Nancy C. Mayer plaintiff, on the 23d day of May, 1893, instituted her suit in the Circuit Court of Ohio county against George A. Frobe & Son to recover damages for the unlawful sales of intoxicating liquor to her husband, Carl Mayer, by which she was injured in her means of support, which resulted in a judgment for seven hundred and fifty dollars upon a verdict of a jury.
From this judgment the surviving defendant obtained a writ of error, and relies cm the following assignment:
“First. The court erred in overruling defendant’s demurrer to plaintiff’s declaration.
“Second. The court erred in refusing to set aside! the ver-*248 diet of the jury, and to grant a new trial. (See defendant’s bill of exceptions No-. 1).
“Third. The court erred in giving, at the request of tlie plaintiff, her instructions numbered, respectively 1 and 2, as set out in the defendant’s bill of exceptions No. 2.
“Fourth. The court erred in refusing to give, at the request of the defendant, Ms instructions numbered 1 and 2, as set out in defendant’s bill of exceptions No. 3.
“Fifth. The court erred in refusing to give, as requested, instructions to the jury, fоr defendant, numbered respectively, 3 and 4, and in giving modifications of same, as set out in defendant’s bill of exceptions No. 4.
“Sixth. The court erred in allowing and permitting testimony, as well as reñising to permit certain testimony, to be given to, heard, and considered by the jury, as shown and set out in defendant’s bills of exceptions numbered 1, 5, 6, 7, S, and 9, respectively,. And for other reasons apparent on the face of the record.”
The first assignment appears to be waived in the argument, and, as there is no essential omission or defect of form in the declaration, the demurrer thereto was properly overruled. Nine bills of exceptions appear in the record, while the orders of the court only refer to and note the filing of one. It is a stare decisis rule of this Court that a bill of exceptions copied into the record, when there is no order filing the same, is not a true part of the record, and will not be considered. Pegram v. Stortz,
Proceeding with the examination of the merits of this case, at the very threshold of its investigation, the question presents itself for determination whether this Court, as to the matter of exemplary damages will be controlled by the case of Pegram v. Stortz,
In the well considered case of Pegram v. Stortz the Supreme Court of this State, instead of following the hard-beaten path as clearly indicated by the decided weight qf authority reaching beyond the memory of man into an unsearchable antiquity, and seeking to discover the underlying reason thereof, because the law appeared to their minds illogical, heroically assumed the responsibility, and endeavored to dam up the vast, increasing stream of judicial opinion, and turn it into a new' and untried channel. But this attempt, however meritorious, has utterly failed of its purpose beyond our own borders, and within it has only served to produce perplexity and confusion, without any benefit, public or private, except to protect lawbreakers and wrongdoers from the just consequences of their illegal and wrongful acts.
Judge Green, in his lengthy opinion, concurred in by his associates, in line with the arguments of other dissenters from the established doctrine, relies on three principal objections to show that the doctrine of exemplary or punitive damages as received and acted on by the vast majority of judicial tribunals of last resort was opposed to reason, and therefore illogical and unjustifiable: First, That the form of the writ, excluding the very idea of punishment, does not justify or permit the recovery of any damages other than compensatory; Second, that to allow' the assessment оf punitive damages in a civil suit is unconstitutional, in that it per
The first objection is technical, trivial, and wholly untenable; for the writ covers, and the plaintiff sues for all such damages as the law may award. Be they compensatory or punitive or both, they are his legal d,amages. Blackstone defines “damages” to be “a compensation and satisfaction for an injury sustained.” 2 Bl. Comm. 438. A very ancient rule permitted a plaintiff to fix the amount of damages that would satisfy him for the wrong done. 1 Sedg. Dam. § 23. In almost all actions for a willful or wanton wrong to person, property or reputation it is more a question of satisíactionctha»; of compensation that is sought; and satisfaction consist in visiting on the tort feasor a punishment fully adequate to the personal injury inflicted by him, vindictive in its nature, and without regard to compensation. The man vrhose reputation has been vilified, whose child has been seduced from the paths of virtue by a scheming libertine, and his home and happiness wrecked, or who has endured public contumely, gross insult, or unprovoked abuse, appeals not to the law for compensation for his blighted reputation, his wrecked home, or his dishonored life, for that the law can never give, but he demands that the slanderer, the abuser, the vilifier, and the seducer shall be punished in proportion to his wanton, wicked or malicious conduct. In actions ex contractu, or mere thoughtless trespass, or of mistaken legal right, compensatiоn is sought; but in actions of malicious wrong it is the satisfaction of punishment that is demanded. And the jurist, however able, who sees in a money compensation a balm for every wrong, however heinous, suffered, and who would limit the relief sought in such oases to the mere mercenary consideration of dollars and cents as a compensation, but adds to the injury already endured. The establishment of such a rule as law will drive' many an honorable and sensi
