38 Vt. 621 | Vt. | 1866
The opinion of the court was delivered by
The court ruled that under the replication de sua injuria the plaintiff was entitled to recover for any excessive force
The plaintiff, after introducing evidence tending to prove the five distinct acts of trespass, counted upon in the declaration, proceeded against objection to prove other acts and words not alleged, some of which were so connected with the acts declared upon as to form a part of the transaction, and most of which were independent of these acts and occurred on other occasions during the period and about the time, in which the defendant is said to have committed the several trespasses with which he is charged. It is not pretended that the plaintiff could recover in this action for any trespasses not counted upon in the declaration. The question is, were the unalleged acts and words which were proven under objection, legitimate subjects of consideration, either in settling the amount the plaintiff should recover, or in determining her right to recover at all for the acts which were alleged.
I. What may be proven to affect the amount of recovery depends in great part upon what rule or principle of damages governs in the case. If the damages are limited to compensation, the proof must be limited to evidence of the nature and extent of the injury to be compensated. If the damages may be extended to punishment, the proof must be extended to evidence of the nature and extent of the offences to be punished. There is not necessarily any proportional relation between the injury and the offence. The injury to the plaintiff may be severe and yet the defendant’s offence be comparatively slight, if it was occasioned by an error of judgment, lack of discretion, or joer infortunium.
On the other hand the injury to the plaintiff may be slight and the defendant’s offence be comparatively serious, if it arose from wanton malice or oppressive cruelty.
There is no question but there are very respectable authorities against the right of recovery in trespass of anything more than compensation to the plaintiff for the actual loss or damage he has suffered, and these authorities exclude all evidence of the intention, motive,
II. The relevancy of proof of malicious intent in this case is the more apparent from the state of the pleadings and evidence. The defendant pleads in justification to some of the counts, that the force he used was but reasonable chastisement of the plaintiff for her misbehavior, and was administered for that purpose ; that she was a child between eleven and twelve years old, whom he had received from her parents to bring up, and that she was subject to proper correction at his hands. The defendant has himself put his intention in issue by his pleading, and made it an issue independent of the matter of exemplary damages upon the main question of the sufficiency of his defence ; for the plaintiff denies that this force was for correction, but says it was de sua injuria, and the defendant to justify must satisfy the jury that chastisement was the purpose of the force, he admits, and not merely the excuse for it. The defendant, under this plea of justification, testified that he administered no more correction than he thought reasonable and proper at that time,
III. The evidence which was admitted under the fourth count against objection, is admissible not only upon the grounds we have stated, but also as a part of the principal transaction. The'defendant after putting the plaintiff naked through the ice into a trough of water, conducted her to the house, and before allowing her to dress, placed her over a stove, and as she trembled whipped her, and compelled her to stand there till she fell. What occurred after she returned to the house is not alleged in the declaration, but occurring in connection with the immersion, and very probably in consequence of it, and before the defendant left her, or allowed her to dress, it must be regarded as one transaction, and may be proved. It is not necessary to allege all the circumstances of a trespass with the same particularity as would be required in declaring upon the independent stipulations of a contract.
The judgment of the county court is affirmed.
Elliot v. Kilburn, 2 Vt. 470.
Vide Esp. N. P. 417; Bul. N. P. 84-89; Peake’s N. P. cases, 45-6.
See 3 Am. Jur, 293 et seq. where this view is forcibly presented and the cases collated by Metcalf, J. This article is quoted in part in 2 Green. Ev. passim.
Day v. Woodworth, 19 Curtis’ U. S. 536, (from 13 Howard,371;) Sedg. Dam. 39, 556, 476, passim; Cable v. Daken, 20 Wend. 172; 12 Conn. 580: 26 Conn. 355, 416; Phila. W. & B. R. R. v. Quigley, 21 Howard U. S. 202; Hopkins v. At. & St. L. R. R., 36 N. H. 9; Peoria Bridge Association v. Loomis, 20 Ill. 235; McWilliams v. Bragg, 3 Wis. 424; Porter v. Seiler, 23 Penn. State R. 424.
1 Green. Ev. § 53; see also Pierce v. Hoffman, 24 Vt. 527; Long v. Chubb, 24 E. C. L. (5 Car. & Payne, 55) 209.