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ing the basis of damages the ability of the offending person to pay, rather than the injury done, as finding "no sanction in principle," and said that, if applied, the rule would "lead to results most embarrassing in the administration of justice," several of which results the court mentions specifically.
Punitive damages are not allowed in Nebraska, and the supreme court of that state declared in Rosewater V. Hoffman (1888) 24 Neb. 222, 38 N. W. 857, that evidence of the wealth of a defendant is incompetent in a defamatory action, to show the standing and influence of the defendant as bearing on compensatory damages.
Morris v. Barker (1847) 4 Harr. (Del.) 520, was a nisi prius case of which the report shows only that the evidence was offered by the defendant and excluded by the court. Nailor v. Ponder (1895) 1 Marv. (Del.) 408, 41 Atl. 88, was also a nisi prius case in which Lore, Ch. J., in charging the jury, told it that in estimating the damages it should consider the rank and influence of the defendant in the community, but not his pecuniary condition, as "the damages are to be measured by the injury done, and not by the poverty or riches of either the plaintiff or defendant." II. View that pecuniary circumstances
a. In general. The general rule that the pecuniary condition of the parties is immaterial in civil cases is in harmony with the idea that rich and poor stand alike before the law, but it seems that in certain cases the courts universally consider the financial condition of one or the other of the parties pertinent, and a class of cases which has found wide support is that where damages are sought for a libel or slander. And, while it may be said that by the decided weight of judicial authority the pecuniary condition of the defendant in a defamatory action is a proper consideration for the jury in determining the amount of damages to be awarded, the cases are not in harmony as to the purposes for which evidence of the fact may be considered, or as to the method of proof.
b. On behalf of plaintiff.
1. Generally. A number of the cases examined ap. parently recognize the rule with no qualifications, or do not disclose the theory under which the circumstance of wealth or poverty is considered rele. vant.
United States. Calderin v. Heral. do Español (1908) 4 Porto Rico Fed. Rep. 383.
Idaho.-Dwyer v. Libert (1917) 30 Idaho, 576, 167 Pac. 651.
Illinois. — Hosley v. Brooks (1858) 20 Ill. 115, 71 Am. Dec. 252; Harbison v. Shook (1866) 41 Ill. 141; Holmes v. Holmes (1872) 64 Ill. 294; Storey v. Early (1877) 86 Ill. 461; Schmisseur v. Kreilich (1879) 92 Ill. 347; Hintz v. Graupner (1891) 138 Ill. 158, 27 N. E. 935; Geringer v. Novak (1904) 117 Ill. App. 160; Beeson v. H. W. Gossard Co. (1912) 167 Ill. App. 561; Gallagher v. Singer Sewing Mach. Co. (1913) 177 Ill. App. 198; Slaughter v. Johnson (1913) 181 Ill. App. 693; Mercy v. Talbot (1914) 189 Ill. App. 1; O'Malley v. Illinois Pub. & Printing Co. (1915) 194 Ill. App. 544; Dowie v. Priddle (1905) 216 Ill. 553, 75 N. E. 243, 3 Ann. Cas. 526. But compare Szimkus v. Ragauckas (1914) 189 Ill. App. 407, holding evidence of wealth admissible only if malice is shown to entitle the plaintiff to punitive damages. But see cases infra, II. a, 2.
Indiana.—Binford v. Young (1888) 115 Ind. 175, 16 N. E. 142; Miller v. Cook (1890) 124 Ind. 101, 24 N. E. 577; Fowler v. Wallace (1891) 131 Ind. 347, 31 N. E. 53. Compare Wilson v. Shepler (1882) 86 Ind. 275. And see Taber v. Hutson (1854) 5 Ind. 322, 61 Am. Dec. 96.
