Howell v. Scoggins

By the Court, McKinstry, J.: This was an action for an assault and battery. The Court instructed the jury: “In actions of aggravated as-

sault and battery, the jury are not limited in assessing damages to mere compensation, but may give exemplary damages, and may take into consideration the plaintiff’s expenses in the prosecution of the suit.” In a note at the 'foot of this charge, Hilliard on Remedies for Torts, and Sedgwick on damages are cited as authority for it.

Hilliard, at the page referred to (442), only says that it “has sometimes been held” that the jury may take the plaintiff’s expenses into consideration.

The instruction given would authorize a jury to take into consideration all the plaintiff’s expenses.

But in Connecticut—one of the States in which it has been held -that the probable expenses of the plaintiff may be considered by the jury as part of the exemplary damages—it has also been decided that the jury cannot take into consideration the taxable costs paid by plaintiff, and which he would recover of defendant as an incident to the judgment, otherwise the defendant would pay the'se costs twice. (Beecher v. Derby Bridge Co. 24 Conn. 132 and 491.)

The bald question presented by the charge is whether the jury can guess at the probable amount paid, or agreed to be paid, by the plaintiff to his counsel, or at the amount of his other expenses, and include such amount in their estimate of exemplary damages.

In a note to the sixth edition of Sedgwick’s Measure of Damages (p. 111), it is said: “It is difficult to see why such expenses should be allowed under the head of ‘ exemplary damages.’ There is nothing especially punitory, as regards the defendant, in the fact that the sum in which he [357]is mulcted happens in whole or in part to represent the counsel fees paid or incurred by his injured adversary.”

Except that taxed costs are never allowed, the law, as laid down in the charge, accords with the views expressed by the Supreme Court of Connecticut and of Alabama.

But after full consideration it was held by the Supreme Court of the United States (Day v. Woodworth, 13 How. 371), that the jury have no right, in actions of trespass, whatever the circumstances of aggravation, to include in their verdict any sum to indemnify the plaintiff for counsel fees, or other real or supposed expenses, over and above taxed costs.