. a. E:Perkins
Ohar'ldE., Searls, 'for
(chargingjti,ry.); 1. ltheing adhIilted thfl;t the defend-:ant was for. tqe plaintiff, i t the duty. of the defendant, upon receipt of the notice, dated July 31, 1885, peremptorily ordering him to cancel the risk, to proceed to do so with all reasonable 2. It being admitted thatJhe office of the agent was within five minutes' walk of the office and place of business of E. T. Whitmore & Co., the insured, the agent's neglect to cancel said policy for a period of more than six days after the receipt ofsnid peremptory order was such a neglect of duty as would render the defsndant liable to the plaintiff for the loss incurred by the plaintiff in consequence thereof. 3. That the delay after the receipt of the notice dated July 31st, is not excused by the fact-if it should be found-that the agent believed that the company were mi,stakeri as to the safetyor danger of the risk, or as to the wisdom of retaining the risk. 4. Thatif the agent delayed complying with the peremptory orders of company to cancel therisk,and did so delay from a mistaken view of, the safety of the risk and the wisdom of canceling it, or in the hope of persuading the plaintiff to continue the risk, the delay in the mean time was at his own peril and at his own risk if a fire should occur. 5. If the second order to cancel, dated the 7th day of August, 1885, was receivedpy the agent in such season that he had one or two days the day of the fire in which to cancel the risk, and he made 110 89 to do, such neglect on the part of the defendant was a breach oJ his duty, and would render him liable for the damages which the pany suffered in consequence there9f. The court further charged ,adopting the language in the case of Courcier v. Ritter, 4 Wash. C. C. 551, as to instructions to an agent: "If theorderleaves him a discretion. the law requires of him Dothingfurther than the exercise of a sound. honest jUdgment. But if the order be free from ambiguity. is positive and unqualified, it must be rigidly obeyed. if it be practicable; and DO motive connected with the interest of the principal, however honestly entei'tained, or however Wisely adopted. can excuse a breach of it."
OLARKE 11. AMERICAN
IMPROVEMENT CO. et aZ.
(Circuit Court, So E. New York. Jult 8, 1888.)
DAMAGES-FOR P!:RSONAL TORT-ExCESSIVE-FALSE IilPIusONMlIlNT-MALICIOU8 PROSECUTION.
Where plaintiff, a respectable woman, was arrested at the instigation of de· fendants; uponfalse charges of a forcible entry into a house of one of defendants. where she and her family had been liVIng, ana of an assault upon the other defendant; and was committed to jail with disorderly women, and required to give sureties of the peace without trial, and the arrest was procured without reasonable or probable cause, for the purpose of keeping plaintiff
CLARKE tI. AMERICAN DOCK & IMPROVEMENT CO.
from the house until defendant could put her things out and tear down the house. a verdict of $4,000, in an action for malicious prosecution and false imprisonment. is not so manifestly excessive as to require a new trial. 1
At Law. On motion for new trial. T. Oarnpbell and H. S. Ogden, for plaintiff. R·.W. D6Forrerst, for defendants.
J. This is an action for malicious prosecution and false imprisonment. The jury found a verdict for the plaintiff with $4,000 damages. The deitmdants have moved for a new trial solely because of excessive damages. In Gilbert v. Burtenshaw, Cowp. 230, on a similar motion in a similar action, Lord MANSFIELD said: "I should be sorry to say that in cases of personal torts no new"trial should ever be granted for damages which manifestJy Bhow the jury to have been .actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds indeed, and such as internal evidence of internperancein the minds of the jury. It is by no means to be done where the court may feel that, if they had been on the jury, they would have given leSs damages, or where they might. think the jury themselves would have completely discharged their duty in giving a less sum. Of all the cases left to a jury none is more emphatically left to their sound discretion than such a case as this; and unless it appears that the damages are flagrantly outrageous and extravagant, it is difficult for the court to dmw the line." In Whipple v.Manufacturilng 00.,2 Story, 661, Mr. Justice STORY said that a verdict should not be set aside for excessive damages in cases of tort, "unless the courteau clearly see that the jury have committed some very gross apd palpable error, or have acted under some improper bias, influence, or prejudice, or· have totally mistaken the rules of law by which the dam,ages are to be regulated." In Barryv. Edmunda, 116 U. S. 550,6 Sup. Ct. Rep. 501, this language of Mr. Justice STORY is quoted with approval, .several of the many other cases on the subject· are reviewed, and the court, .by Mr.Justice MATTHEWS, adds: "In no case'ijit permissible for the court to substitute itself for the jury. and compel a, compliance on the part of the latter with its own view of the facts in evidence as· the standard and measure of that justice which the jury itself is the appointed constitutional to award." In this case the plaintiff was, so far as has been shown or is claimed, a respectable woman, the wife of a ship carpenter, and the mother of a family of six daughters, some of whom were grown up and away, and others were small and at home. She was arrested at the instigation of the defendants on what the jury must have found to be false charges of forcible entry into a house of one of the defendants, where she had been living with her family, and of an assault upon the other defendant, and of a gross breach of the peace, and taken before a police court, and committed to jail with disorderly women, in default of bail immediately required under pretense of awaiting trial, and afterwards required to give sureties of the peace without trial, without any reasonable or probable
1See Dote at end of case.
