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told the jury: "The law has fixed no definite rule of damages; but the plaintiff is entitled to recover a fair and reasonable indemnity for the injuries he has received in his person and health, so far as you can, as reasonable men, acting without vindictive feelings, ascertain the amount. In actions of this character there is no rule of damages fixed by law, as in cases of contract, trover, etc. The object is the satisfaction and remuneration for a personal injury which is not capable of an exact cash valuation."

This is all well enough; but the court above, not content to let well enough alone, while expressly approving and sustaining the charge, treat it as instruction to the jury that they might award exemplary damages, when (it seems to me quite clear) the judge presiding at the trial had no such intention or notion.

The court above, seemingly unable to conceive of compensation otherwise than by the application of such a market value as may be applied to a material loss, go on to enlarge and explain, while they commend, the charge to the jury as follows: "The circumstances of aggravation or mitigation, the injury to the plaintiff's business and means of livelihood, past and prospective, all these and many other circumstances may be taken into consideration by the jury in guiding their discretion in assessing damages for a wanton personal injury."

All this, too, is well enough, for all these considerations affect the plaintiff's actual compensation. It was, therefore, quite unnecessary to go on and say-what the court below found it entirely unnecessary to say, and what was not intended by the trial judge"there is no principle better established, and no practice more universal, than that vindictive damages, or smart money, may be, and are, awarded by the verdicts of juries, in cases of wanton and malicious injuries."

This last paragraph illustrates the confusion of ideas which lies at the foundation of the great mass of cases which go to make up the authority, so called, for the imposition of double or treble damages, and a fine upon the top of all, under the denomination of exemplary or vindictive damages.

Therefore it was natural that Huntley v. Bacon, 15 Conn. 267, should follow, two years later, in the same track. The charge to the jury was: "If you find the trespass complained of was committed maliciously, or in a wanton or aggravated manner, and with design to injure and vex the plaintiff, you may render a verdict for

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such sum as you shall judge to be reasonable and proper, under the circumstances."

These instructions were held to be correct (as they clearly were); but the court above must needs invoke for their support the authority of the preceding case, assuming that the court below had instructed the jury that they might give vindictive damages, instead of damages compensatory of the plaintiff's vexation.

In the opinion, by the same judge who delivered the opinion in Linsley v. Bushnell, is cited Dennison v. Hyde, 6 Conn. 508, where it is only said (referring to Nichols v. Bronson, 2 Day, 211, Edwards v. Beach, 3 id. 447, and Churchill v. Watson, 5 id. 140), "there is no precise rule of damages in actions of this description-trespass vi et armis; not only the direct damage (as if wanton vexation and annoyance were remote or consequential, and therefore not compensatory), but the probable or inevitable damages, and those which result from the aggravating circumstances attending the act, are proper to be estimated by the jury."

The author of the present discourse finds such lucubrations as these both aggravating and vexatious; and not remote, but consequentially direct, demanding compensation for the trouble of their consideration.

*

After such expositions of the law as these, we are scarce prepared for the brightness of the lucid interval which dawns, transiently, upon the Connecticut courts in 1853; and we are quite startled to find that, in Segar v. Buckhamster, 22 Conn. 290, an action to recover damages sustained by reason of a defective bridge, the judge at nisi prius having told the jury they had a right to consider all the circumstances of danger and peril attending the accident, the Supreme Court (STORRS, J.) say: "We think this part of the charge was right. It is not necessary to inquire whether or how far vindictive or punitory damages are allowable. That the plaintiff is entitled to be compensated for his actual personal injury, there is, of course, no question; and that principle is sufficient to vindicate the charge on this point. Such actual injury is not confined to the wounds and bruises upon his body, but extends to his mental suffering. His mind is no less a part of his person than his body; and the sufferings of the former are oftentimes more acute and also more lasting than those of the latter and

to say that [these do] not enter into the character and extent of

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the actual injury and form a part of it, would be an affront to com

Darkness supervenes in a brief period, for, in 1857, the court declare it to be "settled in this State that a jury may give damages beyond a mere compensation, and exemplary or vindictive damages in case of malice or wantonness. Dibble v. Morris, 26 Conn. 416. And chaos comes again in 1862, when the court declare that "in cases of gross and willful fraud, a jury are at liberty to give, and the course of our decisions has been to encourage, what are sometimes called vindictive or exemplary damages. The object intended in these cases is to give the plaintiff a full indemnity for his injury." Platt v. Brown, 30 Conn. 336.

The court leave us in the dark as to whether what are 66 'sometimes called" vindictive or exemplary damages are, in their judgment, properly or improperly thus denominated.

We may venture no further in this direction. It were better if we had recognized the "characters in color dim" inscribed upon the portal of our entrance:

*Lasciate ogni speranza voi ch' entrate."

