
    John Roberts v. David Mason.
    1. In an action to recover damages for a tort which involves the ingredients of fraud, malice, or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages; and this they may do, although the defendant may have been punished criminally for the same wrong.
    2. In such a case, the jury may, in their estimate of compensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of his action.
    Error to the district court of Warren county.
    The defendant in error brought a civil action, in the *common pleas of Warren county, against the plaintiff in error, to recover damages for an assault and battery. The ease having been taken, by appeal, to the district court of that county, it was there tried to a jury, at the June term, 1857, and the plaintiff below had a verdict and judgment for $700; to reverse which this petition in error is prosecuted.
    It appears, from the bill of exceptions, that on the trial in the district court, “The defendant, for the purpose of maintaining his defense, offered, among other items of evidence, the record of the conviction of the defendant for the same assault and battery, in a criminal prosecution; by which record it appeared that the defendant had been sentenced to a fine of one hundred dollars, and imprisonment for six days in the dungeon of the county jail, and to pay the costs of the prosecution, amounting to five hundred and fifty-seven dollars and fifty-four cents, he having been indicted for stabbing with intent to kill; and the jury after full investigation disagreeing, he pleaded guilty to assault and battery, which record was received and went to the jury. Whereupon the defendant asked the court to charge the jury that, inasmuch as the defendant had already been punished, on the criminal side of the court, for the same alleged assault and battery, the jury could not, in this cause, give the plaintiff, if they should find in his favor, anything more than a compensation for his injuries, received by him in said assault and battery, but could not increase the amount of the verdict they should render for the plaintiff, by including therein anything on account of exemplary, vindictive, or punitive damages. Which charge the court declined to give; but charged the jury as follows, to wit: ‘But you may, if you see sufficient reason for it, go further than mere compensation'. If you find, from the circumstances in evidence, that the conduct of the defendant was not the result of fear of injury to himself, nor such excitement as the circumstanees of the case might arouse in the mind *of a man of ordinary good temper, but was the result of settled hatred against the plaintiff, or of a cruel and malignant disposition, brought into action by the occasion, the jury may go beyond compensation for loss and suffering, and may add any sum you may think reasonable by way of punishment of the defendant, and of example to the public. But in adding any sum to your verdict by way of punishment and example, it will be proper for you to consider the punishment, fine, and costs adjudged against the defendant in the criminal prosecution. But this evidence can, under no circumstances be considered for the purpose of lessening the compensation of the plaintiff for his loss, anxiety, and suffering, but only for the purpose of aiding you to -determine whether any other sum, and, if any, how much more should be added, by way of punishment and example.’ ” To which charge the defendant excepted.
    After the jury had been charged by the court, they made the following inquiry of the court: “ If your honor please, are we to consider Mason’s lawyer’s fees as compensatory damages ? If so, and you are at liberty and so disposed, please inform us to that effect.” To this inquiry the court responded: “ The jury are at liberty, if they see fit, to allow the plaintiff, as part of his actual or satory 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.”
    The refusal of the court to charge as requested, and the charge as given, are assigned for error.
    
      Durbin Ward, for plaintiff in error.
    
      George J. & J. B. Smith, and J. K. Oneall, for defendant in error.
   Brinkerhorr, C. J.

That in cases of tort, where express malice *is shown to have prompted the wrong complained of, the law, instead of adhering to the rule of compensation merely, permits a jury to go further, and, blending together the interest of society and of the individual aggrieved, to give damage not only to recompense the sufferer, but to punish the offender, is a doctrine which has of late been questioned. 2 Greenl. on Ev., sec. 253. But it seems to us, that if any thing can be settled by judicial decision and long and general practice, this doctrine must be regarded as thus settled. A review of the cases on the point would be a work of supererogation. That labor has been well done for us by Mr. Sedgwick, in his work on the Measure of Damages, page 455, et seq. See also, Hunt v. Bennett, 19 N.Y. 173. The rule was distinctly recognized in Stevens v. Handly, Wright, 121, and in Simpson v. McCaffrey, 13 Ohio, 522; and ever since either of us have had any acquaintance with the jurisprudence of Ohio, the rule has been considered, so far as we know, established and elementary. If an alteration of the rule were deemed desirable, therefore, it would come more properly from the legislature than from us. But we are not prepared to recommend any such alteration. In a case of this kind, twelve intelligent and impartial men, acting under oath, and subject, in a proper case, to the control of the court, are not likely to-do any great wrong; and it seems to us that the power which this rule confers upon a jury, may, in practice, operate as a salutary restraint upon the evil passions of bad men.

