P. J. Willis & Bro. v. McNeill , 57 Tex. 465 ( 1882 )

Bonner, Associate Justice.

There are nineteen assigned errors in this case, but we do not deem it necessary or profitable to pass upon them all, and shall confine ourselves to those deemed most material.

The first and seventh assigned errors will be considered together, and are as follows:

“ 1. The court erred in permitting defendant to introduce any evidence concerning the issuance, levy and settlement of the attachment issued January 29, 1881, as shown by bill of exception No. 1, herewith filed.”

“ 7. The court erred in permitting defendant’s attorneys to discuss before the jury the facts and circumstances connected with the issuance, levy and settlement of the attachment issued January 29, 1881, as shown by bill of exception No. 7.”

The evidence shows that the note upon which the attachment in the present case was sued out, was the balance due upon the settlement of the prior attachment of January 29, 1881.

We are of opinion, that, under the circumstances, the court did not err in permitting this testimony to be introduced, or in permitting the attorneys for the defendant to comment upon the same. The facts attending the first attachment may have served to throw light upon the second, and if so, either party could have given them in evidence.- This case differs from that of Blum v. Gaines, decided at the last Austin term.

The second assigned error is that “ The court erred in permitting defendant to be asked what effect on a merchant’s credit the issuance of an attachment would have, as shown by biH of exception Bo. 2.”

Buie 58 for the government of the district courts provides that “ Exceptions to the admission of evidence, where the ground of objection is assigned, shall be considered in reference to the objections made to it, and the objection shall be.stated in the bill of exceptions taken to its admission or exclusion.”

This bill of exceptions shows that the objection raised was obviated, and that no further objection was made. Under the circumstances the appellants cannot complain, and particularly as the testimony was subsequently withdrawn by the court from the jury.

The third assigned error is that “ The court erred in sustaining defendant’s objection to the several questions asked the witness Thomas F. Murchison, as shown by bill of exception Bo. 3.”

In response to this alleged error, I am instructed by a majority of the court to say, that, so far as the questions sought to elicit the opinions of the witness, they did not relate to a subject matter which brought it without the general rule that facts and not opinions should be stated; and that so far as they sought to prove the usages and customs of merchants, they were not sufficiently pertinent to the particular ground upon which the affidavit for the attachment was based, as to make the testimony sought, admissible. The bill of exceptions fails to show the ground of objection to the questions asked.

The eighth assigned error is that “ The court erred in permitting defendant’s attorney in the concluding argument to discuss the wealth of the plaintiffs, and to insist that the wealthier the plaintiffs were the greater the amount of damages that should be assessed against them, as shown by bill of exception Bo. 8.”

The evidence submitted on the trial of a cause should be confined to the issues made by the pleadings, and it is the sworn duty of the jury to try the case according to the law given them in change by the court and the evidence submitted.

The rules for the government of the district court prescribe that “ Counsel shall be required to confine the argument strictly to the evidence and to the argument of opposing counsel; ” and that “ The court will not be required to wait for objections to be made when the rules as to argument are violated, but should they not be noticed and corrected by the' courtj opposing counsel may ask leave of the court to rise and present his point of objection.” Rules 39 and 41.

It is further provided (Rule 121), that any supposed violation of the rules to the prejudice of a party may be reserved by bill of exceptions, presented as a ground for a new trial, and assigned as error by the party who may have conceived himself aggrieved by such supposed violation.

Under these rules the duty devolves affirmatively, first, upon counsel to confine the argument strictly to the evidence and to the argument of opposing counsel; second, upon the court, on its own motion, to confine counsel to this, line of argument. If both the counsel who is making the argument and the court should fail in the discharge of this duty, then the rules give to opposing counsel the privilege, but does not make it his duty, to then present his point of objection. This discretion given to counsel, as to whether he will make the objection at the time, was doubtless based upon the well known embarrassments and often prejudice which genercrally attend the interruption of the argument of one counsel by another; and was intended to place that as a duty where it properly belongs — upon the presiding judge.

In announcing as a rule of practice that which was subseque? incorporated into the present rules of court above quoted, it is by the late learned chief justice of this court, in Thompson «. The State, that “ Zeal in behalf of their clients, or desire for success, should never induce counsel in civil cases, much less those representing the state in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon other than the facts in the case and the conclusions legitimately deducible from the law applicable to them.” It is further said that such practice is of sufficiently grave importance and so highly objectionable as to require the decided condemnation of the court. 43 Tex., 274.

Whether counsel under such circumstances remain silent or object, may be alike prejudicial to his cause. Silence may be construed into acquiescence, objection may call forth a damaging repartee.

