Jewett, J.
The only ground of the action, after the second count of the complaint was struck out, was, for the publication of the letter of February, 1846, set out in the first and third counts. The plaintiff in the first place proved by the witness Cassidy, on his direct examination, that in February, 1847, he was employed by the defendant to print this letter, and that, he accordingly did it. On his cross-examination the counsel for the defendant asked the witness whether the defendant requested him to do this printing in as private and confidential a way as he could, and whether or not it was agreed between him and the defendant that it should be done in that manner. This was objected to, and the objection being sustained, an exception was taken by the counsel for the defendant.
I agree in opinion with the court below that the questions were proper. The terms and conditions on which the defendant requested the printing and publication to be done, and on which the witness agreed to do it, were admissible in evidence as a part of the
res gesta
given in evidence by the other side. The evidence called for was pertinent and material in respect to the
motives
of the defendant in procuring the publication complained of. It tended to disprove that the defendant was influenced by
actual
malice to injure the plaintiffs by the publication, and therefore pertinent upon the question in respect to the amount of damages to be given beyond a full compensation for the injury, byway of punishment or example. But I can not agree with the court below that the defendant is precluded from availing himself of the exception, because the plaintiffs after it was taken, proved by other testimony
the publication of the same letter in 1846, at another time. I do not think that this case comes within the rule which holds that a court of review, may, under peculiar circumstances, disregard an error in the court below in the exclusion of legal, or in the admission of illegal evidence. We can not see that the exclusion in this case on its face and by legal necessity could do no injury to the defendant.
(Worrall
v.
Parmelee,
1
Comstock,
519.)
I think the court below was right in holding that the publication could not be included within the protection of privileged communications. In this case the communication was not even confined to the persons making the inquiries of the defendant. The libel complained of was printed by his procurement, and distributed by him to persons who had no special interest in being informed of the condition of the plaintiff’s firm.
The judge charged the jury that the damages should be a full compensation for the injury and nothing more, unless the jury was satisfied that the defendant was influenced by
actual
malice or a deliberate intention to injure the plaintiffs, but if they were satisfied of such intent, they' might give “ such further damages, as are suited to the aggravated character which the act assumes, and as are necessary as an example to deter from the doing of such injuries.” To this there was an exception. I am of opinion that it was correct. The principle is well established as well in the English as in the American courts of justice, that in actions for injuries to the person, committed under the influence of actual malice or with the intention to injure the plaintiff, the jury in their discretion may give damages beyond
the
actual injury sustained, for the sake of the example — damages not only to recompense the sufferer, but to punish the offender.
(Huckle
v.
Money,
2
Wilson,
205.) In
Doe
v.
Fillitcr, 13 Mees. Welsby, 47,
Ch. B. Pollock said that in actions for malicious injuries,’ juries have been allowed to give what are called vindictive damages, and to take all the
circumstances
into consid
eration. In
Tillotson
v. Chatham, 3
Johns.
56, the action was for a libel. The judge at the trial told the jury that the charge contained in the libel was calculated, not only to injure the feelings of the plaintiff, but to destroy all confidence in him as a public officer; and in his opinion, demanded from the jury exemplary damages, as well on account of the nature of the offence charged against the plaintiff, as for the protection of his character as a public officer, which he stated as a strong circumstance for the increase of damages: that he did not accede to the doctrine that the jury ought not to punish the defendant in a civil suit, for the pernicious effect which a publication of this kind was calculated to produce in society. The jury found a verdict for the plaintiff for $800. A motion was made to set aside the verdict, and one ground was, that the public character of the plaintiff as an officer of the government, and the evil example of libels, were stated by the judge to the jury as considerations with them, for increasing the damages. But Kent, Ch. J., said, “ Surely this is the true and salutary doctrine. The actual pecuniary damages in actions for defamation, as well as in other actions for
tort,
can rarely be computed, and are never the sole rule of assessment.” In cases of criminal conversation, battery, imprisonment, slander, malicious prosecutions, &c., (to use the words of Lord Camden, in
2 Wilson,
206,) the state, degree, quality, trade or profession ■ of the party injured, as well as of the party who did the injury, must be, and generally are considered by the jury in giving damages;” and further, that the doctrine was too well settled in practice and was too valuable in principle, to be called in question. And Spencer, J., in the Same case held still stronger language. He said in vindictive actions, such as for libels, defamation, assault and battery, false imprisonment, and a variety of others, it was always given in charge to the jury, that they are to inflict damages for example’s sake, and by way of punishing the defendant.
In
Wort
v.
Jenkins,
14
Johns.
