St. Peter's Church v. Beach

26 Conn. 355 | Conn. | 1857

Ellsworth, J.

There is no error in the admission, by the court below, of the testimony of Lambert and French, for the purposes stated in the motion. The reasons are too obvious to need comment.

As to the nature and consequences of long continued possession of real estate, which possession is supposed to have commenced under license, and is claimed in the course of time to have become adverse, we think the court stated the law correctly, and accompanied the submission of the evidence with such remarks as the case called for. But in the charge of the court as to the rule of damages, the court has undoubtedly fallen into a mistake.

It is a part of the case, that the actual damage suffered by the plaintiffs in the destruction of their property does not exceed f 10, and that the defendant’s conduct was not wanton or malicious. Of course the plaintiffs were entitled, as the court stated, to recover their actual damage; but the court further instructed the jury that if the plaintiffs had been compelled to come into court to vindicate their rights, the jury might take into consideration the expenses attending such vindication beyond the taxable costs, as actual damage. If this be a just interpretation of the rule of actual damages, such damages will become just and legal in every case whether of tort or contract, for the plaintiff may always say that he is compelled to come into court to vindicate his rights.

But not to criticise the form or language of the charge, we think there is in it a radical error, viz: that in cases where a penal sum or smart money are not to be allowed, the expenses of the litigation may be allowed as damages ; for the judge stated that none but actual damages were to be assessed, and proceeded to say that the expenses might be allowed; and although the actual loss or injury did not exceed $10, the jury rendered a verdict for $197.91. Now the expenses of litigation are never damages sued for in any case where the action is brought for the wrong itself, not even if the tort be wanton or malicious. They are not the “ natural and proximate consequence of the wrongful act,” which is the universal rule, but are remote, future and contingent. They may follow xhe wrong and are very likely to, but not of course or necessarily. Besides damages sued for must be such as exist, and can be and are, in some form satisfactory to the law, stated in the declaration and made matter of proof; but these expenses accrue subsequently to the bringing of the suit, and can not be stated in the declaration, nor can they become matter of proof. Who ever knew the plaintiff to prove his lawyers’ bills, or the tavern bills of himself and witnesses and the like, to the jury, or witnessed on these points a cross-examination by the defendant’s counsel. Obviously these things do not fall within the issue, and are never made the subjects of enquiry or investigation on trial.

In actions of tort, founded on the misconduct or culpable neglect of the defendant, it is usual and entirely proper for the judge to say to the jury that they are not necessarily confined in assessing damages to the actual loss of property to the plaintiff, but may allow smart money measured by the circumstances of aggravation, and may, from their general knowledge of the course of the courts, if the case warrants it in their judgment, take into account the expenses of the trial beyond the taxable costs. In cases where smart money is allowable, the amount of the verdict rests with the jury, who must exercise a wise and honest discretion; but in other cases, both of contract and tort, if there be no actual culpability, the law gives the rule of damages, and this the jury are bound to apply or a new trial will be granted. This is right, for honest men are sometimes obliged to resort to courts to get their differences settled; and where, though the form of the declaration may indicate a legal wrong, there is really no culpability whatever imputable to either party, smart money can not be allowed. The parties in these cases should be encouraged to appeal to the court on equal terms. The defendant should not be punished by being compelled to pay not only his own counsel but such as the plaintiff may please to select to advocate his claims against the defendant, but each should be left to conduct his own case, and in his own way, and at his own expense beyond what the statute allows in a bill of costs to the prevailing party. Besides, a different rule is entirely unequal, for the defendant, if he prevails, can never recover any more than a statute bill of costs.

We are not aware that the rule we have given is at variance with the current of authorities or the practice of courts. There are some remarks of judges, and perhaps an exceptional case or two in the reports, but we think, in every instance of this kind, there is a neglect to make very important distinctions. They do not discriminate between the cases, nor furnish a rule, as we have endeavored to do, of easy and general application in practice.

The case of Linsley v. Bushnell, 15 Conn., 225, is said to be in favor of the charge below, but we think otherwise. That case was one of culpable neglect and intentional misconduct. The judge in giving the opinion of the court, characterizes the wrong as a “wanton personal injury.” Noyes v. Wood, 19 Conn., 265, is a case of assault and battery. Beecher v. Derby Bridge Company, 24 Conn., 132, contains the rule which we approve ; and the doctrine is the same in Ives v. Carter, 24 Conn., 392. In Barnard v. Poor, 21 Pick., 378, the rule is given in conformity with our views. We have carefully examined the two elementary books cited on the trial, (Greenleaf on Evidence, and Sedgwick on Damages,) where all the cases are found collected, and the subject is commented upon at length ; but we nowhere find any thing which shakes our confidence in the rule of damages we lay down in this case.

As the excess of damages above the $10, the amount of the actual damage, appears by the motion, and the plaintiffs are entitled to the $10, we allow them to retain the verdict for that amount, upon their remitting the balance ; otherwise we advise a new trial.

In this opinion the other judges concurred.

New trial advised nisi.