Iowa.-Karney v. Paisley (1862) 13 Iowa, 89 (distinguished in Guengerech v. Smith (1872) 34 Iowa, 348, an action for assault); Hunt v. Chicago & N. W. R. Co. (1868) 26 Iowa, 363 (dictum); Herzman v. Oberfelder (1880) 54 Iowa, 83, 6 N. W. 81; Perrine v. Winter (1887) 73 Iowa, 645, 35 N. W. 679; Bailey v. Bailey (1895) 94 Iowa, 606, 63 N. W. 341; Mills v. Flynn (1912) 157 Iowa, 477, 137 N. W. 1082; Hahn v. Lumpa (1912) 158 Iowa, 560, 138 N. W. 492; Cain v. Osler (1914) 168 Iowa,
59, 150 N. W. 17, Ann. Cas. 1918C, exemplary damages were to be awarded 1126. Compare Sclar v. Resnick, infra, was a question for the jury, and "in II. b, 3.
case of slander evidence that the deLouisiana. Fatjo v. Seidel (1903) fendant is wealthy is admissible.” 109 La. 699, 33 So. 737; Meyers v. The effect of Holmes v. Holmes (1872) Fusilier (1917) 141 La. 131, 74 So. 64 Ill. 294, supra, seems to be that the 790.
jury should be directed not to consider Massachusetts.—See Bodwell v. Os- the defendant's wealth as a separate good (1825) 3 Pick. 385, 15 Am. Dec. item, but when taken with all the cir228 (where the court considered de- cumstances tending to aggravate or fendant's "wealth, and influence” in mitigate damages. holding a verdict not excessive), and
2. Exemplary, punitive, vindictive Shute v. Barrett (1828) 7 Pick. 82.
damages; actual wealth. The inference is that in the majority of the cases cited above the evidence
The majority of the cases holding was held competent as bearing on
the financial condition of the defendpunitive damages. Vide infra, II. b, 2. ant a material inquiry in a defamatory
As to the propriety of the rule ad- action do so upon the theory that in mitting evidence as to the defendant's all malicious torts where, in addition financial circumstances, the Iowa su
to the compensatory damages given to preme court said in Karney v. Paisley make whole the plaintiff's injury, (Iowa) supra: "Experience has not “added damages” are allowed by way shown the propriety of abolishing such of punishment to the defendant for rules upon the ground that they are
his wilful conduct, and as an example liable to abuse. It is always in the
to others to refrain from such acts, the power of the court, in its instructions amount of added damages must bear to the jury, to guard them against an
a ratio to the resources of the person improper use of such evidence." The punished in order to effect the purrule adopted in the Karney Case was pose of such damages. While this rule doubted in Herzman v. Oberfelder
has not met with universal approval (1880) 54 Iowa, 83, 6 N. W. 81, and (see cases supra, I.), it has been said Perrine v. Winter (1887) 73 Iowa, 645, to be a necessary corollary of puni35 N. W. 679, supra, and the court in
tive damages. The following cases Bailey v. Bailey (1895) 94 Iowa, 606, have been found, which hold the de63 N. W. 341, supra, while admitting fendant's financial condition a proper that the evidence is admissible on be
consideration for the jury in awarding half of the plaintiff in defamatory ac
punitive damages in an action for libel tions, held that in an action containing
or slander, and that the plaintiff may counts for slander and alienation of
introduce evidence to aid the jury in affections, an instruction upon dam- determining his circumstances: ages relative to the latter count, that
United States. Washington Gasthe jury might consider the rank and
light Co. v. Lansden (1899) 172 U. S. condition of the parties, was irregular, 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296; as the condition in life of the defend
Brown v. Evans (1883) 8 Sawy. 488, 17 ant in the particular case could in no
Fed. 912; Buckeye Cotton Oil Co. v. way affect the amount of damages re
Sloan (1918) 163 C. C. A. 44, 250 Fed. coverable.
712 (in a later appeal before the same In Dowie v. Priddle (1905) 216 Ill. court the point was not reconsidered 553, 75 N. E. 243, 3 Ann. Cas. 526, (1921; C. C. A.) 272 Fed. 615). supra, it was contended by counsel for California. - Barkly V. Copeland defendant that since the case was not (1887) 74 Cal. 1, 5 Am. St. Rep. 413, 15 one in which punitive damages could Pac. 307; Greenberg v. Western Turf be recovered, it was error to admit evi- Asso. (1903) 140 Cal. 357, 73 Pac. dence of defendant's financial standing 1050; Tingley V. Times Mirror Co. (which fact had been admitted on (1907) 151 Cal. 1, 89 Pac. 1097; Marthe trial), but the court dismissed riott v. Williams, 152 Cal. 705, 125 Am. the contention, saying that whether St. Rep. 87, 93 Pac. 875; Scott v. Times Mirror Co. (1919) 181 Cal. 345, 12 ter (1855) 32 N. H. 467. Compare A.L.R. 1007, 184 Pac. 672.
