The opinion of the court was delivered by
Steele, J.
The court ruled that under the replication de sua injuria the plaintiff was entitled to recover for any excessive force [625]*625beyond reasonable chasetisement, of which they should find the defendant guilty.
The plaintiff, after introducing evidence tending to prove the five distinct acts of trespass, counted upon in the declaration, proceeded against objection to prove other acts and words not alleged, some of which were so connected with the acts declared upon as to form a part of the transaction, and most of which were independent of these acts and occurred on other occasions during the period and about the time, in which the defendant is said to have committed the several trespasses with which he is charged. It is not pretended that the plaintiff could recover in this action for any trespasses not counted upon in the declaration. The question is, were the unalleged acts and words which were proven under objection, legitimate subjects of consideration, either in settling the amount the plaintiff should recover, or in determining her right to recover at all for the acts which were alleged.
I. What may be proven to affect the amount of recovery depends in great part upon what rule or principle of damages governs in the case. If the damages are limited to compensation, the proof must be limited to evidence of the nature and extent of the injury to be compensated. If the damages may be extended to punishment, the proof must be extended to evidence of the nature and extent of the offences to be punished. There is not necessarily any proportional relation between the injury and the offence. The injury to the plaintiff may be severe and yet the defendant’s offence be comparatively slight, if it was occasioned by an error of judgment, lack of discretion, or joer infortunium.
On the other hand the injury to the plaintiff may be slight and the defendant’s offence be comparatively serious, if it arose from wanton malice or oppressive cruelty.
There is no question but there are very respectable authorities against the right of recovery in trespass of anything more than compensation to the plaintiff for the actual loss or damage he has suffered, and these authorities exclude all evidence of the intention, motive, [626]*626and character of the defendant’s offence as immaterial. † Other au„ thorities, while they disclaim the right of jurors in a civil suit to give damages by way of punishment, or example, because these belong to the government, as a fine, instead of to the party injured as damages, still hold that the malice, wantonness, and wilful cruelty of the defendant’s act are material, on the ground that the injury to the plaintiff is greater, if he is subjected to the insult, indignity and oppression of a wilful, premeditated and unprovoked wrong than when subjected to a wrong, which arose per infortunium, from mistaken judgment, or even in the heat of natural anger. ‡ Still other authorities insist that the jury may allow damages by way of punishment, or smart money. || This matter of damages, in actions ex delicto, has been the subject of much discussion and grave difference of opinion among jurists, but it is clear that it is of very little practical consequence to either plaintiff or defendant, if damages are allowed according to the wickedness or wilfulness of the act, whether they are allowed upon the ground that the wickedness and w'ilfulness of the act increases, or aggravates the injury to the plaintiff, or upon the ground that the defendant should be punished in damages. Such damages by the great weight of authority, and particularly of modern authority, are legitimate, and by the repeated decisions of this state, are a matter of right under the discretion of the jury. It has even been held in a late case in' this state, Nye v. Merriam, 35 Vt. 438, that such damages may be recovered in an action on the case for deceit upon proof of wilful fraud. The objection urged to this kind of damages is rather to the terms by which they are called, viz: exemplary, punitive, vindictive, than to the right of the party injured to recover them. The allowance of such damages depending entirely upon the character and purpose of the defendant’s acts, the usual evidence must be admissible to ascertain the disposition and intention which prompted them.
[627]*627When the intent is material, says Mr. G-reenleaf, “ evidence of facts which happened before or after the principal transaction is admissible to show it.” ¶ In this case several distinct successive acts, Upon different occasions, are complained of, and the evidence, which is objected to, is of acts and words about the time of and between the principal transactions. Such acts and words certainly were not so remote in point of time as to be objectionable for that reason. Were they calculated to show the intent? That between the principal acts of abuse, and shortly after some of them the defendant held the child to the mirror, and called her attention to her sunken eyes and emaciated condition, and reminded her that he would soon see her stretched on a board; that he besmeared her with excrement, compelled her to drink urine, chained her to the stove, and left her in that condition for hours alone, dressed her in men’s apparel, and then pinched, tortured and insulted her ; all this was, we think, if credited, calculated to prove that the defendant’s intention and disposition in the principal acts were wilfully malignant, and to show that these principal acts were prompted by a settled and persistent purpose of oppression and wanton cruelty,
II. The relevancy of proof of malicious intent in this case is the more apparent from the state of the pleadings and evidence. The defendant pleads in justification to some of the counts, that the force he used was but reasonable chastisement of the plaintiff for her misbehavior, and was administered for that purpose ; that she was a child between eleven and twelve years old, whom he had received from her parents to bring up, and that she was subject to proper correction at his hands. The defendant has himself put his intention in issue by his pleading, and made it an issue independent of the matter of exemplary damages upon the main question of the sufficiency of his defence ; for the plaintiff denies that this force was for correction, but says it was de sua injuria, and the defendant to justify must satisfy the jury that chastisement was the purpose of the force, he admits, and not merely the excuse for it. The defendant, under this plea of justification, testified that he administered no more correction than he thought reasonable and proper at that time, [628]*628“ although he might have erred in judgment.” The plaintiff might recover for excess of force, and in such a contingency to ascertain, according to the rules above stated, what damages should be given for it, it was very important to decide whether the defendant erred in judgment, or was actuated by persistently malicious feelings towards the plaintiff.
III.
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The opinion of the court was delivered by
Steele, J.
The court ruled that under the replication de sua injuria the plaintiff was entitled to recover for any excessive force [625]*625beyond reasonable chasetisement, of which they should find the defendant guilty.