352, the action was trespass for beating a horse to death. The judge charged the jury that if they found for the plaintiff, it was a case in which, from the wantonness and cruelty of the defendant’s conduct, the jury had a right to give smart-money. . A verdict was found for the plaintiff", and on a motion to set it aside for misdirection, the court held that the charge was correct.
In
Cook
v.
Ellis,
6
Hill,
466, it was held in an action for an assault and battery, that the plaintiff" might recover
exemplary
damages, if the jury thought proper to allow them, though it appeared that the defendant had been prosecuted criminally for the same matter, and fined $250, which he had pai$. The court said that in vindictive actions, juries are always authorized to give exemplary damages where the injury is attended with circumstances of aggravation, without regard either to the possible or actual punishment of the defendant by indictment and conviction at the suit of the people.
In
Austin
v.
Wilson,
4
Cushing,
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Jewett, J.
The only ground of the action, after the second count of the complaint was struck out, was, for the publication of the letter of February, 1846, set out in the first and third counts. The plaintiff in the first place proved by the witness Cassidy, on his direct examination, that in February, 1847, he was employed by the defendant to print this letter, and that, he accordingly did it. On his cross-examination the counsel for the defendant asked the witness whether the defendant requested him to do this printing in as private and confidential a way as he could, and whether or not it was agreed between him and the defendant that it should be done in that manner. This was objected to, and the objection being sustained, an exception was taken by the counsel for the defendant.
I agree in opinion with the court below that the questions were proper. The terms and conditions on which the defendant requested the printing and publication to be done, and on which the witness agreed to do it, were admissible in evidence as a part of the
res gesta
given in evidence by the other side. The evidence called for was pertinent and material in respect to the
motives
of the defendant in procuring the publication complained of. It tended to disprove that the defendant was influenced by
actual
malice to injure the plaintiffs by the publication, and therefore pertinent upon the question in respect to the amount of damages to be given beyond a full compensation for the injury, byway of punishment or example. But I can not agree with the court below that the defendant is precluded from availing himself of the exception, because the plaintiffs after it was taken, proved by other testimony
the publication of the same letter in 1846, at another time. I do not think that this case comes within the rule which holds that a court of review, may, under peculiar circumstances, disregard an error in the court below in the exclusion of legal, or in the admission of illegal evidence. We can not see that the exclusion in this case on its face and by legal necessity could do no injury to the defendant.
(Worrall
v.
Parmelee,
1
Comstock,
519.)
I think the court below was right in holding that the publication could not be included within the protection of privileged communications. In this case the communication was not even confined to the persons making the inquiries of the defendant. The libel complained of was printed by his procurement, and distributed by him to persons who had no special interest in being informed of the condition of the plaintiff’s firm.
The judge charged the jury that the damages should be a full compensation for the injury and nothing more, unless the jury was satisfied that the defendant was influenced by
actual
malice or a deliberate intention to injure the plaintiffs, but if they were satisfied of such intent, they' might give “ such further damages, as are suited to the aggravated character which the act assumes, and as are necessary as an example to deter from the doing of such injuries.” To this there was an exception. I am of opinion that it was correct. The principle is well established as well in the English as in the American courts of justice, that in actions for injuries to the person, committed under the influence of actual malice or with the intention to injure the plaintiff, the jury in their discretion may give damages beyond
the
actual injury sustained, for the sake of the example — damages not only to recompense the sufferer, but to punish the offender.
(Huckle
v.
Money,
2
Wilson,
205.) In
Doe
v.
Fillitcr, 13 Mees. Welsby, 47,
Ch. B. Pollock said that in actions for malicious injuries,’ juries have been allowed to give what are called vindictive damages, and to take all the
circumstances
into consid
eration. In
Tillotson
v. Chatham, 3
Johns.
56, the action was for a libel. The judge at the trial told the jury that the charge contained in the libel was calculated, not only to injure the feelings of the plaintiff, but to destroy all confidence in him as a public officer; and in his opinion, demanded from the jury exemplary damages, as well on account of the nature of the offence charged against the plaintiff, as for the protection of his character as a public officer, which he stated as a strong circumstance for the increase of damages: that he did not accede to the doctrine that the jury ought not to punish the defendant in a civil suit, for the pernicious effect which a publication of this kind was calculated to produce in society. The jury found a verdict for the plaintiff for $800. A motion was made to set aside the verdict, and one ground was, that the public character of the plaintiff as an officer of the government, and the evil example of libels, were stated by the judge to the jury as considerations with them, for increasing the damages. But Kent, Ch. J., said, “ Surely this is the true and salutary doctrine. The actual pecuniary damages in actions for defamation, as well as in other actions for
tort,
can rarely be computed, and are never the sole rule of assessment.” In cases of criminal conversation, battery, imprisonment, slander, malicious prosecutions, &c., (to use the words of Lord Camden, in
2 Wilson,
206,) the state, degree, quality, trade or profession ■ of the party injured, as well as of the party who did the injury, must be, and generally are considered by the jury in giving damages;” and further, that the doctrine was too well settled in practice and was too valuable in principle, to be called in question. And Spencer, J., in the Same case held still stronger language. He said in vindictive actions, such as for libels, defamation, assault and battery, false imprisonment, and a variety of others, it was always given in charge to the jury, that they are to inflict damages for example’s sake, and by way of punishing the defendant.