In Berry v. The State, the distinguished Judge Lumpkin, in commenting upon a similar question and upon the duty of the court to check the argument of counsel, says: “ that the practice complained of is highly reprehensible, no one can doubt. It ought in every instance to be promptly repressed. For counsel to undertake by a side wind to get that in proof which is merely conjecture, and thus to work a prejudice in the mind of the jury, cannot be tolerated. Nor ought the presiding judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the jury as to what is and what is not in evidence, than for the opposite counsel to move in the matter. For what practitioner has not regretted his untoward interference, when the counsel thus interrupted, resumes, ‘ yes, gentlemen, I have touched a tender spot, the galled jade will wince; you see where the shoe pinches.’ ” 10 Ga., 522.

This question was also elaborately discussed, and the practice very gravely condemned by our court of appeals, in Hatch v. The State, 8 Ct. App., 416.

The argument of counsel, complained of in the present case, did not legitimately belong to any proper issue in the case; ivas not based upon any evidence adduced, or which could have been properly adduced on the trial, and was calculated to inflame the passions and excite the prejudices of the jury.' That it did so inflame and excite them may well be presumed from the very large verdict which was returned.

The ninth assigned error is that “ The court erred in refusing the first special charge asked by plaintiffs, to the effect that plaintiffs could and should not be held responsible for any malicious acts of their agent who sued out the attachment, unless they (the plaintiffs) had knowledge of, and participated in,- said malicious acts, or unless said plaintiffs afterwards ratified, adopted or approved said malicious acts of their said agent.”

This will be considered in connection with the eleventh, as follows: “ The court erred in the general charge to the jury, wherein the following language is used, to wit: ‘ If you find in the case that the grounds on which the attachment was sued out did not in fact exist, and you also find that it was maliciously and without probable cause sued out, and you find that the malice, if there was malice, ivas the malice of the agent, you cannot impute such malice to P. J. Willis. & Bro. by presumption. But if there was a want of probable cause for suing, out the attachment, malice may be implied, and if P. J. Willis & Bro. authorized their agent to sue out the attachment, or concurred in it, assented to it, or adopted or ratified it after it was done, the law would impute the malice to them.’ ”

The special charge asked, and the refusal of which is assigned as error, was: “ If the evidence in this case shows that the affidavit for the attachment was made by an agent or attorney, and not by the plaintiffs in person, and if the evidence further shows that said affidavit was so made by said agent or attorney maliciously and without probable causé, then before the plaintiffs could be held responsible therefor, and before you could find a verdict against said plaintiffs for any damages which defendant may have sustained by reason thereof, the evidence must further show that plaintiffs at the time had knowledge of, and participated in, said malice, or that since that time said plaintiffs have ratified, adopted or approved the said malicious act of said agent and attorney who made said affidavit; and unless the jury should find from the evidence that plaintiffs so had knowledge of, and participated in, said malice, or that they after-wards ratified, adopted or approved said malicious acts, the jury should find for the plaintiffs on this issue.”

This was a clear presentation of the doctrine of the liability of a principal for exemplary damages for the act of the agent in suing out a writ of attachment, and is the rule adopted by this court, and should have been given, if not embraced in the general charge. Wallace v. Fineburg, 46 Tex., 50; Hays v. Railroad Co., id., 272.

Although this view of the law. was doubtless entertained by the learned judge below, and was so presented as to be thus understood by the legal mind, yet portions of the charge were calculated to mislead the jury by the failure to clearly draw the distinction between the non-liability of the plaintiffs for exemplary damages by reason of the individual malice of the agent, and their liability therefor if they participated therein, or adopted or ratified the same with a knowledge of the facts.

It is quite possible that the jury may have construed the portion of the general charge above quoted to mean that they should, as a matter of law, infer malice from the want of probable cause. This inference, however, does not necessarily follow as a conclusion either of law or fact, but it is a mere inference of fact, which the jury may or may not draw, according to the facts and circumstances of the case. Griffin v. Chubb, 7 Tex., 603.

We are of opinion that, upon the proposition contained in the special charge asked and refused, the general charge may have misled the jury, and that the special charge asked should have been given.

The thirteenth, fourteenth and sixteenth assigned errors will be' considered together, and are as follows:

“13. The court erred in the general charge to the jury, wherein the following language is used, to wit: 1 In this case, the goods having been sold, the measure of actual damages would be the value of the goods so seized at the time taken, and at the place taken, with eight per cent, interest thereon from the date of the seizure to this date, not to exceed §1,500.’ ”

Ill another part of the charge the jury are instructed, that “ you will next inquire whether the same (the attachment) was maliciously sued out and without probable cause; if you find it was, you will then be authorized to find for the defendant exemplary damages not to exceed $20,000.”

“ 14. The court erred in the general charge to the jury, wherein the following language is used, to wit: ‘ And give to the defendant such damages as will punish the plaintiff by setting a public example to prevent the repetition of the like wrongs.’ And the court erred in repeating the above language in said charge.”

It is complained because this proposition was announced in three different clauses of the charge.

“ 16. The whole of said charge is erroneous because it is argumentative in its character, is a continuous recital and repetition of the ways and means by and through which defendant would be entitled to recover damages of the plaintiff, and was in its very nature calculated to and did confuse, prejudice and mislead the jury, and besides, is a commentary upon the weight of the evidence adduced on the trial.”