The plaintiff, after introducing evidence tending to prove the five distinct acts of trespass, counted upon in the declaration, proceeded against objection to prove other acts and words not alleged, some of which were so connected with the acts declared upon as to form a part of the transaction, and most of which were independent of these acts and occurred on other occasions during the period and about the time, in which the defendant is said to have committed the several trespasses with which he is charged. It is not pretended that the plaintiff could recover in this action for any trespasses not counted upon in the declaration. The question is, were the unalleged acts and words which were proven under objection, legitimate subjects of consideration, either in settling the amount the plaintiff should recover, or in determining her right to recover at all for the acts which were alleged.
I. What may be proven to affect the amount of recovery depends in great part upon what rule or principle of damages governs in the case. If the damages are limited to compensation, the proof must be limited to evidence of the nature and extent of the injury to be compensated. If the damages may be extended to punishment, the proof must be extended to evidence of the nature and extent of the offences to be punished. There is not necessarily any proportional relation between the injury and the offence. The injury to the plaintiff may be severe and yet the defendant’s offence be comparatively slight, if it was occasioned by an error of judgment, lack of discretion, or joer infortunium.
On the other hand the injury to the plaintiff may be slight and the defendant’s offence be comparatively serious, if it arose from wanton malice or oppressive cruelty.
There is no question but there are very respectable authorities against the right of recovery in trespass of anything more than compensation to the plaintiff for the actual loss or damage he has suffered, and these authorities exclude all evidence of the intention, motive, [626]*626and character of the defendant’s offence as immaterial. † Other au„ thorities, while they disclaim the right of jurors in a civil suit to give damages by way of punishment, or example, because these belong to the government, as a fine, instead of to the party injured as damages, still hold that the malice, wantonness, and wilful cruelty of the defendant’s act are material, on the ground that the injury to the plaintiff is greater, if he is subjected to the insult, indignity and oppression of a wilful, premeditated and unprovoked wrong than when subjected to a wrong, which arose per infortunium, from mistaken judgment, or even in the heat of natural anger. ‡ Still other authorities insist that the jury may allow damages by way of punishment, or smart money. || This matter of damages, in actions ex delicto, has been the subject of much discussion and grave difference of opinion among jurists, but it is clear that it is of very little practical consequence to either plaintiff or defendant, if damages are allowed according to the wickedness or wilfulness of the act, whether they are allowed upon the ground that the wickedness and w'ilfulness of the act increases, or aggravates the injury to the plaintiff, or upon the ground that the defendant should be punished in damages. Such damages by the great weight of authority, and particularly of modern authority, are legitimate, and by the repeated decisions of this state, are a matter of right under the discretion of the jury. It has even been held in a late case in' this state, Nye v. Merriam, 35 Vt. 438, that such damages may be recovered in an action on the case for deceit upon proof of wilful fraud. The objection urged to this kind of damages is rather to the terms by which they are called, viz: exemplary, punitive, vindictive, than to the right of the party injured to recover them. The allowance of such damages depending entirely upon the character and purpose of the defendant’s acts, the usual evidence must be admissible to ascertain the disposition and intention which prompted them.
[627]*627When the intent is material, says Mr. G-reenleaf, “ evidence of facts which happened before or after the principal transaction is admissible to show it.” ¶ In this case several distinct successive acts, Upon different occasions, are complained of, and the evidence, which is objected to, is of acts and words about the time of and between the principal transactions. Such acts and words certainly were not so remote in point of time as to be objectionable for that reason. Were they calculated to show the intent? That between the principal acts of abuse, and shortly after some of them the defendant held the child to the mirror, and called her attention to her sunken eyes and emaciated condition, and reminded her that he would soon see her stretched on a board; that he besmeared her with excrement, compelled her to drink urine, chained her to the stove, and left her in that condition for hours alone, dressed her in men’s apparel, and then pinched, tortured and insulted her ; all this was, we think, if credited, calculated to prove that the defendant’s intention and disposition in the principal acts were wilfully malignant, and to show that these principal acts were prompted by a settled and persistent purpose of oppression and wanton cruelty,
II. The relevancy of proof of malicious intent in this case is the more apparent from the state of the pleadings and evidence. The defendant pleads in justification to some of the counts, that the force he used was but reasonable chastisement of the plaintiff for her misbehavior, and was administered for that purpose ; that she was a child between eleven and twelve years old, whom he had received from her parents to bring up, and that she was subject to proper correction at his hands. The defendant has himself put his intention in issue by his pleading, and made it an issue independent of the matter of exemplary damages upon the main question of the sufficiency of his defence ; for the plaintiff denies that this force was for correction, but says it was de sua injuria, and the defendant to justify must satisfy the jury that chastisement was the purpose of the force, he admits, and not merely the excuse for it. The defendant, under this plea of justification, testified that he administered no more correction than he thought reasonable and proper at that time, [628]*628“ although he might have erred in judgment.” The plaintiff might recover for excess of force, and in such a contingency to ascertain, according to the rules above stated, what damages should be given for it, it was very important to decide whether the defendant erred in judgment, or was actuated by persistently malicious feelings towards the plaintiff.
III. The evidence which was admitted under the fourth count against objection, is admissible not only upon the grounds we have stated, but also as a part of the principal transaction. The'defendant after putting the plaintiff naked through the ice into a trough of water, conducted her to the house, and before allowing her to dress, placed her over a stove, and as she trembled whipped her, and compelled her to stand there till she fell. What occurred after she returned to the house is not alleged in the declaration, but occurring in connection with the immersion, and very probably in consequence of it, and before the defendant left her, or allowed her to dress, it must be regarded as one transaction, and may be proved. It is not necessary to allege all the circumstances of a trespass with the same particularity as would be required in declaring upon the independent stipulations of a contract.
The judgment of the county court is affirmed.
Elliot v. Kilburn, 2 Vt. 470.