
    John M. Rowe vs. Andrew J. Moses.
    Where in an action of trespass for assault and battery, the plaintiff gave evidence without objection, that defendant was a man of substance, held, on appeal by defendant, that the presiding judge properly charged the jury, “that the ability of the defendant to pay was one of the eireumstanoes which formed a just measure of damages.”
    In actions for an assault and battery, slander, malicions prosecution, and malicious torts generally, evidence of defendant’s wealth may be given: Semble.
    
    BEFORE WARDLAW, J., AT SUMTER, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows :
    “ Trespass for an assault and battery.
    “ The case made by the evidence was in substance as follows :
    “ The plaintiff was book-keeper for John China, at China’s hotel, in Sumterville. The defendant kept a store on the lot adjoining the hotel. Perry Moses, brother of defendant, was a creditor of John China, and a sale of the furniture in the hotel, had been made by the sheriff, under executions against John China, on the first Tuesday of October, 1855, at which most articles sold very low, and returned to the possession of John China.
    “ On the day after the sale, John China being in liquor, met Perry Moses in the street, at the hotel door, and said to him: 1 How dare you to go into my house, to bid on property, you d — d old son-of-a-bitch ?” and before any reply could be made, spit in Perry Moses’s face. Perry Moses knocked him down. A bustle ensued, and the defendant running up, asked, ‘ what is the matter ?’ Perry Moses gave to him some account of the affair, (whether he then mentioned the spitting in the face, did not appear,) and ended by saying, ‘If I had had a cowskin, I would have whipped the d — d rascal.’ The plaintiff, whose presence was then first noticed, said, ‘No, Mr. Moses, you would not have done so, if I had been present.’ Perry Moses answered him: ‘ Hush up your mouth, I am not talking to you.’ Plaintiff made no reply. Defendant and Perry Moses walked off together, towards the defendant’s store, and on the way the defendant picked up a stick, á small walking-stick of hickory (which was exhibited at the trial, about three-fourths of an inch in diameter.)
    “ Within ten minutes the defendant returned alone, to the hotel, with the same stick in his hand. The plaintiff was standing in the door. The defendant put one foot on the step, and said to the plaintiff: ‘ Why did you interfere between my brother and China ?’ The plaintiff answered, ‘ I did not interfere.’ The defendant replied, ‘you did, you d — d lying son-of-a-bitch.’- The plaintiff said, ‘Who do you call a lying son-of-a-bitch ?’ and stepped back, looking into the office of the hotel, which was near the front door, as if he was looking for something. The defendant seized him by the lappel of the coat with the left hand, and with the right struck him with the' stick, two blows, before the plaintiff returned a blow. A short scuffle followed, then a separation, during which the stick, nearly broken in two, was on the floor; then a re-engagement, in which the defendant again seized and used the stick. They were parted. The plaintiff said,. ‘ I’ll make you smoke for striking me for nothing.’ The defendant: ‘you cursed me,’ or, ‘ you-struck first.’ Plaintiff: ‘ I did not.’ Defendant: ‘ you did.’ Plaintiff: ‘ you’re a d — d liar.’
    . “ The defendant, in size and strength, was considered a match for the plaintiff, on equal terms. The defendant was shown to be a man of substance, and was, in argument, spoken of as a husband and the father of eleven children.
    “ After the .affair, the plaintiff’s eyes were black, his face was scratched, and there was a mark- across his nose. The defendant’s face was scratched, and he complained of his hand, which had been previously broken. Two weeks afterwards, a-physician found that the plaintiff’s nose was broken, but alb external bruises had then disappeared, and this suit had been commenced.
    “ I cautioned the jury against some remarks which had been made to them, about the poverty of the plaintiff, and the superiority in pecuniary condition which the defendant enjoyed, saying, that these matters were not to be considered, further than this, that the ability of the defendant to pay was one of the circumstances which formed a just measure of damages.
    “ The jury found for the plaintiff five hundred dollars.”
    The defendant appealed, and now moved for a new trial, upon the grounds:
    1. Because although his Honor properly stated to the jury that the fact of the plaintiff being poor entitled him no more to their consideration than if he was rich, yet it is respectfully submitted that it was error in his Honor to say, that they could take the circumstances of the defendant into consideration in fixing the amount of the verdict.
    2. Because the verdict of the jury as to" the damages was capricious, excessive and without just reason to sustain it.
    