Cause, for the purpose of getting and keeping her away from the house until the defendants could put out her things and tear down the house. The actual pecuniary damages might be small; but the disgrace, humiliation, and shame of being arrested and sent tb jail on such charges, for the sense and suffering of which she was entitled to recover damages, might be great. What would be adequate compensation could be measured by no standard, and the amount might properly be enhanced by the wanton disregard of the plaintiff's personal rights in taking such proceedings. Day v, Woodworth, 13 How. 363. It must rest in the judgment and discretion of the jury,and remain there, unless the jury are clearly made to appear to hl;lve departed from the exercise of their judgment and discretion. There is nothing shown nor claimed in that direction unless it is to be inferred from the amount of the verdict. That is not so very g"eat, in view of all the circumstances of the case, as to show that it was reached otherwise than by considerate estimate. The motion cannot be granted but by an arbitrary exercise of the judgment of the court over that of the jury on a matter purely.of fact confided by the law to that of the jury. This would be manifestly improper. Motion denied, and stay vacated.
In actions for damages for personal torts it is within the strict province of the jury to estimate the extent of the injurYt and assess the and unless there is a manifest abuse of this trust, such as to Indicate passion, preJudice, partiality, or unaccountable caprice or corruption, the trial judge ought not to interfere, and grant a new trial; and where t.hetrial judge, as shown Oy the record on appeal, has expressed his disapproval of the verdict as being excessive, yet refused to, set it aside in order that the supreme court mil5ht pass upon the facts, the supreme court will not, upon the ground of such disapproval or dissatisfaction with the amount of the verdict, grant a new trial Railroad Co. v. Roddy, (Tenn.) 5 S. W. Rep. 286. See, also, cases cited in note. In Spear v. Hiles, (Wis.) 80 N. W. Rep. 506, which was an action for malicious prosecution, the following charge of the trial court was approved on appeal: "If the jury find that the defendant wantonly and malioiously caused the arrest of the plaintiff, with intent to injure his feelings, and disgrace him in the estimation of the public, the jury not only may, but they ought to, go further, and give punitory 'damages in such a sum as will be a warning to the defendant and all other persons not to commit such wrongs ,and injuries. Punitory damages are given in law as an admonition to the defendant and all other persons not to perpetrate similar wrongs, and consequently such damages, to be effectual, must have some relation to the financial ability of the defendant." See, furtber, on the subject of exemplary damages in actions ex delilcto, the cases cited in note to aoove case. As to the allowance of exemplary damages for maliciously suing out an attachment, see Rice v. :Miller, (Tax.) 8 S. W. Rep. 317. and cases cited.in note.
D.uu.GEB-ExCESflIVE-IN ACTIONS Ex DELICTO.
HUE'Y II. lIfACONCOUN1'Y.
JONES V. SAME.
(OVrcuit Oourt, E. D. Mi8souri, N. D. May '28,1888.)
RAILROAD VARIANCE. BONDS-AcTlONSON BONDS-PLEADING-
Where the proof shows that the county court had power to issue the bonds under any law, a variance between the allegations and the proof. as to the particular law under which the bonds were issued, is immaterial; it being the duty of the court to allow the to bl' amended to conform to the proof. Where a county issues railroad bonds, the coupons thereto attached are sub· jectto the same period of limitation as the bonds. and. that time having elapsed from the date of the maturity of the coupons, they are barred, al· though not detached from the bonds.
SAME-INTEREST ON COUPONS. OF ACTION.
Ooupons bear interest from the date of their maturity; and in an aption thereon in Missouri coupons payable out of the state will be allowed the same. rate of interest as those payable in the state, no proof of the rate of interest in the foreign state being offered. ,
At Law. Macon county, and by Joseph E, Action by John E. Huey Jones against same, upon railroad bonds and coupons issued by defendant. Sanders Bowers, for plaintiffs. . R. G. Mitchell and Dysart, for defendant. ,THAY];R, J. In these cases plaintiffs are entitled to a judgment on the bonds by them severally sued upon, and on all the coupons except coupons Nos. 6, 7,and 8, attached to each of bonds Nos. 3, 12, 13 and 14. 1. The only defense aflecting an of the causes of·action is that of a' variance between the proof and allegations. It is claimed that the respective plaintiffs have alleged that the bonds in suit were issued uooer section 17 of the general railroad law,in force in the year 1866, whereas it is contended that the proof shows that the bonds were issued under the thirteenth section of a special act, approved February 20, 1865, to incorporate the Missouri & Mississippi Railroad. The defense cannot. prevail, for two reasons: First. Because there is, no variance. The dec;. laration does not aver that the bonds were issued under the general railroad law. The allegation is that "plaintifls bought the bonds in relianoo upon that law, and that it was in force when the bonds were issued." Other portions of the declaration, however, show that the bonds were issued under the special act of February 20, Second. But even if there was a 'variance of the kind,supposed , (that is to say, a failure to state accurately the particular law under which the county court deriVed' v.35F.no.7 -31