Page images
[ocr errors]

Ohio Law Journal.

pain to poor erring humanity. About two years

ago a farmer went to a neighbor's house and COLUMBUS, OHIO, : : SEPT. 29, 1881. playfully stuck his big jack knife into his

neighbor's corporation, nearly severing his back FOR SALE!

bone and almost cutting his liver out. The

party thus dealt with showed such rare good We have for sale a complete set of Ohio pluck that he kept on breathing and even tryand Ohio State Reports, only a few weeks out

ing to get away, and this roused the admiration

of the carver to such an extent that he applied of the hands of the publishers, fully as good a still further test to his tenacity and mashed as new, (they are new, in fact,) which we will

his head with a brick. Still he wouldn't give sell cheap for cash. Also, a large lot of new

in and others induced the masher to desist. and second-hand law books, at very low

The neighbor was not confined to his bed more

than five or six months; but upon getting out prices. Send for list.

had his friend arrested and indicted for “cutLORD & BOWMAN.

ting with intent to wound.” The P. A. would

not hurt his feelings by making it "with intent POSTPONING THE STAR ROUTE GRAND to kill"—such a nice gentleman he was! And JURY.

until this day he has not been brought to trial. Neither the Attorney General nor his associ.

True the neighbor is very much incensed and ates can be held to be in the slightest degree tries hard to get the ease to trial, particularly as responsible for the delay. They expected some his cut liver shows a disposition to carry him off of the cases to be taken up by the grand jury one of these days, and as the carver comes over next week, and they were ready to present them. It will now be about the middle of periodically and sneers at him and his efforts to October before they can hope for another oppor

get the case to trial. But the good-hearted P. tunity, and in the interim a broad hint might A. spares the feelings of the playful defendant be conveyed to the accommodating Corkhill that and still he roams at large. further trifling with this matter will be re- Besides this, there are a dozen butchers garded as a proof of his unfitness to discharge slaughtering cattle, hogs and sheep within a the duties of his position.

short distance of the benevolent institutions of We clip the foregoing from the New York

the State, in violation of a well-known law. Times. It appears to us very much like an in

The officers of the State have long tried to have sinuation that the Prosecuting Attorney of the

the butchers indicted for this flagrant violation District of Columbia is not hurrying the inves

of law. But the kind-hearted P. A. won't have tigation and punishment of the Star Route

He sees the hard times these men have thieves as he might do. It does seem strange that it so.

selling beef-steaks at eighteen cents the pound, some people expect Prosecuting Attorneys to

and losing sleep to get them ready even at that work miracles in bringing criminals to justice. price; and so he kindly refuses to get them The fact that such officers are only human seems

indicted, allaying their fears and frowning upon to be entirely forgotten; and that their hearts are not always dead to the promptings of mercy,

the meddlesome people who would give them

trouble. We admire this evidence of heart. is likewise not remembered. Colonel Corkhill no doubt feels for those gentlemen who have

None of your hard-hearted Prosecuting Attorbeen so unfortunate in their speculations in

neys for us. Give us one like our own William

J., whose motto is that “man's inhumanity to "advancing” mail routes. They were in a fair

man makes countless thousands mourn." way to become very wealthy and very much honored in consequence, when Postmaster Gen

A CONUNDRUM. eral James so officiously interfered and broke up their business. In their misfortune good Colonel

An indignant Cincinnatian writes for legal Corkhill no doubt deeply sympathizes, and does advice upon the following statement of facts. not, therefore, bear down upon them too severely.

He says: We can understand this kind-heartedness on "I am a temperance man-a prohibitionist of the part of the official. We have in this good

the strictest sect, and an ardent admirer of the

late lamented President. I was, moregi er, one old County of Franklin a very similar instance of the coutributors to the Commercial Fund of the sweet mercy that shrinks from giving to reward a nian named Cook, of Newark, for striking a Democrat who had expressed pleas

THE DEAD PRESIDENT. ure at the assassination. Since contributing, for myself and the members of my family

Remarks before a Citizens' Meeting held at Columbus, nineteen cents, in all-I have heard things which prompted me to investigate the matter.