The' phraseology and arrangement of the charge to the jury, when it conforms to the requisites of the statute and to the law of the case as applied to the issues and evidence, must be left, in a great degree, to the taste and discretion of the judge who gives it.

The charge under consideration conforms in its general features to those usually given in such cases, and what we say under these assignments is designed as suggestions which are deemed worthy of consideration, as tending to prevent the frequent recurrence of similar assigned errors to the. above.

Although it is common to use such expressions as that objected to in the thirteenth assigned error in charges to the jury, and may be said to be authorized by that part of the pleadings in which the plaintiff alleges the amount of his damages, yet the practice is subject to objection. It is a well known fact that it is the almost invariable rule with the pleacler, as a mere matter of form, to place the general allegation of damage at an amount far exceeding any reasonable calculation. When, therefore, the jury are told that, if they find for the plaintiffs, they are authorized to give damages not exceeding the amount of formal damages thus laid in the pleadings, they may take such an expression as an intimation upon the part of the court that the evidence authorized a verdict for the full amount claimed.

In Bryan v. Acre, 27 Ga., 87, as quoted in note, p. 332, 2 Sedg. on Damages (7th ed.), where the highest value of a house torn down and removed by the defendant, testified to by any witness, was §250, and the court instructed the jury that if they found it a case for exemplary damages, they might find a verdict for anj^ amount not exceeding the sum laid in the declaration, which was $2,000, and the jury found a verdict for $567, this was set aside on the ground that this instruction might have improperly influenced the verdict as to the amount of damages. See, also, Glasscock v. Shell, decided at last Austin term.

Under our practice, the pleadings are always read to the jury, and they are thereby advised of the amount claimed, and if, peradventure, they should, now and then exceed this,' the error can bo easily corrected by a remittitur.

Upon the question raised in the fourteenth and sixteenth assigned errors, it is suggested that if a distinct legal, proposition as applicable to the issues and evidence is once clearly announced in the charge, its repetition may tend to impress the jury with the belief that, in the opinion of the presiding judge, the facts démand its application in the particular case, and thus their verdict may thereby be unintentionally influenced.

The nineteenth assigned error is to the effect that the verdict is excessive and that a nexv trial should have been granted. Exemplary damages are said to rest in the sound discretion of the jury. This discretion is often abused, but the courts, from the very necessity of the case, are frequently embarrassed in deciding xvhere the line of proper discretion ends, and where that of arbitrary abuse commences. The legislature wisely, in the administration of the criminal laxv, has seen proper to limit this discretion, by providing as a general rule in those cases where a fine in money is prescribed, either as the only punishment, or as an alternative for imprisonment, that the same shall not be less nor more than a certain amount. As illustrations, the fine for false imprisonment does not exceed $500; for libel, xvhich affects the reputation and may also affect the busi•ness credit of a party, is not less than $100 nor more than §2,000; for malicious prosecution to extort money or for the payment or security of a debt, very similar to the wrongful and malicious suing out an attachment, not less than $100 nor more than $1,000; for malicious mischief to property, xxras, under our former statutes, regulated in many cases by the value of the property, generally not to exceed three times its value, is under the Revised Statutes from $10 to $2,000. That in criminal cases, the legislature, both for the protection of society and of the individual offenders, should place a limit on the verdict of a jury, and yet exemplary damages, which are allowed only in those civil cases which are §ws¿-criminal in their nature, and then as a fine ór penalty, should rest in the discretion of a jury, whose verdict in a great majority of cases far exceeds the highest fines allowed by law in criminal cases, is an inconsistency which may well arrest the attention of the legislative and judicial minds. By analogy, in the absence of a more definite rule, we might look to the example of the legislature in those cases in which they have fixed a minimum and maximum amount proportioned to the actual injury received.

What was said by this court in Railroad Co. v. Nichols, decided at Austin term, 1882, is applicable in this case, that “ exemplary damages, when allowed, should bear proportion to the actual damages sustained ” (Mobile & Montgomery R. R. Co. v. Ashcraft, 48 Ala., 33); and that, “in'this cause the actual damages assessed by the jury were $2,000, a sum probably not excessive under the facts of the case; but the exemplary damages were assessed at $8,000, which to us seems so clearly excessive when contrasted with the sum found for actual damages, and considered with-reference to the facts of the case, that we are forced to the conclusion that it was the result of passion or prejudice, stimulated, perhaps, by the course pursued on the trial.”

In that case the proportion between the actual and exemplary damages was as two bears to eight; here it is nearly as one to twelve.

In this connection it is deemed proper to say that the case of R. R. Co. v. Randall, 50 Tex., 254, so often cited to sustain large verdicts, was one of actual, not exemplary damages.

In our opinion the verdict in this case is excessive, and should have been promptly set aside.

For the errors above indicated, the judgment below is reversed and the cause remanded.

Beversed and remanded.

[Opinion delivered October 8, 1882.]