Am. & Eng. Ency. of Law, vol. 7, page 449, as “ the pecuniary loss which from its nature is capable of being estimated with entire or approximate accuracy.” This standard is applicable to all ordinary actions of trespass for an injury committed without malice and without circumstances of aggravation. The other is the compensation due by reason of the circumstances of aggravation, which having no exact pecuniary measure must be left to the exercise of a sound discretion by the jury. Damages so ascertained are distinguished
It is urged that similar expressions to those we are now considering are frequently to be met with in the courts, and that this court has approved and adopted them as correctly defining the powers of the jury in such cases. I do not deny that several cases may be found in which words like those made use of in this case have been used by judges of this court in distinguishing between the two measures or methods of computing damages, and in upholding the right of the plaintiff in the case then under examination to recover exemplary damages. I do distinctly deny however that the point now brought to our attention has been considered and determined in accordance with the action of the court below. The jury should know the extent of, and the limitations to, their power in the assessment of damages. The defendant has a right to insist that he cannot be constitutionally punished for a crime in a court which has no jurisdiction over it, and whose judgment he cannot plead when he is called upon to answer in the proper tribunal. The jury should have been told that they had no concern with the punishment of the defendant for his crime against the public; and that they should only consider the private wrong done' the plaintiff, and in the exercise of a reasonable discretion give him such a pecuniary equivalent therefor as in view of all the circumstances might seem to them just. I would reverse for this reason if there was no other error appearing on the record.