The opinion of the court was delivered by
Wheeler, J.
I. At common law, this action would not survive to a husband, nor to an administrator. At the decease of the female plaintiff, all the rights of the person claiming to be her husband, whether he was in fact her husband or not, came to an end. By the force of the, statute, the action survived to her administrator, and after he appeared and entered into the suit, to prosecute it, he, as administrator, was the sole plaintiff. As she had died, and the administrator had entered to prosecute before the trial in the county court, that trial was solely of his right as administrator to recover of the defendant. This right of re-recovery did not rest at all upon any marital relation between her and the person set up as her husband, but would be fully made out by showing that the defendant was guilty of the doing to the intestate of the wrong sued for, and that the plaintiff was her administrator. Therefore, the question as to the effect of the divorce and the validity of the subsequent marriage, was of no importance in the case.
II. The presiding judge at the former trial was not required by law to take any minutes of the testimony of the witnesses. Whatever minutes he did take, were taken solely at his own pleasure, for his own convenience and guidance; and, when taken, they did not constitute an official record of the testimony. Such minutes were not record proof of the testimony, and were not of a higher grade of legal quality than minutes taken by other persons, as evidence, according to the rule of law requiring the best evidence to be produced, and it was not necessary to either produce them, or account for not producing them, before other evidence of the testimony of a deceased witness could be received.
Although the witness that had died was a party to the suit when she testified, she was a competent witness at the time she testified, and would have been competent to prove the same facts at this trial if she had been living, and it was proper that lawful evidence of her former testimony should be received. Perry v. [284]*284Whitney, 30 Vt. 390. The witness offered to prove her testimony, testified that he took minutes of it with substantial accuracy, and that he thought he had taken the exact words in many 'instances, although not in every particular, and he produced ¡these minutes in connection with his testimony. This seems to ¡be sufficient, according to the decision in Whitcher v. Morey, 39 Vt. 459. The reasons for that decision, as set forth in the /opinion by Steele, J., are clear and satisfactory, and there is no | occasion for repeating them here. A similar decision has been made since that case, but it has not yet been reported.
III. ' The evidence on the part of the plaintiff appears to have tended to show that’the injury done by the defendant to the intestate was permanent, and that she was suffering from it at the time of the former trial, when she was examined by a physician. The defendant seems to have insisted to the contrary of this. Her bodily condition at that time was important in the trial. What she said at that time as to the nature, symptoms, and effects of the malady she was then suffering from, was proper evidence. 1 Greenl. Ev. §102. The defendant appears to have objected to the testimony of the physician as to what she then told him of her complaints and pains. What the witness testified that she did tell him of her complaints and pains, is not stated; The subjects of which she told him, were such as made testimony as to what she told him, proper, so long as it did not go beyond her bodily condition at that time, and, as it does not appear to have gone beyond that, no error in overruling the objection appears.
IV. The condition and health of a mother have great influence and effect upon her child during pregnancy, to and after the birth of the child. The condition and health of the intestate during the latter part of the time of her pregnancy, was important, and the fact that the child had spasms, or convulsions, at the time of its birth, if such was the fact, was a circumstance proper to be weighed with the other circumstances in the case bearing upon the condition of the mother after the time when that became important, for the purpose of determining what her condition, while it was important, in fact was; and there was no error in [285]*285allowing the question as to the condition of th.e child to be put and answered.
. V. The only proper use of the evidence obtained by the question put upon the facts supposed to the medical expert, was to show to' the jury what, in the professional opinion of the expert, caused the injury to the limb of the intestate, if the facts supposed, to exist actually did exist. The actual existence of the facts was to be shown at some time during the trial by some means other than this question. The order of putting in the evidence was subject to the control of the court in its discretion, and the evidence of professional opinion upon facts supposed, might, if the court was satisfied that it was offered in good faith, expecting it would be followed by proof of the facts supposed, be admitted as well before the proof of the facts as after; or might be received after evidence of part of the facts, and before that of the rest. If, after the evidence was all in, there was a lack of evidence of the existence of any material part of the facts supposed, the jury should be instructed to lay the evidence of the opinion out of their consideration. The point made as to this evidence is upon its admissibility, and not upon the disposition afterwards made of it. Whether the case shows evidence of facts sufficient to warrant the court in leaving the existence of them to the jury, with the evidence of the opinion based upon them or not, is a question that has not been examined into by this eourt. The exceptions show no error in law in the admission of the question and answer.
VI. It is true, as claimed by counsel for the defendant, that no damages could properly be recovered in this action for any loss of the labor of the intestate that belonged to her husband. If the court had been requested to instruct the jury to that effect, and had declined to do so, otherwise than by the charge as given, perhaps there would have been error. But the charge as given did not direct the jury to find any damages on account of such loss of labor; nor, as to this part of the case, on account of any thing besides the personal injury to the intestate herself. The comments of the court upon the measure of such damages as [286]*286affected by the previous condition, as to health, of the intestate, and by her age, appear to have been just and proper, and no error appears in the charge as given in this respect.