Wednesday evening, September 21, 1881. I find that Cook quarrelled with a Republican concerning the differences between the Half

BY HON. R. A. HARRISON. breeds and Stalwarts; that the other man said 'there were many Republicans in New York A meeting was called by the Mayor of Columwho were

no doubt glad that Garfield was bus, for the purpose of giving some public exshot;' that Cook, who was a Conkling man,

pression upon the death of the late President, called the Garfield man a 'scoundrelly half

Garfield, at which Hon. R. A. Harrison was breed,' and 'was in turn called a liar, and that the blow was then given. Now, I also learn

called to preside, who, on taking the chair, that the 'Fund' has been expended by Cook in

said: fitting up a whiskey shop and buying a stock of

“To me the death of President Garfield is, liquors, and that he is retailing liquid damna

in truth, a personal, individual bereavement. tion at ten cents a drink, while I am working for fourteen shillings a day. Now, what can I

I had the delight and the honor of knowing him, do? The representations made by the parties personally, long and well. It was my good forcalling for the Fund' were false. The money tune to be an humble co-laborer with him in his has been given to a man who insulted Garfield first public service. Twenty-one years ago last by the blow instead of defending him, and now, last and most humiliating of all, he has in: January he and I entered yonder Senate Chamvested my money to carry on the hellish work ber as members elect of the Senate of Ohio. of the rum-seller. Is there any

redress ?

General Garfield was then a young man—the “ INDIGNANT.

youngest man in the Senate. In spite of his Under the circumstances, we can only say to youth, he soon became its foremost member in our correspondent that, while he has a very the important debates and the important measgrievous grievance, the less said about it the ures. O, how vividly the sad and painful event better.

of his demise has recalled what manner of man There can be little doubt that an action would he was then. His private life was then, as it lie against the solicitors of the “ Fund,” but the has ever been, spotless. His heart was then, as money could hardly be recovered from Cook. ever afterward, warm, generous, charitable and He would no doubt “set 'em up” to

you, if

unsullied. His habits were then, as they have were to drop into his saloon and explain the ever been, regular and abstemious, industrious matter, unless, indeed, he feared that each giver and studious. His manners were then, as they of a penny would be coming in for a free drink, always were, singularly youthful, simple, sincere in which case he would wisely decline. The and genial. He was then, as he never ceased to best thing “Indignant" can do is to steer clear be, a man of sturdy, active and inspiring faithof “ Funds” in the future, unless he is certain believing in Christ and his fellow man. He was the object of the charity is entirely worthy and in the Ohio Senate, as he afterward became in his tale a true one.

the House of Representatives of the United

States, the ablest debater and most eloquent oraLAWYERS AS LAW MAKERS.

tor. The finger of him who "touched Isaiah's The following from the Kansas Commonwealth meets

hallowed lips with fire" touched his. Perhaps with our heartiest endorsement:

when he entered the Senate he knew more of “It is not the fault of the lawyers in the legislature

books than he knew of men, but he soon read, that so many unconstitutional laws are passed. Almost understood and became master of the one as he invariably such acts become laws in the face of protests

did of the other. He then was without fortune, from lawyers. *** At every session there have been

and so exclusively did he ever afterward devote a lot of members who thought to make themselves popular by denouncing lawyers. Every measure proposed

all his energies to the public service, and so inby a lawyer would be opposed by these wiseacres. They corruptible was he, that he died without fortune. would try to make the people believe that lawyers were

He was, at that time, when the clouds of civil a ways trying to get some measure through to rob the people. The result has been, and always will be, that

war were rapidly gathering over the Republic, crude, unwise laws have been passed. We mean, always

the determined and eloquent defender of the will be till the people send men to the legislature, who maintenance of liberty and Union, at all hazeither know something themselves, or know enough to ards. When the time for argument had passed, know that they don't know anything, and will follow the advice of those who do know something."

he left the Senate chamber for the tented field, and there did yeoman service for the preserva- the civilized nations are in mourning that this tion of an individed and undivisible Republic. young but illustrious man is now lost to his As a member of the Senate he was a devotee in country and mankind. One touch of nature the service whereunto the people had called him, makes the whole world kin. While General taking an active interest not only in what con- Garfield's name and fame will be held in perpetcerned the physical well being of his country, ual and sacred remembrance, the crime, and the but in every measure which might promote the name of the perpetrator of the crime, which has intellectual and moral improvement of the peo- brought this irreparable calamity, will be given ple. He took a special interest in whatever over to eternal execration. concerned the public schools and the benevolent The heroic and Christian patience, fortitude institutions of the State. He was then, as he and courage with which General Garfield bore always was, an unrelenting and active enemy his terrible and prolonged sufferings from the of oppression in every form. He abhorred hu- day he fell until his demise, and the manner of man slavery, and on every fit occasion denounced his death, confirm Sir Thomas Browne's declarait. He was then recognized, as he has since so tion that "marshaling all the horrors of death, often demonstrated himself to be, a man of cour- and contemplating the extremities thereof, I find age-not merely physical courage, but that not anything therein to daunt the courage of a which is far more noble and more rare, moral man, much less a well-resolved Christian." courage. No man then had more devoted friends; but they were confined to the compara