Knight v. Foster (1859) 39 N. H. 582. Connecticut. See Bennett v. Hyde, New Jersey. Flaacke v. Stratford infra, II. b, 3.
(1905) 72 N. J. L. 487, 64 Atl. 146, 5 Florida.-Jones v. Greeley (1889) 25 Ann. Cas. 854; Weiss v. Weiss (1920) Fla. 629, 6 So. 448.
95 N. J. L. 125, 112 Atl. 184; Bahrey v. Georgia.—Tolleson v. Posey (1861) Poniatishin (1920) 95 N. J. L. 128, 112 32 Ga. 372. See also Pavlovski V.
Atl. 481. Thornton (1892) 89 Ga. 829, 15 S. E. New York.--Fry v. Bennett (1855) 822.
4 Duer, 247. But see Lewis v. ChapIllinois. Flagg v. Roberts (1873) man (1855) 19 Barb. 252, reversed in 67 Ill. 485; Gaines v. Gaines (1903)
(1857) 16 N. Y. 369. 109 Ill. App. 226; Reeves v. Roth North Carolina.—Adcock v. Marsh (1912) 179 Ill. App. 95; Mercy v. Tal- (1848) 30 N. C. (8 Ired. L.) 360; bot (1914) 189 Ill. App. 1. See also Reeves v. Winn (1887) 97 N. C. 246, 2 Illinois cases supra, II. b, 1.
Am. St. Rep. 287, 1 S. E. 448. And see Kansas. Winans V. Chapman
Bowden v. Bailes (1888) 101 N. C. 612, (1919) 104 Kan. 664, 180 Pac. 266.
8 S. E. 342. Kentucky. See Ross v. Ross (1844)
Ohio.—Stevens v. Handly (1832) 5 B. Mon, 20.
Wright, 121; Waggoner v. Richmond Maine. Humphries v. Parker (1832) Wright, 173; Sexton v. Todd (1864) 52 Me. 502; Stanwood v. Whit- (1833) Wright, 316; Hayner v. Cowden more (1874) 63 Me. 209; Johnson v. (1875) 27 Ohio St. 292, 22 Am. Rep. Smith (1875) 64 Me. 553; Jones v. 303; Steen v. Friend (1900) 11 Ohio Grindal (1922) 121 Me. 348, 117 Atl. C. D. 235, 20 Ohio C. C. 459; Mauk v. 308.
Brundage (1903) 68 Ohio St. 89, 62 Maryland.—Wilms v. White (1867) L.R.A. 477, 67 N. E. 152. See also Al26 Md. 380, 90 Am. Dec. 113; Cairnes pin v. Morton (1871) 21 Ohio St. 536. v. Pelton (1906) 103 Md. 40, 63 Atl.
Oklahoma.—Smith v. Autry (1917) 105. And see Groh v. South (1913) 69 Okla. 28, 169 Pac. 623. 121 Md. 641, 89 Atl. 321.
Pennsylvania.—M'Almont v. M'ClelMissouri.-Buckley v. Knapp (1871)
land (1826) 14 Serg. & R. 359; Mix v. 48 Mo. 152; Trimble v. Foster (1885)
North American Co. (1903) 29 Pa. Co. 87 Mo. 49, 56 Am. Rep. 440; Taylor v.
Ct. 137. And see Matheis v. Mazet Pullen (1899) 152 Mo. 434, 53 S. W.
(1894) 164 Pa. 580, 30 Atl. 434, and 1086; Carpenter v. Hamilton (1904)
Harter v. Whitebread (1909) 38 Pa. 185 Mo. 603, 84 S. W. 863; Cook v.
Super. Ct. 10. Globe Printing Co. (1910) 227 Mo. 471,
South Carolina. Rowe v. Moses 127 S. W. 332; Sotham v. Drovers (1856) 43 S. C. L. (9 Rich.) 423, 67 Teleg. Co. (1911) 239 Mo. 606, 144 S. Am. Dec. 560; Burckhalter v. Coward W. 428; Unterberger v. Scharff (1892) (1881) 16 S. C. 435. And see Webber 51 Mo. App. 102; Arnold v. Sayings Co.
v. Jonesville (1913) 94 S. C. 198, 77 S.
E. 860. (1897) 76 Mo. App. 159; Leavell v. Leavell (1905) 114 Mo. App. 24, 89 S.
Tennessee.-Price v. Clapp (1907) W. 58 (later appeal in (1907) 122 Mo.