YII. Except in the particular just treated of, the charge of the court as to actual damages appears to have been Satisfactory. But after charging fully in respect to actual damages, the court appears to have further charged that if the jury found the assault was committed in the manner and under circumstances indicating malice, they were at liberty to give exemplary damages.
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The opinion of the court was delivered by
Wheeler, J.
I. At common law, this action would not survive to a husband, nor to an administrator. At the decease of the female plaintiff, all the rights of the person claiming to be her husband, whether he was in fact her husband or not, came to an end. By the force of the, statute, the action survived to her administrator, and after he appeared and entered into the suit, to prosecute it, he, as administrator, was the sole plaintiff. As she had died, and the administrator had entered to prosecute before the trial in the county court, that trial was solely of his right as administrator to recover of the defendant. This right of re-recovery did not rest at all upon any marital relation between her and the person set up as her husband, but would be fully made out by showing that the defendant was guilty of the doing to the intestate of the wrong sued for, and that the plaintiff was her administrator. Therefore, the question as to the effect of the divorce and the validity of the subsequent marriage, was of no importance in the case.
II. The presiding judge at the former trial was not required by law to take any minutes of the testimony of the witnesses. Whatever minutes he did take, were taken solely at his own pleasure, for his own convenience and guidance; and, when taken, they did not constitute an official record of the testimony. Such minutes were not record proof of the testimony, and were not of a higher grade of legal quality than minutes taken by other persons, as evidence, according to the rule of law requiring the best evidence to be produced, and it was not necessary to either produce them, or account for not producing them, before other evidence of the testimony of a deceased witness could be received.
Although the witness that had died was a party to the suit when she testified, she was a competent witness at the time she testified, and would have been competent to prove the same facts at this trial if she had been living, and it was proper that lawful evidence of her former testimony should be received. Perry v. [284]*284Whitney, 30 Vt. 390. The witness offered to prove her testimony, testified that he took minutes of it with substantial accuracy, and that he thought he had taken the exact words in many 'instances, although not in every particular, and he produced ¡these minutes in connection with his testimony. This seems to ¡be sufficient, according to the decision in Whitcher v. Morey, 39 Vt. 459. The reasons for that decision, as set forth in the /opinion by Steele, J., are clear and satisfactory, and there is no | occasion for repeating them here. A similar decision has been made since that case, but it has not yet been reported.
III. ' The evidence on the part of the plaintiff appears to have tended to show that’the injury done by the defendant to the intestate was permanent, and that she was suffering from it at the time of the former trial, when she was examined by a physician. The defendant seems to have insisted to the contrary of this. Her bodily condition at that time was important in the trial. What she said at that time as to the nature, symptoms, and effects of the malady she was then suffering from, was proper evidence. 1 Greenl. Ev. §102. The defendant appears to have objected to the testimony of the physician as to what she then told him of her complaints and pains. What the witness testified that she did tell him of her complaints and pains, is not stated; The subjects of which she told him, were such as made testimony as to what she told him, proper, so long as it did not go beyond her bodily condition at that time, and, as it does not appear to have gone beyond that, no error in overruling the objection appears.
IV. The condition and health of a mother have great influence and effect upon her child during pregnancy, to and after the birth of the child. The condition and health of the intestate during the latter part of the time of her pregnancy, was important, and the fact that the child had spasms, or convulsions, at the time of its birth, if such was the fact, was a circumstance proper to be weighed with the other circumstances in the case bearing upon the condition of the mother after the time when that became important, for the purpose of determining what her condition, while it was important, in fact was; and there was no error in [285]*285allowing the question as to the condition of th.e child to be put and answered.
. V. The only proper use of the evidence obtained by the question put upon the facts supposed to the medical expert, was to show to' the jury what, in the professional opinion of the expert, caused the injury to the limb of the intestate, if the facts supposed, to exist actually did exist. The actual existence of the facts was to be shown at some time during the trial by some means other than this question. The order of putting in the evidence was subject to the control of the court in its discretion, and the evidence of professional opinion upon facts supposed, might, if the court was satisfied that it was offered in good faith, expecting it would be followed by proof of the facts supposed, be admitted as well before the proof of the facts as after; or might be received after evidence of part of the facts, and before that of the rest. If, after the evidence was all in, there was a lack of evidence of the existence of any material part of the facts supposed, the jury should be instructed to lay the evidence of the opinion out of their consideration. The point made as to this evidence is upon its admissibility, and not upon the disposition afterwards made of it. Whether the case shows evidence of facts sufficient to warrant the court in leaving the existence of them to the jury, with the evidence of the opinion based upon them or not, is a question that has not been examined into by this eourt. The exceptions show no error in law in the admission of the question and answer.
VI. It is true, as claimed by counsel for the defendant, that no damages could properly be recovered in this action for any loss of the labor of the intestate that belonged to her husband. If the court had been requested to instruct the jury to that effect, and had declined to do so, otherwise than by the charge as given, perhaps there would have been error. But the charge as given did not direct the jury to find any damages on account of such loss of labor; nor, as to this part of the case, on account of any thing besides the personal injury to the intestate herself. The comments of the court upon the measure of such damages as [286]*286affected by the previous condition, as to health, of the intestate, and by her age, appear to have been just and proper, and no error appears in the charge as given in this respect.