The doctrine of exemplary damages is undoubtedly recognized in Illinois; but in Tyndt v. Hartranft, 41 Ill. 10; Recder v. Purdy, 48 id. 261, and Farwell v. Warner, 51 id. 467, the term "exemplary damages" is clearly used for no other purpose and intention than to express damages beyond the mere pecuniary loss actually sustained, while in the case of The Railroad v. Williams, 55 Ill. 185, the idea of exemplary damages is expressed as something "in addition to the actual damages for the indignity, vexation and disgrace to which the party has been subjected;" which is another illustration of the careless and indefinite use of language.

In Slater v. Sherman, 5 Bush (Ky.), 206, the jury having been instructed that "in estimating the damage they are rct confined to the actual outlay of money paid by the plaintiff for surgeons' and physician's bills, or loss of time, but may take into consideration the bodily pain and sufferings and personal disfiguration of the plaintiff as part of the injury for which the plaintiff is entitled to compensation in damages," it was held that these instructions were correct; but, unfortunately as well as unnecessarily, the court undertook to give reasons for this holding to this effect, that "a plaintiff may recover vindictive or punitive damages for personal

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injuries, where the commission of the act complained of is accompanied with circumstances of aggravation;” which abstract proposition is needless for application, and only serves to show that vindictive and exemplary damages were there regarded as embracing every thing beyond the bare outlay of expenses.

In an earlier case, within the same jurisdiction, SIMPSON, C. J., declares that the right of the plaintiff to recover vindictive damages for personal injuries, where the commission of the act complained of is accompanied with circumstances of aggravation, has been so often recognized by the court that it must be regarded as a settled rule of law in Kentucky.

* *

He then goes on to say: "This rule, when properly understood, is supported by principle, analogy and authority. The arguments used in opposition to the rule proceed on the erroneous assumption that vindictive damages are inflicted by way of criminal or penal punishment, and are not given by way of compensation for the injury complained of. Such damages may operate by way of punishment, but they are allowed by way of remuneration for the wrong suffered. Such damages, although given to recompense the sufferer, do inflict a punishment upon the offender. * The damages are allowed as compensation for the loss sustained, but the jury are permitted to give exemplary damages on account of the nature of the injury. It is therefore the increase of the damages resulting from the character of the defendant's conduct that is denominated punitive or vindictive." Chiles v. Drake, 2 Metc. (Ky.) 146.

*

This language of Mr. Chief Justice SIMPSON forcibly illustrates the suggestion already made, that it is of no sort of consequence what appellation you bestow upon a rule of damages which is, in fact, compensatory merely, if everybody understands the meaning of the terms employed. That Judge SIMPSON understood the matter very differently from the understanding of Mr. Sedgwick, who cites this case in support of his own views, seems to me quite apparent.

The case of Ellsworth v. Potter, 41 Vt. 688, furnishes an illustration of the application of the terms "exemplary," "vindictive" and "punitive" damages to such as belong in fact to compensa tion merely. Such is also the case of Bonsall v. McKay, 1 Houst (Del.) 520, though the doctrine of exemplary damages is fully invisted upon.

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In Bannon v. The Baltimore & Ohio Railroad, 24 Md. 123, A. D. 1865, the court in express terms declines to "adopt or deny the proposition so elaborately discussed by the learned jurists Sedgwick and Greenleaf."

Barnet v. Reed, 51 Penn. St. 190, is another instance of the confuso. which seems inseparable from the consideration of this mator by the courts. STRONG, J., held that the following instructions were unexceptionable: "Where the malice is only such as results from a groundless act, and there is no actual malice or design to injure, the rule is compensatory damages; but where actual malice exists, a formed design to injure and oppress, the jury may give vindictive damages; that is, damages to punish the defendant for his fraud and malice. Compensatory damages are such as indemnify the plaintiff, including actual loss or injury of property, loss of time and necessary expenses, counsel fees, and any other actual loss the plaintiff suffered."

Observe here the narrow and restrictive character of the actual damages for which, alone, compensation can be made.

Injury to the feelings, in the view of this court, is no actual damage; but for the infliction of the injury the defendant must be punished by paying to the plaintiff damages which he has not sustained.

This was in 1867, but the next year things became sadly mixed; for in Carey v. Bright, 58 Penn. St. 70, the following instructions to the jury were held to be correct: "The ordinary rule of damages, in trover, is the value of the property at the time of the conversion, with interest to the date of trial; although the jury are justifiable in going further where there has been an outrage in the taking, or vexation and oppression in the detention, as a compensation to the party injured.”

But in Penn. & Ohio Canal v. Graham, 63 Penn. St. 290, damages for pain and suffering resulting from tortious negligence are not spoken of as exemplary or vindictive, but are comprehended within "general damages."

In Fox v. Stevens, 13 Minn. 272, which was a case for seduction, the jury were instructed that, besides loss of services and the disbursements for medical treatment and other necessary expenses, they could give such additional damages for wounded feelings, men'al suffering, and for the dishonor of the plaintiff and his family,

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