EXEMPLARY DAMAGES. tively few who then knew him. O, how from year to year they have multiplied. No public among the jurists of the present day, that the

There is, I believe, a growing conviction man was ever more beloved by his countrymen law of punitive or exemplary damages has been than General warfield is to-day. And it can be built upon a wrong foundation, and is alike consaid with literal truth that those who paint him

trary to principle and evil in its effects. I share truest, praise him most.

deeply in this feeling, and in the hope of effect

ing something, however little, toward a reform, I watched, with lively interest, the career of would willingly add a few words to what was General Garfield from the time he left the Ohio

once a much discussed question. Senate in the spring of 1861, until he was placed damages are proper, to give complete redress, so

It is the aim of the common law in cases where by the American people upon the summit of far as this can be estimated in a pecuniary way. earthly fame. I venture to say that there can- Whatever the practical result may be, the law not be found in the world's history a man who, does not confess its inability to give just compenupon a theater so vast and varied, made a

sation, nor abandon the theory that the remedy steadier and more rapid growth than he in all

is sufficient. The controversy has been with ref. the great and ennobling qualities of statesman, aggravated torts.

erence to the proper rule of damages in cases of orator, soldier, patriot and political leader. A few of our courts in this country maintain, Would to God that he had been spared to com- that the proof of malicious motives forms a basis plete a life of three score and ten years, for the

for special or extraordinary compensation; to sake of his country, the world and posterity, the tort, but as near as can be estimated, damages

cover not only the natural and legal results of as well as for the sake of his noble family and of for mental or physical pain, anxiety or distress, the aged and beloved mother, whose sterling or degradation, which actually resulted from the characteristics were impressed upon the son and act. But in the rulings of these courts which made him the idol of his countrymen and illus

uphold the system of exemplary or vindictive

damages, a radical difference is made between ortrious among mankind.

dinary torts, and cases where there is fraud, willNo other country could have produced such a ful negligence, or actual malice on the part of man. He was a perfect type of our free institu

the defendant—the rule not confining the jury tions. The horrid hand of an assassin has de

to simple compensation, but allowing them to

give such further damages “as will mark their prived him of his life and his country of his ser

sense of the injustice and insult done to the vices before he attained fifty years of age. Still, plaintiff, as punishment upon the defendant, young as he was, his honest fame is as wide as and as a wholesome example to the community. the globe and will be perpetual as time. The

We find these words in substance used again and announcement of his death carried inexpressible again by the courts of this country, until their

continued repetition, unaccompanied by explanasorrow to every household and every heart. In

tion, tries the ear. The judges seemingly encommon with the American people, the rest of deavor to evade the responsibility and inconsistency of the doctrine, by parrotting the expres- loss. If this is true, which I believe it is very sion of others. The position taken by those who, far from being, the terms “exemplary” and “pulike Mr. Sedgwick (Sedgwick on Damages 573, nitive

nitive” damages, are certainly very ill chosen; note, 6th ed.), and Dillon J. (Berry v. Fletcher, 1 for it leads the jury, however much restrained in Dillon 67), have the vigor to assert an open opin- | theory, to make the estimate of damages, with a ion is, that it is only just to the outraged sense view to punish the defendant rather than comof the community, that the defendant should be pensate the plaintiff:

pensate the plaintiff: Hendrickson 0. Kingsassessed such a farther sum, beyond compensa-bury, 21 Iowa 379. tion, in proportion to his wealth as will relieve

But the distinction is more than one of words. the sting of insult, and deter the defendant from

The jury under the one instruction, would be liaa repetition of the offence. The fact, that the

ble to go beyond the ends of justice. Under the assessment goes to the plaintiff is incidental, system of exemplary damages, they are instructed and subservient to the necessity of giving an ex

to give not only compensation, but are allowed ample to the community and of punishing the to punish the defendant with a further sum; and defendant. This, in a few words, is the principle of the cuniary ability, is admissible to guide the jury

it is expressly held, that evidence of his pedoctrine of exemplary damages. To us it seems in estimating what sum must be assessed against to have arisen under a mistaken idea, and as a

him to make the punishment effective: Guenresult of unadvised dicta and incompetent rea- gerech v. Smith, 34 Iowa 348; Buckley v. Knapp, soning. It is quite well established in this coun