The second objection is equally untenable. There is no constitutional inhibition against a pecuniary punishment twice for the same offense, but the provision of the constitution is that “no person shall be put in jeopardy of life or liberty twice for the same offense.” Judge Green, in construing this provision in the case of Fountain v. Town of Moundsville,
The third and last objection is. the most serious, but even it deserves not to be denounced as anomalous or illogical. The opponents of the doctrine of punitive damages, with a feeling of impregnability in thе logic of their position, ask the question, why should the plaintiff, after having received a complete and adequate compensation for the injury received, be awarded a further sum as a mere punishment to the defendant? 1 Sedg. Dam. p. 517, answers this question as follows: “Many anomalies which have far less authority behind them must be supported on this ground, and no anomaly supported by both authority and convenience can be eradicated simply by showing it to be illogical. The idea that it is unjust rests upon the assumption that there is something unfair in allowing the plaintiff’s damages to be
But there is still, in njy humble opinion — in which the Court does not unite — a more valid, ancient, and sacred reason for the assessment of exemplary damages than those usually given, having for its object the suppression or prevention of all wrong, and the extermination of the desire or motive to commit wrong; and this is that the common-law is not agnostical, atheistical, nor even deistical, but is unswervingly theistical. As its crowning glory and chief excellence, with faith immovable it believes in the Cod of Moses, “who, watching over Israel, slumbers not, nor sleeps.” Whatever atheistical or agnostical tendencies may have prevailed from time to time, no act repealing or abrogating, or even derogatory or repugnant to this fundamental principle of the common-law has ever been knowingly enacted
The faithful servant of God, whose equal, save One, has never appeared in human form, in transmitting from the infinite to the finite that perfect code of laws known as the “Ten Commandments,” which challenges the admiration and obedience of all mankind as the sure foundation of peace, prosperity and happiness, also at the same time, as from the same divine source, delivered with a tongue that forbade the utterance of any untruth, the following, among other judgments for the government of his people: (1) “If
It being my firm conviction, derived from the wisest expounders thereof, that the early founders of the common-law were true believers in the Bible as a revelation from God, and from which they acquired its most solid and enduring principles, I have referred to the .foregoing judgments, without any intention of binding my associates to the same opinion. Nor do I consider it a mere arbitrary rule presсribed by supreme authority, but it is founded on wisdom and justice, for the' purpose of preventing, rather than punishing, wrong. It is universally recognized as an unequivocal truth that the greatest source of evil among men is a selfish disregard of the rights of others, the existence of which argumentatively makes civil government absolutely necessary for man’s felicity. To overcome and destroy this selfishness by rewards and punishments after the manner or measure of Biblical justice, when properly enforced, this rule has proven itself invaluable. Its effect is fourfold in its operation. As to the wrongdoer it is a double-edged sword: First. It requires him to make full reparation. Second. It punishes him in proportion to the maliciousness of his conduct. As to the sufferer. First. Acting as his protector, it fully compensates him for his loss. Second. As, his- avenger, it rewards him, in proportion to the wicked spirit of his adversary, for the obedient sub
In law, as well as in physics, an ounce of prevention is worth a pound of cure. When an evil disposed person is forewarned that the effect of his wrongful act will in no wise injure the object of his malice, but will increase his neighbor’s estate, and' enhance his neighbor’s prosperity, at an expense to and1 loss of his own, in proportion to his oppressive and unlawful conduct, he will not only hesitate, but be deterred from doing a wrong injurious to himself alone, and beneficial to the sufferer from his ill will or evil conduct. His motive for evil is thus destroyed.
