The Court
overruled the objection, Houston, J., dissenting.
The editor of the Morning Netoswas then called and sworn as a witness for the defendant, and stated that the paragraph published in that newspaper on the morning of July 23, 1880, and then produced and shown to him, was published on information given to him the evening before by Mr. Tatnall, the plaintiff. It was as follows: “ Mr. Edward Tatnall, the employer pf Mr. Hayden, who is the hero of the elopement detailed in yesterday’s Daily News, says that the latter gentleman is a grown man, trustworthy and competent; that the young woman whom he has made his wife is only a step-daughter of Mr. Courtney, and that she will come, of right, into $10,000 when she is of age.”
Another witness stated he showed the paragraph in the newspaper, on the morning of its publication, to Mr. Courtney, the defendant, and that he appeared very angry when he read it; and that he saw the assault and battery made by him afterwards upon the plaintiff about six o’clock in the afternoon.
In the argument of the case before the court and jury, Emmons, for the plaintiff, cited 2 Greenl. Ev., § 267; Sedw. on Dam., 567.
The Court, Comegys, C. J.,
charged the jury.
Gentlemen of the Jury—Everything, it seems to me, has been said on the part of the learned counsel for the plaintiff and for the defendant that could be said. The facts are very plain and you only need be instructed in the position of the law upon the subject. You find the only person liable in this case is the defendant, and you are to fix the amount of damages which you are to render against him. It has been said that any question about the disgrace or injury of the assault or battery or anything connected with it requires investigation, and determines what amount plaintiff is entitled to at your hands. Upon the other side, they alleged that the damages ought to be merely nominal —only six cents. The sum claimed is five thousand dollars. I will state to you what the law and record of cases of this court says. I will read to- you what I have upon this subject:
1. No words merely, whether spoken or printed or written, however insulting or opprobious they may be, will justify an assault and battery, or an assault even. Therefore, where an action is brought to recover damages for an assault and battery, the plaintiff is entitled to recover a verdict for a nominal sum, although he has not made proof of any actual injury, the law presuming that he has received some damage.
2. Where the plaintiff proves that he sustains actual damage by the defendant’s attack, he is entitled to recover as much in value as his proof showed he suffered, whatever the amount may be.
3. When the plaintiff shows that the attack upon him was wanton or malicious without any provocation and the wrong inflicted was grievous, the jury may give him damages without reference to actual injury but by way of punishment and example. Such damages are in the reasonable discretion of the jury in view of all facts and circumstances proved. When thus given they are not mere compensation to the plaintiff, but are called punitive, vindictive or exemplary, and are by way of public example or punishment.
4. In estimating these damages, the jury may take into account, and should consider the • circumstances of time and place of the attack, the mode of making it, the insult to the plaintiff, his suffering of body and mind, and any other fact that enhanced the injury of the plaintiff, and they may consider the pecuniary means of the defendant in awarding them.
5. That while the jury in a case of malicious assault and battery may give exemplary damages and fix them by considering the defendant’s circumstances, as one of the elements of their calculation, yet the punishment thus inflicted by them or the example made should bear some proper relation to the main fact, and not be merely arbitrary.
6. In actions of assault and battery, when exemplary damages are claimed, the defendant may in mitigation of them exhibit to the jury any relevant facts showing reasonable provocation. This is not in justification of the assault, but to negative the allegation of malice, and if the provocation be very great, and was so recent as to lead to the presumption that it was committed under the immediate influence of the passion thus wrong fully excited, the jury will be warranted in regulating the amount accordingly, but the jury should be well satisfied that the assault was the offspring of such passion and that there was no time for it to cool down. Abb. Trial Ex., 650.
7. In the case now on trial the jury are warranted by the testimony, if they credit it, in giving exemplary or punitive damages against the defendant, unless they find that the newspaper article in evidence was calculated to excite and did excite violent passion in the defendant, and that under its immediate influence he committed the assault. But if, on the contrary, they should either find that the article was not calculated to have any such effect, or if it were so calculated, yet the blood of the defendant had sufficient time to cool, and that at the time of the attack he was acting under the influence, not of impulsive, uncontrollable passion, but of revenge, then his act was malicious, and is punishable with a verdict of exemplary damages, and the publication is no palliation and no mitigating circumstance in the award of damages.
The plaintiff had a verdict for one thousand dollars.