48 Mo. 152. try, though the tendency of some modern decisions is to repudiate it altogether. Some courts

Under the principle that damages should never recognize the inconsistency, while they yield to

be given beyond compensation, the jury is in

structed to estimate the entire injury, taking inthe authority of precedents. Brown v. Świneford. 44 Wis. 282; Smithwick v. Ward, 7 Jones. L. R.

to consideration the mental anxiety and distress, (N. C.) 64.

as well as pecuniary loss, and to give full comThe difficulty of estimating compensation by pensation for all the injury which defendant's intangible injuries, was the cause of the rise of this doctrine; the hardship of particular cases

one cent. The result is very different. The jury was the pretext; and without comprehending of remedy, and not of criminal fine.

in the latter case deal with the question as one the extensive consequences, the judges of our courts have, perhaps unintentionally, allowed

And it is difficult to see how, under the estabtheir sympathy for mental distress to overpower

lished system, any reasonable restraint can be on the principles of the law. There can be no doubt, principle imposed on the jury. It is said that that there are cases arising, which require extra

the court may set aside the verdict, if it is unordinary remedy beyond the mere money loss ; reasonably large ; but in such cases it is found, and when the early judges allowed the jury dis

that when the judge comes to consider the vercretion to assess beyond the pecuniary damage, dict, he practically looks to the doctrine of actthere being no apparent computation, it was nat

ual compensation, which is supposed to be for ural to suppose that the excess was imposed as a

the time being discarded. The conclusion is, punishment. The courts in subsequent cases

that if the verdict is allowed to stand, it is betook this view, and in many instances were, no

cause it corresponds to the theory of the advo doubt, deceived by the indignation expressed in

cates of compensation, and that of exemplary terms so strongly against the defendant, as to damages has been practically disregarded. "Nelgive rise to the idea that the damages were pu

son J., in Fay v. Parker, before cited, shows, that nitive.

under the latter doctrine there is no inconsistIn spite of the dicta of the courts and the able ency in compensating the plaintiff four times views of Mr. Sedgwick (Law Reporter, April and

over. June 1847) and other jurists, I do not think such In the case of Markham v. - reported in damages can be sustained on principle. The 2 Erskine's Speeches, p. 9, the great barrister arguments of Judge Nelson of New Hampshire Erskine shows, that the words of Lord Kenyon (Fay v. Parker, 53 N. H. 342), and Mr. Greenleaf have been misinterpreted, and never authorized 2 Gr. on Evidence, 235, note, 13th ed.), are the incorporation of criminal remedies into civil more conclusive; and it must become more and procedure. It seems to me, that the mingling more evident to careful thinkers, that the doc- of the criminal principles with the civil, which trine is unsound, and if carried to its legitimate the doctrine necessitates, is altogether wrong. results, that it would be very disastrous. It And even if it be allowable to fine the defendmight seem at first sight (and some writers have ants in a civil court, there seems no reason why taken this view: Hilliard on remedies for Torts plaintiff should be the recipient. It is difficult 440, note a; Field on damages 70), that the dis- to see why a man should receive a fine, to which tinction between exemplary damages, and dam- he is not entitled in right as compensation. If ages given as special or extraordinary compensa the plaintiff is entitled to damages as a matter of tion, is one of words merely; and the effect of right, let him receive them in the proper charallowing the former, is the same as that produced acter of indemnity; if he is not so entitled, there upon the theory of compensation, when this is is no power in any government which can justly extended to cover injury beyond the pecuniary deprive another of his property for plaintiff's benefit. Judicial procedure ought not to be made a will apply to a great many other and later cases, cover for the confiscation of private property. which he has not touched: Greenleaf on Evi

The attempt has been made to bring the doc- dence 235, 13th ed. trine within the constitutional provision, “that There is a large class of decisions supporting no person shall be subject for the same of- the doctrine superficially, which upon analysis, fence, to be twice put in jeopardy of life or really go no farther than to authorize extraordilimb;" and though according to the strict rules nary compensation. The courts speak of “damof interpretation, the objection is not well made, ages beyond compensation," but by the latter yet the spirit of our institutions would seem to word or“ actual compensation,” as some have forbid a civil fine for an offence which could be called it, they mean to cover simply the pecunipunished criminally (Austin v. Wilson, 4 Cush. ary loss proved at the trial. That something 275). As to its being a matter which public beyond this should in certain cases be given, benefit justifies, Lord Commissioner Adam of every one acknowledges; they call it "exemplary Scotland, has said, "a civil court in matters of damages,” but it is compensation, in spite of the civil injury is a bad corrector of morals; it has misnomer. only to do with the rights of the parties :" Beattie v. Bryson, 1 Murr. R. 317.