The question may be suggested, where did the early Saxon founders of the common-law obtain their knowledge of this rule? Long before- the most ancient records of Saxon origin, the tribes of Israel, by reason of their disobedience, in fulfillment of the farewell proрhecies of their great lawgiver, had been scattered “among all people, from the one end of the earth even unto the other,” carrying with them the laws, precepts, and practices of their fathers, which they were commanded “to teach diligently unto their children.” However this may be, truth is not a matter of locality. Wherever and whenever the human intellect, as the image of its maker, is uncomipted by vice and immorality, uncontaminated by disease and intemperance; and unbiased by passion and prejudice, it perceives and seizes upon truth with an instinctive affection as a priceless possession bestowed by an all wise creator, and herein consists the “excellency of the common-law, which is said to be the perfection of human reason,” and our system of trials by jury, having its foundation on the innate love of right and justice implantеd in the breast of all men by infinite wisdom. An illustration of this is to be found in certain present provisions of our statutory law, which bear a marked*" resemblance to the ancient judgments cited above, and which it would be hardly safe to predicate on legislative imitation of the book of Exodus. Section 25, chapter 41, of the Code, provides that an officer who sells the exempt property of a
■ In the case of Beck v. Thompson,
■ In the case so much relied on by Judge Green, of Riddle v. McGinnis,
Besides the courts of England and the Supreme Court ot the United States, nearly every state supreme court has held the doctrine of exemplary damages strictly as a pun-
In considering the motion for a new trial it is the well settled rule that the weight of the testimony is for the jury, and not for the court; and, unless the verdict is plainly contrary to the weight of the testimony, it will not be disturbed.
Thus viewing this case, the unlawful sales of intoxicating liquors injurious to the plaintiff’s means of support are fully established. The husband had become an habitual drunkard, squandered all his property, and deserted his family, because of his intempеrate habits, leaving the wife to support herself and children. The surviving defendant insists .as a sole objection to the sufficiency of the evidence that no knowledge of the drinking habits of the husband was brought home to the defendants. There might have been some grounds for this objection had he not testified himself with regard thereto, and given as his reason for not selling the husband anything to drink,that he knew his wife did not want him to have any, and knew the way he got when he was next door. Evidently the jury believed his admissions, and
As to what would be a proper amount to assess by way of punishment for the private wrong done to operate as a warning and prevent repetition of similar wrongs, many minds might well differ, and, the legislature not having seen. proper to fix any limit, the jury become the sole and final judges, unless their finding evinces passion, prejudice, partiality or corruption; and the court can not invade their province. Under the law as applied to the circumstances, of this case, seven hundred and fifty dollars is not an excessive verdict. Battrell v. Railway Co.,
The defendant might well, insist that the punishment is severe; that if he had not made the sales complained of, others would have done so; and that the sale of intoxicants - being a legitimate business, there were divers ways in which a person in the habit of drinking to intoxication could and would obtain the means to satisfy an uncontrollable thirst;, and thаt he should not be made the scapegoat or sacrifice for the sins of others. The answer suggests itself that although the law licenses drinking as a source of revenue, it seeks to prevent and suppress intemperance, with its long line of attendant evils; and the legislature, with this end in view, has authorized the infliction of exemplary damages. That the spirit and manifest intention of the law is good, can not be denied; and if it could be made to effect the object of its originators it would confer upon society a boon of inestimable value; and, even though it should only succeed in diminishing to a limited extent the widespread sorrow,, poverty and misery inflicted on the helpless and innocent by the wretched slaves of a depraved and vicious appetite, its-enactment will not have been in vain. That it may prove-
There being no sufficient error to justify the reversal of the judgment' of the Circuit Court,, it is! affirmed.
Judges Holt, English and myself, lest we be misunderstood, conclude that a short note, to express our position,is called for in view of the opinion in this case. In consultation we suggested that we did not feel called upon, in a judicial opinion, to assert or deny any particular, distinctive Christian creed or dogma. Blackstone is referred to in the-above opinion. He was writing law for a government in which church and state were united, a particular church and its creed being an integral part of that government; but it' is our boast that ours is a government in which church and state are separated by the letter of our constitutions, by governmental adminstration, аnd by the sentiment of our' people. In this land every one may worship and believe as his conscience and mind approve1. Our government knows no distinctive Christian or other creed, merely as such, but grants absolute tolerance to, all creeds and beliefs; and our population is composed of people of many different Christian denominations and of other creeds. As men and citizens-they are equal before the law, the government and the public courts. The. government is by all, for all, and of all the people. This Court is a part of that government'. Its duty is to expound alike for all the municipal law of the land, and when it does that its function is performed. It is not its-duty or prerogative to expound religious principles, or expressly or impliedly disparage any man’s belief. While we, as individuals, have the highest regard and respect for Christianity generally, we do not think it proper, in an opinion of this Court, to appear to¡ espouse or enforce any particular' or distinctive Christian creed.