The second question in this case is whether the defendant, having been punished criminally for the wrong complained of in the civil action, and that fact being given in evidence to the jury, the-rule is rendered inapplicable; or, in other words, whether the jury may nevertheless give exemplary damages?

It is at least questionable whether evidence of the criminal conviction was not, as being res inter alois acta, entirely, incompetent. But if there was error here, it was in favor of the plaintiff in error; and so the question is not properly before us, and we therefore refrain from any attempt to pass upon it.

It seems that in England, whore the injured party prosecutes criminally for an assault and battery, and the defendant is convicted and fined, the party aggrieved receives a portion of the fine imposed; and in such a case, whore the injured party subsequently brings a civil suit for the battery, it was held that, having applied for and received his portion of the fine, he could recover only nominal damages. Jacks v. Bell, 3 Car. & Payne, 316. But the reason of that holding, resting upon the peculiar regulations mentioned, can have no application here.

The precise question before us has, however, been passed upon by the Supreme Court of New York, in Cook v. Ellis, 6 Hill, 466. That case was, in all its features, entirely analogous to the one at bar, except in this, that there the fine was shown to have been paid, while hero it does not appear whether the fine had been paid or the imprisonment inflicted or not.

In that case it was held, that “ though it appeared that the defendant had been prosecuted criminally for the same matter, and fined $250, which he had paid,” yet “ the plaintiff might nevertheless recover exemplary damages, if the jury thought proper to allow them.” And though those questions were not necessarily involved in the case, yet the court go on to express the opinion, that the fact of the defendant having been punished criminally for the «ame assault and battery, can not be given in evidence to mitigate the damages in the civil suit, if the plaintiff object; that whore a civil action and a criminal prosecution for the same assault and battery are pending at the same time, the court exercising the •criminal jurisdiction, after conviction in the criminal case, ought, with a view to the measure of punishment, to suspend judgment until *the decision in the civil action ; but that the proceedings in the civil action ought not to be stayed to await the event of the criminal prosecution. Upon these points we express no opinion : but from the holding of the court upon the point in the case necessary to its decision, we see no reason to dissent, and it is decisive of the second question made in the case before us.

The third and last question is, was it competent for the jury to ■take into consideration and include reasonable fees of counselj properly employed by the pilaintiff, in their estimate of compensatory damages?

On this point the authorities are not uniform; but the .better opinion now seems to be, that in actions ex contractu, and in cases nominally in tort, but where no wrong in the moral sense of the •term is complained of, the fees of counsel ought not to be included in the estimate of damages; but 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. Sedgwick on the Measure of Damages, 95-97; Linslay v. Bushnell, 15 Conn. 225; Noyes v. Ward, 19 Conn. 250; Marshall v. Betner, 17 Ala. 833. This rule has been recognized by the old Supreme Court of this state on the circuit. Stephens v. Handiy, Wright, above cited, and Sexton v. Todd, 316. And the rule seems to us to be in itself reasonable and just.

No evidence in this ease appears to have been given to the jury ■on the subject of counsel fees; nor do we think such evidence ought to have been given or received. But the fact that the plaintiff ■would necessarily be subjected to expenses of that kind, was properly taken into consideration and allowed, as a circumstance in the •case patent before them.

We see no error, either in the charge of the court below *or ■in its refusal to charge as requested, of which the plaintiff in error is entitled to take advantage. .

Judgment affirmed.

Scott, Sutlier, Peck, and Gt-iolson, JJ., concurred.  