
    Charles Eupes (Yops), Respondent, v. Peter Nephue, Appellant.
    Third Department,
    June 25, 1907.
    Criminal conversation — punitive damage — erroneous charge.
    In an action for criminal conversation it is error to charge, in effect that the jury should give punitive damages. .
    In action's in tort where the circumstances warrant exemplary damages, the.j.ury always has discretion to say whether in the particular case such damages are to he given.
    Appeal by the defendant, Peter Nephue, from a, judgment of' the Supreme Court in favor of the plaintiff, entered in the office of'the clerk of the county of Franklin on the'23d day of November, 1906, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 19th day of December, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      B. W. Berry, for the appellant.
    
      Charles A. Burke, for the respondent.
   Smith, P. J.:

This action, as it Was finally submitted to the jury, was an action for criminal conversation. The trial judge instructed the jury as to the rule of damages in the following words: “ That marriage relation is at the very basis of our good government, and the law' properly says that if a man does violate the sacredness of the mar.riage relation that he may be held in damage for it. And those'' damages are not the money damages as are recovered in an action where yon are required to prove the dollars and cents you have suffered. Those damages are punitive damages,' for the purpose of. teaching us as citizens that that kind of a wrong shall not be done to a man or a woman, because their married partner is led away, apd particularly bécause the woman has been enticed from the husband"; becausé a man has had sexual intercourse with her, kndwing that she was-the wife of another man. If lie-has had, he is liable to damages, and those damages should be punitive damages, enough so that he will realize that the cotrts and the juries, say that the marriage relation, that the home, that -the; citizens of' this country shall have protection.” ■ At.the close of the charge the defendant excepted “ to that portion of the charge' in which it is said- that the jury should give punitive damages.” In Jacobs v. Sire (4 Misc. Rep. 398), in an action for breach of promise to marry, the jury were charged that if the act of the defendant was malicious they were ' bound to give punitive damages. This charge was held error, in that it deprived the jury, in case they found the facts referred to, of all discretion on the question whether exemplary damages should or should not be given.” At page 400 Judge Freedman, in writing . the opinion of the Superior-Court,'says'; ■ Even in actions for tort of an aggravated character it is within the discretion of tlie jury to say. whether or not exemplary damages,' or vindictive or punitive damages as. they are sometimes called, shall or shall not be given, and such discretion is to be exercised upon all the-facts and circum-stances as a punishment to the defendant and as a protection' to .society against a violation of personal rights, and social order. (Volts v. Blackmar, 64 N. Y. 440.) ” In 12 American and English (Encyclopedia of Law (2d ed. p. 51) it is stated: “ The rule that the question of exemplary damages is one for the jury in the exercise of their discretion has been'held to apply, though if was. established in point of fact that elements existed which would, according to the general rule of exemplary damages, warrant such an assessment. ,It has- been held,'therefore, to be erroneous to instruct the ■ jury that in any state of facts it is their duty to award exemplary damages, or that they should,.will, ought to, or must do so; or that if they find a given state of.facts the plaintiff is entitled to' recover, such damages. ' And so carefully is the discretion of the jury guarded in this particular, it has been declared, that an instruction several times ■ repeated which seemed to invite the jury to give punitive damages "Was , erroneous.” , In Samuels v. Evening Mail Association (9 Hun, 294) Davis, P. J., writing -the dissenting opinion, which was ■ afterwards. adopted by the Court of Appeals (75 N. Y. 604), after discussing the rights of the defendant to show that there wás no actual malice, says: When he (the defendant) gives no such evidence it- is the duty .of the court to' say to the jury that, upon proof of the falsity of the libel, the plaintiff is- entitled to- exemplary

damages in their discretion.” In Bergmann v. Jones (94 N. Y. 62) Judge Milleb, in writing upon appeal .from a judgment in an action of libel, said : “Upon the charge made against "the plaintiff in the article published, the falsity of which was made to appear, it was for the jury to say in their discretion whether punitive or exemplary damages should be awarded.” (See, also, Chellis v. Chapman, 125 N. Y. 222.)

I From these authorities it would seem to be established that in actions for tort where the circumstances are such as to warrant exemplary damages the jury always has a discretion to say whether in the particular case exemplary damages are to be given. This discretion was taken from the jury in the case at bar, and it cannot be said that the error was one which did not influence the verdict.

The judgment should, therefore, be reversed and new trial granted, with costs- to appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  