
    Samuel Finney v. Joseph Smith and others.
    In an action for libel, the jury may, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation, not amounting to a justification.
    Motion for leave to file petition in error to reverse the ’ judgment of the District Court of Adams county.
    Samuel Einney, the plaintiff in error, -was plaintiff in the court of common pleas, where he brought an action against Joseph Smith and others,-to recover damages alleged to have been occasioned to his reputation, trade, and business as a druggist, apothecary, and grocer, by means of a libel written, signed, published, and circulated by the defendants.
    After the statement of matters, by way of inducement, the petition alleges that the defendants, on the 5th day of December, 1874, at the Village of North Liberty, in the county and state aforesaid, falsely, wickedly, and maliciously did compose and publish, and cause to be composed and published, of and concerning the plaintiff, and of and concerning his conduct as such apothecary, druggist, and grocery-keeper, and respecting his said business, a certain false, scandalous, malicious, and defamatory matter following, of and concerning the plaintiff'and his conduct in the premises, that is to say :
    “We are fully satisfied that intoxicating liquors (meaning thereby whisky and brandy) have been received by the druggist of .this place, Mr. Samuel Einney (thereby meaning the plaintiff herein), in such quantities as to warrant the belief that the said Einney intends to sell it otherwise than for medicinal purposes, namely, to be drank as a beverage (meaning thereby that the plaintiff was then keeping and vending intoxicating liquors, to wit, whisky and brandy, to jbe drank as a beverage, and not to be used for medicinal purposes only). Therefore, resolved, that we, the undersigned citizens of North Liberty and vicinity, demand that said Einney forthwith send said liquors from our community; and we further pledge ourselves not to patronize any individual in business, who will outrage the well-known wishes of our community by selling intoxicating drinks as a beverage in this village or community.
    “Dated North Liberty, Adams county, Ohio, December 5, 1874.”
    On the trial, the plaintiff gave evidence to the jury, tending to prove the allegations of the petition.
    In its charge, the court, among other things, instructed the jury as follows: “ I have said to you already, substantially, that if the defendants published the paper in manner and form as alleged, and that injury resulted to the plaintiff from and by reason of such publication, he will be entitled to recover such'damages as he has directly sustained; and, in estimating compensatory damages, you may take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution offhis action. If the publication was made with a bad motive or wicked intention, you may go beyond mere compensation, and award vindictive or punitive damages—that is, damages by way of punishment.”
    To this part of the charge, the defendant below excepted.
    There was a verdict for the plaintiff for $269. The defendants below moved for a new trial, which motion was overruled, and judgment entered on the verdict.
    On error, the district court reversed the judgment, on the ground : “ that there was error in the charge of the court, as excepted to by the defendants below, and set out in their bill of exceptions specifically.” This refers to that part of the charge above quoted.
    By this proceeding, the reversal of the judgment of the district court, and the affirmance of that of the court of common pleas is sought.
    White, Waters McKnight, for the motion.
    
      J. M. Wells, F. D. Bayliss and G. G. W. Naylor, contra.
   Gilmore, J.

The district court reversed the judgment of the court of common pleas, solely on the ground that the latter court erred in instructing the jury that in estimating compensatory damages, the reasonable fees of counsel employed by the plaintiff in prosecuting his action, might be taken into consideration.

This is the only point that has been argued by counsel on either side, and is the only point that will be considered in the opinion.

"While there is a conflict in the authorities as to whether counsel fees can be allowed in estimating damages, in actions of tort, where no wrong, in the moral sense of the term, is complained of; it seems to be settled in this state, at least, that in cases proper for the infliction of exemplary damages, such fees may be taken iuto consideration by the jury in estimating the damages of the injured party. There is also conflict in the authorities, as to whether, in the latter class of cases, the counsel fees of the injured party are to be estimated and allowed as compensatory damages, or whether they are only to be considered by the jury in estimating the exemplary damages that the injured party is entitled to recover. This is, however, no longer, if it ever was, an open question in this state.

Stevens and Wife v. Handly, Wright 121, was an action of slander, in which the words spoken were actionable per se, and were spoken in an aggravating manner, indicating malice. In mitigation of damages, it was argued, that they were spoken under provocation and a misapprehension of facts. The court instructed the jury, that if the words were uttered under circumstances merely mitigating, without justification or excuse, the damages should be compensatory; that they should be sufficient to cover all the expenses and costs of the plaintiff in litigating the matter, including their loss of time—such as will make them whole; and if they were spoken without excuse or mitigating circumstances, the damages should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it. The first hypothesis presents a case for compensation only, yet we have no doubt that when the court spoke of “ all the expenses,” the counsel fees of the injured party in the suit were intended to be included, though they are not in terms mentioned ; indeed it must be so, for the court speaks of “ costs ” and “lossof time” as matters to be compensated,in addition to “ all the expenses ”—•“ such as will make them whole.” The injured party would not be made whole as to all expenses, unless his counsel fees were covered and included. The second hypothesis presents a case where the words were maliciously spoken, without excuse or mitigating circumstances, and in which the court says the damages should be exemplary; and the reasons given for this show, that the court did not intend that the exemplary damages to he given in such a case should include anything that had just before been spoken of as compensatory damages ; but damages ill addition to compensation. ;

The case of Sexton v. Todd, Wright, 316, is to the same effect. The case of Roberts v. Mason, 10 Ohio St. 277, was an action to recover damages for an assault and battery, committed under aggravating circumstances. On the trial, in the court of common pleas, the instruction complained of was as follows : “ The jury are at liberty, if they see fit, to allow the plaintiff, as part of his actual or compensatory damages, any reasonable expenditure for counsel fees, which are necessarily incurred in the prosecution of this suit. But the law leaves this to the discretion of the jury, under all the circumstances of the case.”