119 Tenn. 433, 123 Am. St. Rep. 730, App. 654, 99 S. W. 460); Williamson v.
105 S. W. 864. But compare Dush v.
Fitzhugh (1879) 2 Lea, 307. Eckhoff (1914) 185 Mo. App. 234, 170
Vermont.-Rea v. Harrington (1886) S. W. 322; Cotton Lumber Co. v. La
58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475; Crosse Lumber Co. (1918) 200 Mo.
Kidder v. Bacon (1900) 74 Vt. 263, 52 App. 7, 204 S. W. 957; Hickman v. Nel
Atl. 322. son (1919) - Mo. App. — , 211 S. W.
Wisconsin. Bradley v. Cramer 131.
(1886) 66 Wis. 297, 28 N. W. 372; Montana.-Downs v. Cassidy (1913) Buckstaff v. Hicks (1896) 94 Wis. 34, 47 Mont. 471, 133 Pac. 106, Ann. Cas. 59 Am. St. Rep. 853, 68 N. W. 403. See 1915B, 1158.
also Gagen v. Dawley (1916) 162 Wis. New Hampshire.-Symonds v. Car- 152, 155 N. W. 930; Robinson v. Eau Claire Book & Stationery Co. (1901) no practical sense exemplary, when 110 Wis. 369, 85 N. W. 983.
imposed upon a person whose property England. - Huckle v. Money (1763) and income were very much larger.” 2 Wils. 206, 95 Eng. Reprint, 768.
And the idea has been expressed Contra: Michigan cases cited in- elsewhere that the cases holding that fra, II. b, 3.
evidence of the defendant's wealth is It must be noted that the foregoing relevant where punitive damages are collection of cases is not exhaustive of recoverable hold so because “the damthe authorities which support the rule ages which would operate as a proper that in determining the amount of punishment to one man might be inpunitive damages to be awarded for a adequate to that effect upon another, tort the jury may properly consider by reason of their difference in pethe pecuniary circumstances of the cuniary condition; and, on the conparties, inasmuch as there are a num- trary, a verdict that would be scarcely ber of other tort actions-e. g., ma- regarded by a wealthy man might be licious prosecution, assault, malicious ruinous to a poor man.” Handy, J., in trespass, seduction, etc.-in which the Bell v. Morrison (1854) 27 Miss. 68 jury is usually allowed to consider the (holding such evidence admissible in defendant's financial condition in as- an action for assault, and saying it is sessing punitive damages. See anno- necessary to consider the defendant's tation in 16 A.L.R. 838, as to evidence financial condition in all cases where of the pecuniary circumstances of the exemplary damages are recoverable). parties as bearing on exemplary dam- And the argument was forcefully made ages in actions for assault. No case in Guengerech v. Smith (1872) 34 has been found in which any distinc- Iowa, 348, an action for assault and tion has been drawn between any of battery, wherein the majority held evithis class of torts in respect of this dence of defendant's wealth inadmissiquestion, it being often broadly assert- ble in computing exemplary damages, ed that the wealth of the defendant is but admitted that such evidence is ada material consideration in all cases missible in defamatory actions. Beck, where punitive damages are sought Ch. J., dissenting, argued that in cases (see Courvoisier v. Raymond (1896) where exemplary or punitive damages 23 Colo. 118, 47 Pac. 284, an action for are recoverable, as "the law permits an assault), and it seems that a court such damages to be recovered for the which has held the consideration prop- correction and punishment of the deer in a tort action of a class other than fendant, and as an example to the for a defamation as determinative of community,
it is plain that a punitive damages would fall in line verdict of a few dollars, which would with the authorities cited above. For operate as a punishment if assessed a collection of the early authorities on against a poor man, would utterly fail all this class of torts, see note in 67 to have that effect upon a man of Am. Dec. 565.