In
Wort
v.
Jenkins,
14
Johns.
352, the action was trespass for beating a horse to death. The judge charged the jury that if they found for the plaintiff, it was a case in which, from the wantonness and cruelty of the defendant’s conduct, the jury had a right to give smart-money. . A verdict was found for the plaintiff", and on a motion to set it aside for misdirection, the court held that the charge was correct.
In
Cook
v.
Ellis,
6
Hill,
466, it was held in an action for an assault and battery, that the plaintiff" might recover
exemplary
damages, if the jury thought proper to allow them, though it appeared that the defendant had been prosecuted criminally for the same matter, and fined $250, which he had pai$. The court said that in vindictive actions, juries are always authorized to give exemplary damages where the injury is attended with circumstances of aggravation, without regard either to the possible or actual punishment of the defendant by indictment and conviction at the suit of the people.
In
Austin
v.
Wilson,
4
Cushing,
273, the supreme court of Massachusetts held that if exemplary, vindictive oy punitive damages were ever, in any case, recoverable, they could not be recovered in an action for an injury which was also punishable by indictment, as libel and assault and battery. For if they could be, the defendant might be punished twice for the same act. That qualification of the rule of damages in vindictive actions, was expressly denied to exist in our courts in
Cook
v.
Ellis, supra.
In
Austin
v.
Wilson, supra,
the court cited the case of
Whitney
v.
Hitchcock,
4
Denio,
461, which was an action
of
trespass, assault and battery upon the daughter and servant of the plaintiff, by which she became sick,
See.
It appeared in evidence that the assault was of an indecent character, made under circumstances of great aggravation. The judge charged the jury , that they had a. right to give a verdict for an amount beyond the actual damages proved: that they were at liberty to give exemplary dama
ges. The court on a motion for a new trial said, that the general question what damages could be recovered by way of punishment in the class of actions where exemplary damages are usually given, was not involved in that case: that that suit was brought by the plaintiff for the loss of the services of his servant, and for that he was entitled to recover, but could not recover beyond his actual loss: that the daughter might herself .maintain an action, in which her damages might be assessed according to the rule laid down at the trial, and the defendant would also be liable to indictment. The cases are numerous in our courts, where, in actions for malicious injuries, juries have been instructed that they had a right to give what are' called vindictive damages, and to take all the circumstances of the case into their consideration. But it can not be necessary on this occasion to cite more of them.
Most, if not all were cited by counsel in
Kendall
v.
Stone,
1 Selden, 14.
The supreme court of New Hampshire, in
Whipple
v.
Walpole,
10
N. H.
130, held that in actions for
tort
to the person, and to personal property, the jury might give
liberal
or
exemplary
damages, in their discretion: damages beyond the actual injury sustained, for the sake of the example. And so in
Linsley
v.
Bushnell,
15
Conn. R.
225; and
Huntley
v.
Bacon,
15
Conn. R: 267,
the supreme court of Connecticut held that there was no principle better established and in practice more universal, than that vindictive damages or smart-money might be given by juries, whether the form of action be trespass or case. And the same doctrine is fully recognized by the supreme court of the United States.
(Tracy
v.
Swartwout,
10
Peters,
81; 3
Wheaton,
546.) The judgment must be reversed and a new trial ordered, because of the rejection of legal evidence offered by the defendant, with costs to abide the event.
Mason, J., read an opinion in which he arrived at the
conclusion that the charge of the court below as to the rule of damages was erroneous.
The question was then put, Shall the judgment of the court below be reversed for error in the charge as to the rule of damages ? Gardiner, Morse and Mason, JJ., were in favor of the reversal, and Rugóles, Ch. J., Jewett, Johnson and Willard against it.
The
question was then taken,
Shall the judgment be reversed on account of the rejection of the evidence proposed to be given by the witness Cassidy? Ruggles, Ch. J., and Gardiner, Jewett, Johnson, Morse and Willard, JJ., voted in the affirmative: Mason, J., expressed no opinion.
The question was then taken, Was the alleged libel a privileged communication? All the members of the court who heard the argument were of the opinion that it was not.'
Taggart,, J., having been absent at the argument, took no part in the decision of the cause.
Judgment reversed and new trial ordered.,