This instruction was held not to be erroneous, but the judge writing the opinion seems to have hesitated about affirming it in terms. He says : “ In cases where the act complained of is tainted by fraud, or involves an ingredient of malice or insult, the jury, which has power to punish, has necessarily the right to include the consideration of proper and reasonable counsel fees, in their estimate of damages.” This language is open to the inference that counsel fees, in such cases, are to be allowed as punitive, and not as compensatory damages. In the syllabus of the case, however, it is said: “In such a case, the jury may, in their estimate of compensatory damages, take into con-, sideration and include reasonable fees for counsel employed by the plaintiff in the prosecution of his action.”

There is a manifest descrepancy, as above indicated, between the language of the opinion and the syllabus. In argument, this case is the only authority cited and relied upon by counsel on the respective sides of the case before us. Mr. Sedgwick in his treatise on the measure of damages (6th edition, 111), in a note, after quoting the language of Judge Brinkerhoff, in Roberts v. Mason, says : “ But although in this (Ohio) and some other states counsel fees are permitted to. be considered by the jury in fixing the damages—and, indeed, can practically hardly be excluded from their consideration where, in actions of tort, the law does not furnish an exact measure—it is difficult to see why such expenses should be allowed under the head of exemplary damages. The plaintiff’s counsel fees are an expense incurred by him, and their reimbursement to him brings the measure of damages back toward the standard of compensation. It is an item of compensation, indeed, not usually allowed on what still seems to be the theory of the law, that every man cau be his own advocate'; but, nevertheless, it is really compensation. . . . The allowance of counsel fees, or their supposed equivalent, in this class of cases, must be regarded as the result of an instinct or inclination on the part of the bench to return to the standard of compensation.” In this connection he cites Fairbanks v. Witter, 18 Wis. 287, in which similar views are expressed, the court saying: “ Counsel fees can no more be allowed in actions where punitory damages can be given than in others;” and that if they can “be assessed by the jury, it must be on the principle that they are consequential damages, and relate to the amount of compensation, rather than refer to damages which may be inflicted by way of penalty or punishment for aggravated misconduct.”

It will be seen that the learned author, while dissenting from what he- supposes to be Judge Brinkerhoff’s view, that counsel fees, in such cases, may be allowed by the jury as a punishment, or as exemplary damages; proceeds to show that such fees are an expense incurred, and that their reimbursement to him is really compensation.

This is substantially the rule as expressed in the syllabus in Roberts v. Mason, and is certainly in accordance with the spirit of the rule, as laid down in Stevens v. Handy, and Sexton v. Todd, above cited.

In this state it must, therefore, be regarded as settled, that in actions of tort, involving malice, fraud, insult, or oppression, the jury may, in estimating compensatory damages, take into consideration the reasonable counsel fees of the plaintiff in prosecuting his action for the redress of his injuries, against the wrong-doer, even where there are mitigating circumstances not amounting to a justification.

In the case before us, it is charged in the petition that the libel was published maliciously, and with the intention of injuring the plaintiff, and destroying his business, and that the defendants confederated together for this purpose.

The testimony, which is made part of the record by bill of exceptions, certainly tends to establish the charges in the petition. If the charges were fully proved, which was left to the jury, enough was shown to evince an intention on the part of the defendants to oppress the plaintiff and crush out his business, and it was'for these that he sought, and for which the law entitled him to recover, damages.

On the other hand, while the testimony did not make a justification or legal excuse for the acts of the defendants, it tended to show that the defendants may have acted under a misapprehension as to the main fact, and which the plaintiff’s acts may have lent color to, and all of which the jury was instructed to consider in mitigation of damages. This is substantially the case presented in Stevens v. Handley, in which the jury was instructed to allow full compensation—to make the plaintiffs whole ; and which we construe to include their counsel fees. This case seems to have been followed by the court in its instructions to the jurytin the case before us. The clause of the charge excepted to, is not drawn with accuracy and fullness of expression in itself, but, when taken in connection with the whole charge, which is set out, we do not find it erroneous; and we see no reason to apprehend that the jury could have been misled by it to the prejudice of the defendants. The district court, therefore, erred in reversing the judgment of the court of common pleas.

There were many other exceptions taken, and assigned for error on the record, all of which we have considered but find no errors to the prejudice of the defendants below.

Motion granted. The judgment of the district court reversed, and that of the court of common pleas affirmed.

Judgment accordingly.

Boynton, J

.I place my concurrence in the decision in this case on the ground that the publication of the defendants below, set out in the petition, being shown to be untrue, is a libel. I am not prepared to agree that counsel fees, in any action in tort, constitute a proper item for compensation in damages, unless the case is one in which the jury would be justified in awarding punitive or exemplary damages.  