YII. Except in the particular just treated of, the charge of the court as to actual damages appears to have been Satisfactory. But after charging fully in respect to actual damages, the court appears to have further charged that if the jury found the assault was committed in the manner and under circumstances indicating malice, they were at liberty to give exemplary damages. That the object of exemplary damages was twofold; to compensate the party fully for his expenses and trouble he had been to about the case, that parties always have to incur, not taxable costs, but counsel fees, &c., and for the purpose of example, .as a sort of punishment for the party who offends, and that if they came to the question of damages, and believed that the actual damages were not sufficient, and not as much as justice required between the parties, then they were at liberty, under the instructions, to give such exemplary damages, as they thought the case might require at their hands ; and to this the defendant excepted. To what extent a plaintiff has a right to have the jury go in awarding damages where insult, indignity, and wounded honor and sensibilities, are a direct consequence of the injury recovered for, is not in question and necessary to be determined here; but the question is as to the right of the parties in respect to exemplary damages beyond just compensation for the injury recovered for. The doctrines as to such damages, appear to have grown up out of the refusals of courts to grant new trials on account of excessive damages, in cases where the verdicts were greatly in excess of any possible pecuniary loss, but the injury recovered for was attended with malice, oppression, gross fraud, or negligence. In such cases, such motions were usually overruled, unless it appeared that the jury were influenced by passion or prejudice, on the ground that the jury might, in their discretion under such circumstances, visit the defendant with greater damages against him, to show With what detestation they viewed such conduct as .they found him guilty of, and to administer wholesome correction for it by way [287]*287of example. Afterwards it came to be the practice of courts to instruct tbe jury that they were at liberty to enhance the damages in such cases for those purposes. This was instructing the jury beforehand how far they might go without exposing their verdicts to be set aside. This is now the settled practice in this, and most of the other states. There are a few cases, and among these, some relating to patents, where the liability of defendants has been increased on account of their conduct in resisting the liability whereby the expenses of plaintiffs in obtaining remedy were increased. These patent cases are said to rest somewhat upon the peculiar provisions of the statutes, and the others have not been generally followed.
The great weight of authority seems to be opposed to the allowance of counsel fees, and other expenses of litigation, beyond taxable costs, as an element of damages, even in cases proper for exemplary damages. At least, there is so much authority that way, that this court is at liberty to disregard those the other way, if necessary in order to follow the rule most in accordance with legal principles and sound reason. In this state, and in most, and, probably, all the others, the legislature has taken cognizance of the propriety and justice of allowing costs to some extent in favor of the winning against the losing party,, In this state, provision is made for attorneys’ fees, and there is no distinction in law here between attorneys and counsel; and, although the provision made is probably very small in comparison with the actual expense in most cases, it is as much as the lawmaking power has seen fit to make it, and courts and juries have no power to allow more, any more than they would have if it was large enough to cover all such actual expenses. The power over this subject rests entirely with the legislature, and that has not made any provision for allowing actual expenses as damages in any case, although it has made some distinction as to costs in cases arising from the willful and malicious acts of defendants. A party in an action upon contract may be as malicious, and may put the other party to as much expense, as in an action of tort for an act that was malicious, and no good reason is apparent why these expenses should not be considered as much in one of these cases [288]*288as the other. The true rule seems to be, that the plaintiff is entitled, as a matter of right, to recover compensatory damages for the injury done him by the act recovered for, with his legal costs, and that the jury, in cases proper for exemplary damages, are to be governed wholly by the malice or wantonness of the defendant, as shown by the conduct they find him liable for in the action, in awarding them.
The charge in this case left the jury at liberty to consider the expenses of the suit to the plaintiff for counsel fees and trouble, not taxable costs, and to allow these expenses to the plaintiff as a part of the exemplary damages, if they saw fit. -This is considered to have been erroneous..
The counsel of the defendant insist that because the injured party had died, and the suit was prosecuted by an administrator, it was not, under those circumstances, a proper case for exemplary damages. If such damages were given as a compensation to the person injured, for some remote consequence of the injury, for which damages could not be given otherwise than as exemplary damages, there might be some reason for this view. But, as has been stated before, such damages are given to stamp the condemnation of the jury upon the acts of the defendant on account of the malicious or oppressive character of the acts, and the decease of the party injured-, would not take away the bad character of the acts, nor prevent the jury from holding them in detestation, nor take away their right to visit the defendant with damages, to show what might be expected from similar conduct.
VIII. The several acts of violence which the testimony tended to show that the defendant did to the intestate at each of the barns, and at the house, were so connected together that each of them would, to some extént, characterize the others; and all together, if the testimony was true, made a continuous series of assaults and batteries, which might be included in one count of a declaration, with proper allegations. Devine v. Rand, 38 Vt. 621; Hodge v. Bennington, 43 Vt. 450. The first count in the declaration in this case, contains allegations sufficient to cover all these transactions, and seems to be well adapted to the case shown by the evidence. Judgment reversed and cause remanded.