McCurdy v. Hughes , 63 N.D. 435 ( 1933 )

In a very able petition for a rehearing appellant strenuously insists that this court lay down a rule of law for the guidance of the trial court in this and similar cases upon the problem raised by assignment of error number 28, as follows: "The Court erred in the form of the verdict submitted to the jury in behalf of the plaintiff in that such verdict allowed or required the jury to find, if they found for the plaintiff at all, to find a like amount both as to compensatory and punitive damages against the defendants jointly, whereas each defendant was entitled to separate determination and verdict as to the amount of punitive damages, if any given; and, properly, a verdict against one or more defendants for punitive damages might not have warranted such a finding as to the other or others; and such form of verdict as submitted was especially prejudicial to the defendant Mann."

Section 7145, Compiled Laws 1913, relating to exemplary damage reads as follows: "In any action for the breach of an obligation not arising from contract, when the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury in addition to the actual damages may give damages for the sake of example and by way of punishing the defendant." Before the jury can allow exemplary damages, it must first find that the acts of the defendants complained of by the plaintiff resulted in actual damages to the plaintiff and after the allowance of a sum of money sufficient to compensate the plaintiff for the injury, then the jury, in its discretion, may consider the question of exemplary damages, and if it finds that the defendants were guilty of fraud or malice, actual or presumed, it may give such damages for the sake of example and by way of punishing the defendants. Lindblom v. Sonstelie, 10 N.D. 140, 86 N.W. 357; Stockwell v. Brinton, 26 N.D. 1, 142 N.W. 242; Powell v. Meiers,54 N.D. 336, 209 N.W. 547. In other words, the jury may not allow exemplary damages unless there has been (1) actual damages alleged and proven; (2) that there has been fraud or malice, actual or presumed. That is, there must be evidence of actual malice, or, the facts and circumstances in the case must be such that malice is presumed. Whether there was actual malice or whether the facts and circumstances are such that malice is presumed are questions for the jury, and even in case there is fraud or malice, the allowance of exemplary damages is not mandatory, but may or may not be allowed, in the discretion of the jury. "In most jurisdictions, an instruction to the jury as to the award of exemplary damages should be permissive and not mandatory." 17 C.J. 972; Huber v. Teuber, 3 MacArth. 484, 36 Am. Rep. 110; Georgia R. Electric Co. v. Baker, 1 Ga. App. 832, 58 S.E. 88; Browning v. Jones, 52 Ill. App. 597; Wimer v. Allbaugh, 78 Iowa, 79, 42 N.W. 587, 16 Am. St. Rep. 422; Louisville N.R. Co. v. Logan, 178 Ky. 29, 198 S.W. 537; Chesapeake O.R. Co. v. Conley,136 Ky. 601, 124 S.W. 861; Illinois C.R. Co. v. Houchins, 121 Ky. 526, 89 S.W. 530, 1 L.R.A.(N.S.) 375, 123 Am. St. Rep. 205; Sneve v. Lunder, 100 Minn. 5, 110 N.W. 99; Topolewski v. Plankinton Packing Co. 143 Wis. 52, 126 N.W. 554; Haberman v. Gasser,104 Wis. 98, 80 N.W. 105; Pickett v. Crook, 20 Wis. 358; 16 Cal. Jr. 136, § 102.

The defendants are sued as joint tort feasers in the publication of an alleged libelous article. It seems to be well settled that though compensatory damages may not be apportioned against joint tort feasors, exemplary damages, which under the statute are awarded in addition to actual damages, for example, by way of punishment, may be allowed in different amounts, depending upon the degree of culpability among the several wrongdoers. Thomson v. Catalina, 205 Cal. 402, 271 P. 198, 62 A.L.R. 235 and notes; Ætna L. Ins. Co. v. Brewer, 56 App. D.C. 283, 12 F.2d 818, 46 A.L.R. 1499; Nelson v. Halvorson,117 Minn. 255, 135 N.W. 818, Ann. Cas. 1913d 104.

Respondent, in his brief, states that the only questions of fact are (1) did the defendant, E.A. Hughes, cause the libelous matter to be published? (2) did the defendant, Mann, cause them to be published? (3) was the publication malicious and actuated by actual malice?

Under the plaintiff's contention the first question for the jury to determine is, did the defendant, E.A. Hughes, cause the publication of the alleged libelous matter? If he did not cause such publication or assist or abet in the publication of such matter, then no verdict can be rendered against Mr. Hughes for damages of any kind. If the jury should find that he did cause the publication of the alleged matter, the next question for the jury to determine is, did the defendant, Mann, cause the publication of such matter in the Bismarck Tribune, and if the jury should find that he did cause or assist in causing the publication of such matter, the next question for the jury to determine is, was the plaintiff injured by the publication of such matter, and if injured, what sum of money will compensate him for the actual damages sustained by reason of the publication.

If the jury determines that their verdict should be in favor of the plaintiff and against both of the defendants for compensatory damages, the jury may consider whether there was fraud or malice, actual or presumed, on the part of the defendants or either of them in the publication of such matter, and the form of verdicts submitted to the jury should be such as to permit it to render a verdict for the plaintiff as against the defendants or either of them for compensatory damages, and if they find that there was fraud or malice in the publication of the libelous article they may or may not allow examplary damages, and if, in their discretion, they decide to allow exemplary damages, they may allow such damages in different amounts, depending upon the degree of culpability between the defendants, or they may allow against one and not against the other, as it is a matter wholly within their discretion.

Rehearing denied.

NUESSLE, Ch. J., and BIRDZELL, CHRISTIANSON and BURR, JJ., concur.