Citations
- 81 Ohio St. 204
Full opinion text
Davis, J.
The testimony clearly shows that the plaintiff below, defendant in error here, was one of a party of men who were creating some disturbance in a street car. Whether or not it would be regarded in that locality as “disorderly conduct” is not for us to say, for there seems to be some dispute about it; but it is certain that the conduct of the party was such as was likely to mar the comfort of peaceable and well behaved passengers in a public conveyance, especially of ladies. There were some white women and also three colored women in the car, the latter sitting in front of and near to the plaintiff and his friends. The testimony tends to prove that something passed between the plaintiff and his party and the colored women which caused the latter to get up and leave the car by the rear door, in a manner indicating displeasure ; and that as they left the car they said to the conductor: “If we can’t ride without being insulted we will get off” and “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” There is testimony tending to prove that at the time this occurred, the conductor had already warned the men once, and perhaps twice. Under these circumstances, the court instructed the jury, as to what was said by the colored women when leaving the car. that if'these words were not spoken in the hearing of the plaintiff, or loud enough to be heard by him, they should entirely disregard what was said.
We do not understand that this evidence was offered for the purpose of proving that the plaintiff and his companions were intoxicated and had insulted the women. In other words it was not offered as an admission by reason of he failure of the plaintiff to deny the statement. If that were the sole purpose of the introduction of the evidence and the sole effect of it,- there would be nothing objectionable in the instruction to the jury. We are all of the opinion, however, that this evidence was competent as part of the res gestee whether the words were, or could have been, heard by the plaintiff or not; but it was also in issue in the case, whether the plaintiff had been unlawfully ejected from the car, and it was also a question whether the defendant’s servants acted with malice or insult towards the plaintiff. To maintain the issues on its part the defendant was not only entitled to show the actual conduct of the plaintiff but the effect of it on the passengers and the complaints of the latter in regard to it, in order to show that its servants acted justifiably and without malice. It cannot, with any reason, be said that such complaints must be made in the presence or hearing of the offender. In this aspect of the case we regard the charge of the court as erroneous and highly prejudicial.
Again, the court proceeded to correctly define the circumstances under which, if found by the jury, they might award to the plaintiff not only compensatory damages, but in addition thereto exemplary or punitive damages. The court even cautioned the jury that they should not award exemplary damages, unless they should find that the expulsion of the plaintiff from the car “was done not* only without justification, but in a malicious and insulting manner.” The court then proceeded to say: “Otherwise you should only allow such an amount as would fairly compensate him * * * . And as a matter of compensation you would have a right to alloy him a reasonable amount for the services of his counsel in bringing arid maintaining this action against the company.” In this last sentence, we think that the court fell into a serious error.
Although the doctrine announced in Roberts v. Mason, 10 Ohio St., 277, has never been universally accepted in the other states, yet from that time to the present it has been the settled law of Ohio, that in cases involving the elements of fraud, malice or insult, the jurv may award exemplary or punitive damages in addition to damages merely compensatory; and that “in such a case” the jury may include reasonable counsel fees in their estimate of compensatory damages. Roberts v. Mason, ut supra; Atlantic & Great Western Ry. Co. v. Dunn, 19 Ohio St., 162; Finney v. Smith 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; Peckham Iron Co. v. Harper, 41 Ohio St., 100; Railroad Co. v. Scott, 56 Ohio St., 736. Contra, Kelly v. Rogers, 21 Minn., 146.
But, although we have made a somewhat extended search, we are not aware of anv well considered case in which it was held that, in the absence of statute or express agreement, attorney’s fees might be included ■ as part of the damages where compensatory damages only could be allowed. There are, however, numerous cases in which the contrary doctrine has been distinctly announced and applied. We cite a few of them. Burruss v. Hines, 94 Va., 413, 420; St. Peter’s Church v. Beach, 26 Conn., 355; Eatman v. Railway Co., 35 La. An., 1018; Welch v. Railroad Co., 12 S. Car., 290; Lincoln v. Railroad Co., 23 Wend. (N. Y.), 425; Day v. Woodworth, 13 How. (U. S.), 363; Flanders v. Tweed, 15 Wallace, 450; Joslin v. Teats, 5 Colo. App., 531; Spencer v. Murphy, 6 Colo. App., 453.
Finney v. Smith, 31 Ohio St., 529, is chiefly relied upon to support the rule of damages given to the jury in this case. Finney v. Smith was an action for libel and, in interpreting the language of the court, it should not be forgotten that, when an alleged libel is shown to be false, malice is presumed. In such a case, evidence in mitigation only tends to rebut malice, but it cannot amount to a complete defense or justification. Therefore, so long as the presumption of malice is not entirely overcome the rule of damages laid down in Roberts v. Mason applies; that is compensatory damages, including counsel fees and, in addition if the jury see fit, exemplary damages. In Finney v. Smith the court notes the fact (p. 535) that the record contains evidence tending to establish the charge made in the petition and also evidence tending to show that the defendants may have acted under a misapprehension and so the court say, “The clause of the charge excepted to, is not drawn with accuracy and fullness of expression m itself, but, when taken in connection with the whole charge, which is set out, we do not find it erroneous; and we see no reason to apprehend that the jury could have been misled by it to the prejudice of defendants.” In our view of the case, the few lines of opinion by Boynton, J., ring clear and true. and meet our approval.