wealth. Verdicts for punitive damWhile there may be exceptional cas- ages ought, therefore, to be graduated es (see opinion in Palmer v. Haskins according to the ability of the offender (N. Y.) supra, I.) it cannot be denied to pay. Nothing else would be just or that as a general rule damages as
reasonable." sessed by way of punishment, for ex- The general rule is that, where puniample, or as “smart money,” must, to tive damages are recoverable, the jury be effective, bear some relation to the should be permitted to consider all the total resources of the person punished. circumstances surrounding both parAs said by Kent, Ch. J., in Fry v. Ben- ties, including financial condition, nett (N. Y.) supra: "It cannot be an social status, size of family, ete. indifferent consideration whether a Huckle v. Money (Eng.) supra. The defendant is rich or poor. Damages Huckle Case was not for a defamation, which would be exemplary when in- but libel and slander are mentioned flicted upon a person in moderate cir- among the actions in which "the state, cumstances would be trivial, and in degree, and quality" of the parties should be considered in awarding dam- the wealth of defendant for the purages, and the case presents the only pose of increasing damages depends authority whch can be found in the upon the question whether the damEnglish books touching on the subject. ages to be allowed are compensatory or
Such is the reason of the rule, and punitive in their nature. In the forwhile it is open to some objection (see mer case the damages are enhanced by supra, I.), it would seem to be neces- the reputation of the defendant as to sary in measuring punitive damages, his circumstances and standing, and and little harm seems to arise from the therefore the evidence should relate to rule where the jury is cautioned . his reputed wealth and standing. In against allowing its knowledge of the the other case the inquiry should be as defendant's ability to respond to be to his actual pecuniary ability, and put to an improper use.
hence the amount of his property Inasmuch as, under the theory sup- should be stated by persons having ported by the above cases, the jury is knowledge of the subject.” allowed to consider the financial con- The supreme court of Wisconsin redition of the defendant as a basis by fused in Draper v. Baker (1884) 61 which to graduate punitive damages, Wis. 450, 50 Am. Rep. 143, 21 N. W. it would seem necessary that the in- 527, to follow the rule represented by quiry as to his resources should be the foregoing cases, and held that the definitely confined to his actual or ap- financial condition of the defendant proximate means.
While it appears can be shown by proof of his reputed that, in the majority of them, evidence wealth. The court quoted with apwas given as to the actual condition of proval a statement made by an Illinois the defendant's finances, the point court (in White v. Murtland (1873) 71 made above is not brought out in the III, 250, 22 Am. Rep. 100), which, after majority of the cases. But a number an observation that “the practice has of the cases insist that, in so far as grown up, though not generally custhe jury is allowed to consider the de- tomary, of raising a sort of collateral fendant's circumstances to determine issue upon the question of pecuniary punitive damages, evidence touching circumstances, involving a detail as to on that subject should be limited to his lists, kind, and value of property. actual means. Johnson v. Smith
This is not within the purpose or scope (1875) 64 Me. 553 (approved in Webb its admissibility_"said that "the v. Gilman (1888) 80 Me. 188, 13 Atl. inquiry in the first instance should be 688. And see rule applied in Jones v. general, whether the party be in poor, Grindal (1922) 121 Me. 348, 117 Atl. moderate, or good circumstances; if 308); Leavell v. Leavell (1905) 114 good, how good, leaving special inMo. App. 24, 89 S. W. 58 (subsequent quiries to be made on cross-examinaappeal in (1907) 122 Mo. App. 654, 99 tion." The court further said that S. W. 460); Downs v. Cassidy (1913) while the defendant's actual wealth 47 Mont. 471, 133 Pac. 106, Ann. Cas. may be proved in cases where exem1915B, 1158; Weiss v. Weiss (1920) 95 plary damages are recoverable, his reN. J. L. 125, 112 Atl. 184; Bahrey v. puted wealth may also be given in eviPoniatishin (1920) 95 N. J. L. 128, 112 dence, giving as another reason for its Atl. 481; Rea v. Harrington (1886) 58 conclusion the opinion that in most Vt. 181, 56 Am. Rep. 561, 2 Atl. 475. cases "evidence of reputed wealth
Whether the actual or reputed pe- would be the only evidence the plaincuniary circumstances of the defend- tiff could make upon the point, and in ant are to be inquired into has been cases where such reputed wealth is not briefly explained in Weiss v. Weiss to conclude the defendant, he always (1920) 95 N. J. L. 125, 112 Atl. has it in his power to present the real 184 (holding evidence of defendant's facts to the jury in answer to the genwealth admissible on behalf of plain- eral proofs of the plaintiff," and illustiff), where Trenchard, J., speaking for trated the reason in the case at bar, the court of errors and appeals of New where the defendant was reputed to Jersey, said: “The mode of proving have been wealthy, but had disposed of