55 Barb. 615 | N.Y. Sup. Ct. | 1864
Only two questions arise in this case. First, whether the judge erred in admitting the testimony objected to; and second, whether he erred in charging the jury that exemplary damages could be given.
I. The evidence objected to was properly admitted. The witnesses, who were farmers and dairymen, were well acquainted with the article of milk, and showed themselves competent to judge whether it was mixed with water or not. They testified that it was much colder than the milk delivered at the same time by other farmers, and that it looked blue; and the same was the case with the witness, who was a manufacturer of cheese. I think they webe all experts, and, as such, competent to testify whether it looked and tasted like milk and water or not.
II. The more important as well as difficult question is, whether the charge that the jury should also find such exemplary damages as they should deem just and proper, in view of the fraud committed, was correct or not. In actions of slander, malicious prosecution, seduction, crim. con., libel, assault and battery, and false imprisonment, where malice is proved or implied from the circumstances, juries may give exemplary damages, beyond those sustained by the plaintiff, by way of punishing the defendant, and for the purpose of setting a wholesome example, and
So, too, in actions of trespass to real or personal property, where the act is such as to show that it was done maliciously, exemplary damages can and should be given. As where it consists in girdling trees, destroying buildings or fixtures, poisoning animals or destroying the other personal property of the injured party; in all such cases of malicious trespass, the rule of damages contended for by the plaintiff’s counsel applies, and it is because the act is wanton and malicious.
There may be cases of fraud perpetrated under such circumstances as to imply malice, and the rule of damage in such case should be the same as in those mentioned; but no such case is cited; and none has been cited or found, which applies that rule to such a case as this.
Sedgwick (on Damages) lays down the. rule, that “ where either of these elements, fraud, malice, gross negligence or oppression mingle in the controversy, the law, instead of adhering to the system, or even to the language of compensation, adopts a wholly .different rule. It permits the jury to give what it terms punitive, vindictive or exemplary damages; in other words, blends together the interests of society and of 'the aggrieved individual, and gives damages, not only to recompense the sufferer, but to punish the offender.”
Ho case is referred to in support of the proposition that fraud in a transaction warrants the finding of punitive
If one knowingly or fraudulently misrepresents to his vendee the quantity or quality of a farm, or the condition or quality of personal property which he sells to him, whereby he is induced to purchase, and is injured thereby; or knowingly and fraudulently misrepresents the pecuniary standing of a third person, to one from whom such third person is desirous of obtaining property on credit, whereby the person to whom such representations are made is induced to give such credit, and is injured thereby, the well settled rule of damages is one of compensation merely, and not punitive. So also in case of trespass to personal property, under a pretended claim of right and with a view to pecuniary gain only, the rule is the same; no matter how unfounded the claim may be, provided the act be not such as to imply malice.
In this case there is nothing from which malice on the part of the defendant can be implied. The act was a gross fraud, but it cannot be inferred that it was intended to injure the other parties concerned, any further than to the extent that it benefited himself. It would hardly be claimed that if the defendant had watered his milk, and had then sold it to the plaintiflj representing it to be unadulterated, and the action had been brought for that, the rule of exemplary damages would apply. Such a rule would be in conflict with that which applies to other cases of fraud.
In my judgment, this case is analogous to the cases of frauds in the sales of real and personal property, and of fraudulent misrepresentations of the standing of third persons, above referred to; and the rule of damages should be, and is, the same. The same motives operate in this case as there, and the consequences are the same. The fraud complained of is no more wanton or malicious, and
In all such cases, while damages should not be stinted, and should be liberal to cover all the losses caused by the fraud, I think the rule allowing exemplary damages cannot be applied. A new trial should be granted, with costs to abide the event.
• Morgan, Bacon and Foster, Justices.]