      J. S. Gr. Richardson, Bellinger, for appellant,
    cited 2 Green. Ev. § 253, note 3, 6th ed., § 269. In Jones vs. Biddington, 6 Oar. & P. 589, which was an action for crim. con., evidence that defendant was a man of property was excluded. If the jury were not authorised to give vindictive, or rather punitory damages, then the evidence was improper and the charge was erroneous. In Warren vs. Austin, 4 Cush. 273, it was expressly ruled, that such damages i( cannot be recovered in an action for an injury which is also punishable by indictment; as libel and assault and battery. If they could, defendant might be punished twice for the same offence,” Dinkins vs. Debruhl, 2 N. & McO. 85.
    
      
      J. S. Richardson, Jr., contra,
    cited Sedgw. on Dam. 38, and commented on the authorities there cited in note.
   The opinion of the Court was delivered by

O'Neall, J.

The right of the jury in actions for assault and battery to find vindictive damages, has never before been questioned within my knowledge. In Chanellor vs. Vaughan, the jury, we are told by the Reporter, 2 Bay, 416, found heavy damages, in the case of a very unprovoked assault. The judges then said, “ It was their (the jury’s) province to weigh well and consider all the circumstances of the case, and to assess such damages, as they thought would be commensurate with the nature of the injury, and such as would effectually check such an evil.” This direction has been, in all subsequent cases, followed, and it may be here remarked, that although the party defendant, in assault and battery, may be liable both civilly and criminally, yet the damages found on the civil side of the Court, if they are regarded as a sufficient punishment, uniformly make the punishment criminally nominal.

But the objection mainly relied upon was, that the judge should not have said to the jury, that “the ability of the defendant to pay was one of the circumstances which formed a just measure of damages.” I think there was nothing erro, neous in this. For certainly damages might be oppressive, excessive and ruinous to a poor man, which would be a mere trifle out of the treasury of a rich one. Can the law be so absurd as to call that redress, which would be laughed to scorn by a defendant of wealth ?

I do not intend to follow the learned counsel through the mazes of the labyrinth of legal learning, in which they involved themselves. All this may be well enough for lawyers, but Judges are to decide, not talk. Hence a few reasons derived from a few cases will answer my purpose. ■ The general rule is very well stated in a recent work. 3 Graham & Waterman on New Trials, 1120. “In actions of assault and battery or of slander, there is no rule by which the damages' may be measured, but the same must be left to the discretion of the jury” To exercise that discretion properly must they not know, not only the rank and condition in life of the parties, but also as a part of it, the ability of the defendant to pay. In Bump vs. Betts, 23 Wend. 85, the court in deciding on the question of excessive damages, turn to the facts that the defendant had the command of great wealth, and that the plaintiff was a poor man, as two of the circumstances justifying the heavy verdict. In Connell vs. Hampton, 12 Johns. R. 235, proof was received that Gen. Hampton the defendant was in the receipt of an annual income of $60,000. Such evidence was received to justify a heavy verdict, and to show the ability of the defendant to pay.

In my long experience as a lawyer and a judge, I never knew an exception taken, in actions for assault and battery, slander, malicious prosecutions, and malicious torts generally, to evidence, of- the defendant’s wealth; and if such proof could now be excluded, or the judge restrained from commenting on it, as a measure of damages, it would be in fact to reverse a course of justice coeval with the administration of it by the Courts of this State.

The motion is dismissed.

Wardlaw, Withers, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed.  