Moody v. McDonald

Appeal from the Superior Court of the City of San Francisco.

This was an action brought by plaintiffs to recover damages from the defendant for injuries sustained by plaintiff’s wife, on the 23d day of June, 1853, by reason of the carelessness and negligence of the defendant, by his agents and servants, in recklessly and improperly discharging a blast, at defendant’s stone quarry, and by neglecting to give proper notice thereof. The damages were laid at $3,000,

Defendant denied all the allegations of the complaint.

The cause was tried on the 15th day of September, 1853. After the evidence on both sides was offered, the Court charged the jury that they must render a verdict for the plaintiffs, etc. If the jury believed that due diligence and care were not exercised, they were at liberty to give smart money; if the jury, however, believed that due diligence and care were used, the jury are not to give punitive damages. The defendant excepted to the charge of the Court. The jury came into Court, and upon being asked- how they found, the foreman stated that they found for the plaintiff in the sum of $5,000; $2,500 for actual damages, and $2,500 for smart money.

The defendant’s attorney requested the Court to direct the Clerk to record the verdict as rendered by them. Tho Court stated that the verdict must be recorded entire, and declined to direct the Clerk to record it as given in. The foreman of the jury then stated that their verdict [298] was for the plaintiffs, in *the sum of $5,000. The defendant excepted to the ruling of the Court in refusing to have the verdict recorded as the jury first rendered the same.

Plaintiffs’ counsel filed a remittitur for the sum of $2,000 over and above the $3,000 damages laid in the complaint, and took judgment for $3,000 damages and costs, against the defendant, who moved for a new trial, which was denied; whereupon he appealed from the judgment and the order refusing a new trial.

The pursuit of the appellant was a lawful one. The true rule in such cases is laid down in 21 Wend. 618. One so engaged, accidentally doing damages, is not responsible, unless the injury was the result of his negligence, or done wilfully. (8 Wend. 472; 8 John, 92.) No negligence was shown. Even if there had been negligence, the jury could not give smart money. The injury to the plaintiffs was all they claimed redress for; not punishment to the defendant. (See Law Reporter for 1847.) Yindictive damages are not authorized when there is no malice, and this rule applies equally to cases of injury to persons as well as to property. (13 Johns. 131; 23 Wend. 425; Baldwin C. C. R. 142; 9 Barn. .% Cress. 725; 4 Carr. & Payne, 161; Sedgwick on Damages, 548-9, 570.)

The defendant was liable, even if negligence had not been alleged or proved. (2 N. Y. 160, and cases there cited.) When there is conflicting evidence on a point submitted to a jury, their verdict will not be disturbed. (1 Cal. 373; 2 lb. 17.) This Court have held that vindictive damages, i. e., smart money, may be given in a civil action for a personal injury. (2 Cal. 54; Sedgwick on Damages, 453, 468, and cases cited.) The power to grant new trials is one of legal discretion, and only the abuse of it would justify an appellate Court in interfering with such order. (2 Cal. 177; lb. 348.) There was no such abuse in this case.