Indeed, it is difficult to understand how the rule of damages given to the iury in this case, can be worked out in harmonv with Roberts v. Mason, 10 Ohio St., 278, in which it was said that, “the better opinion now seems to be, that in actions ex contractu, arid in cases nominally in tort, but where no wrong in the moral sense of the term is comnlained of, the fees of counsel ought not to be included in the estimate of damages;” and, as it was said by Mr. Justice Grier, in Day v. Woodworth, ut supra, “it is a moral offense of no higher order, to refuse to pay the * * * damages for a tresoass. which is not wilful or malicious, than to refuse the payment of a just debt.”
The court below properly said to the jury that if they should find that the ejectment of plaintiff from the car was not justified, but was not done with malice or in an insulting manner, they could award compensatory damages only; but the court erred in instructing the jury, in that connection, that, in case they should so find, as a matter of compensation they might allow to the plaintiff a reasonable amount for services of his counsel.
The judgment of the circuit court and .that of the court of common pleas are therefore
Reversed.
Crew, C. J., Summers and Shauck, JJ., concur.
Price, J.,
dissenting. I am satisfied with' the reversal of the case on the first ground stated in the syllabus and in the opinion, but the second ground, in my opinion, should not be declared to be the law in Ohio.
The plaintiff in the court of common pleas sued to recover damages resulting from an assault made on him by the servants of the defendant company, and it is alleged that the plaintiff was violently seized and tightly grasped by the servant, and forcibly pushed along the aisle of the car, and ejected therefrom, whereby the plaintiff not only suffered mental and physical pain, but was humiliated by the acts and violence of the servant.
The defendant pleaded facts — disorderly conduct, etc. — in justification of the acts of its servants in eiecting the plaintiff. The issues made a case in which it was entirely proper and necessary that the court instruct the jury as to the rule of compensatory and that of exemplary damages, for there was evidence introduced which tended to support plaintiff’s charge. As I understand the majority opinion and the second branch of the syllabus, the right of the jury to allow counsel fees as an element of comnensatory damages, is contingent upon a finding by the jury that a case was made out for exemplary damages; and if a case for exemplary damages is not made out, counsel fees cannot be considered in awarding compensatory damages. This contingency seems unwarranted by the well settled law of this state. Compensatory damages in such actions sounding in tort — assault and battery, and similar acts of personal violence — are to be awarded as compensation for the wrong inflicted, and the compensation should be adequate in so far as the law will afford it.
As often said in the books and decisions, exemplary damages or punitive damages are awarded to make an example of the offending party so that others may be deterred from committing similar wrongs; or, if not as a deterrent, then as punishment of the wrongdoer.- These are not awarded as compensation to the injured party, but for the purpose already stated, and why, after the jury has concluded that there should be exemplary damages awarded,' shall it then go back and again take up the subject of compensatory damages and add the fees of counsel? The trial court could not anticipate what the verdict would be — whether it would include exemplary damages or not, and it attempted, and I think correctly; to lay down the measure as to each kind of damage.
There ought not to be any misunderstanding of what this court has decided upon this question. Commencing with Stevens v. Handly, Wright, 121, and Sexton v. Todd, Wright, 316, we find the rule of damages stated. In Stevens v. Handly, supra, which was a slander case, the court lays down the rule on page. 122, as follows: “But if the words were uttered under circumstances merely mitigating, without justification or excuse, the damages should be compensatory; that they should be sufficient to cover all the expenses and costs of the plaintiffs in litigating the matter, including their loss of time — such as will make them whole. Where the words are spoken without justification, excuse ¡or other mitigating circumstances, the damages should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it.” We have .in that case an instance where, there were circumstances in mitigation, and not of wantonness, and yet a right of the injured party to compensatory damages, including all expenses, distinctly recognized.
Sexton v. Todd, supra, is on the same line. These two cases were reviewed and approved in Roberts v. Mason, 10 Ohio St., 277. Some language in the opinion of the court might be clearer and less confusing, but the syllabus, which is the law of the case, seems entirely plain. It is: “(1) In an action to recover damages for a tort (not merely a slander or libel) which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages; and this they mav do although the defendant may have been punished criminally for the same wrong. (2) In such a case the jury mav, in their estimate of compensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of the action.”
The counsel fees are classed with compensatory damages and they form no part of the exemplary damages, and are not to be awarded as part of the same. . In Finney- v. Smith, 31 Ohio St., 529, and cited in the majority opinion in this case, this court reviews the cases in Wright’s Report already cited and Roberts v. Mason, and points out the difference between the syllabus and some language of the judge writing the opinion in Roberts v. Mason, supra, which was a ft assault and battery case. The syllabus in Finney v. Smith, supra, is: “In an action for libel, the jury may, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation, not amounting to a justification.” The questions presented to the court in that case called for just such a clear statement of the law, and while Boynton, J., was not willing to place his concurrence on that proposition, he does not controvert it, nor endeavor to show its weakness.
We have not space to quote from the case at greater length. The opinion refers to and approves other authorities which support the doctrine.
Therefore the trial court did not err in that part of the charge relating to compensatory damages. This, like Roberts v. Mason, was an assault and battery case, leading to ejectment from a car. It is a case sounding in tort, in which both compensatory and exemplary damages might be awarded, and it seems to me the trial judge correctly stated the law to the jury on that subject.
Spear, J., concurs in the dissenting opinion.