The spirit of these decisions, however illIf the theory of punishment is to be carried

chosen the words may be, is undoubtedly not in out, consistency would require, that the amount

favor of “punishing the defendant beyond full charged to the defendant should be divided into | indemnity. When the courts speak of giving two parts—the one to be awarded to the injured damages " as compensation to the plaintiff

, and party as compensation, the other to be paid to the

an example to the community,” it is a ridiculous state as in cases of criminal fine. And, moreover,

misuse of words and goes no farther. Com penthere never was the necessity for this doctrine

sation is given because the plaintiff is entitled which eminent judges have supposed. There is

to it, independent of the effect upon the public. indeed this much of justice in it

, that in particular That the assessment often does operate as a punishcases it furnished a means of redressing wrong, when there seemed no other expedient at hand;

the courts have followed the letter rather than and which, though contrary to principle, was

the spirit of decisions, and have deceived the sufficiently effectual. A good result has been judges in after cases by their misuse of terms; often obtained by it, but a comprehensive appli- by authority, than reason. This, in a word, is

while the latter conceive themselves more bound cation of the theory of compensation, would accomplish every purpose in a more rational man

the history of exemplary damages in nearly ner: Meagher v. Driscoll. 99 Mass. 281 ; Filleb

every state where they can be said to be estab

lished. brown o. Hoar, 124 Id. 580. There is no impracticability in calling upon a jury to estimate the Of the class of cases above spoken of, Linsley u. damages with reference to the full injury sus- Bushnell, 15 Conn. 225, is a fair illustration. In tained, taking into consideration not only direct that case, the court elaborates upon the necessity and indirect pecuniary loss, but also the hurt of full and adequate compensation, in disdone to the finer instincts of human nature, If tinction from the mere taxable costs. Malone v. an insult is contemplated, the injury is greater Murphy 2 Kan. 262, decided in Kansas, is anon that account. If the act proceeded from mala other similar case; and the dictum is for exempmens or malice, this fact has caused mental anx- lary damages, as long as they do not conflict iety and vexation, perhaps disgrace, which can with the theory of actual compensation. be accounted for in money,

A careful review of authorities shows, that of And, as is undoubtedly the truth, if in many the states commonly considered as adhering to cases any pecuniary compensation is, from the the doctrine, there are several where a vigorous nature of things, essentially inadequate the courts decision in favor of simple compensation would should not be either deterred thereby from com- be justifiable in view of precedent, as following ing as near as possible to complete compensation, the spirit rather than the words of the decisions. or be made the means of inflicting a criminal This was the condition of things in New Hampfine for injury which the defendant has not shire, before the case of Fay v. Parker fixed the caused. The maxim " causa procima, non remota position of that state beyond question. spectatur," should apply here as elsewhere, and Among the states which now stand in this the defendant be made liable to the extent that middle position, I think I can with reasonable the injury is the result of his wrong, and no fur- certainty name California (Wilson v. Middleton, ther.

2 Cal. 54; Dorsey v. Maplove, 14 Id. 553; Selden There is no doubt extensive authority in this v. Coshman, 20 Id. 56), in this state the subject country to sustain the doctrine of exemplary is now regulated by statute ; Connecticut (Lindamages, but I quesuion very much whether it is sley v. Bushnell, 15 Conn. 225, 267); Indiana as overwhelming as is generally supposed. Dicta (Millison v. Hoch, 17 Ind, 227, but contra Shafer will be found probably in every state which W. Smith, 1 Cent. L. J. 271 ; Iowa (Hendrickson v. seem to support the principle; but we are apt to Kingsbury, 21 Iowa 379); Kansas (Malone o. be misled by mere words. Mr. Greenleaf criti- Murphy, Ž Kan. 262; Hefly v. Baker, 19 Id. 9; cises with considerable success, the authorities Titus v. Corkins, 21 Id. 722); Michigan (Welch chiefly relied on by Sedgwick, and his reasoning 10. Ware, 32 Mich. 77; Daily Post v. McArthur, 16

« PreviousContinue »