Linsley against Bushnell, 15 Conn. 225

Church, J. 1. Questions of minor importance have been discussed upon this motion, which it may be well to dispose of, before considering the leading principle of the case. First, it has been objected, that the testimony of Collins was improperly admitted. Collins testified, that, immediately after the plaintiff received the injury, the defendant said, “ I did not mean to remove the cart and wood, until some body got injured, and then make known who put them into the travelled road.” And afterwards, he said, “What would you do ? I am provoked every day.

I won’t touch the wood, if half Branford runs into it, and gets killed, &c.” This testimony was admissible, for several reasons.

It conduced to prove, that the defendant knew the situation of the cart and wood ; — that he recognised them as his own, and had not abandoned them, or resigned his claim to any trespasser; — • that he had a reasonable time to remove them, but purposely permitted them to remain ; — and also, it furnished strong evidence of the recklessness of the defendant; and if it did not prove any special malice towards this plaintiff, it might legitimately affect the question of damages in the case. Hall v. Connecticut River Steam-Boat Company, 13 Conn. Rep. 319. Sears v. Lyons, 2 Stark. Ca. 317. Treat v. Barker, 7 Conn.

Rep. 174. Churchill v. Watson, 5 Day, 140. Bracebridge v. Oxford, 2 Mau. & Sel. 77. Merest v. Harvey, 5 Taun. 442. Secondly, it was objected that the facts claimed by the plaintiff, do not sustain either count in his declaration. In the first count, it is aliened, that the defendant “ wrongfully and unjustly put and placed, and caused to be put and placed, divers, to wit, ten logs of wood, and a large ox cart, in the said highway ; and wrongfully and injuriously kept and continued, and negligently and wrongfully permitted the same to remain therein,” &c.

In the second count, it is alleged, that the defendant, “ wrongfully and injuriously, kept and continued, and then and there negligently, knowingly and wrongfully permitted to be there kept and continued, and wrongfully and injuriously left in and upon said usually trav-elled path &c., the said cart and logs,” &c. The allegations in both counts substantially charge, not only that the defendant placed the cart and logs upon the travelled road, but also, that he wrongfully and negligently permitted them to remain and be kept there.

We are strongly inclined to the opinion, that, in the absence of all proof that these incumbrances were placed upon the public highway, by any other person, the facts claimed by the plaintiff, would conduce, in some plausible degree, to prove, that they were placed there, by the defendant himself. At any rate, they prove conclusively the other charges, that the defendant wrongfully and negligently permitted them to remain and be kept there. Leslie v. Pounds, 4 Taun. 649. Thirdly, an objection is made to the charge of the judge in relation to the principle which might have influence in the assessment of damages.

And cases from Massachusetts and New-York, are relied upon in support of this objection. Whatever may have been formerly, or may be now, the practice of the courts of other states upon this subject, we are certain our own practice has been uniformly and immemorially such as the judge recognised in his charge in this case. Nolumus leges mutare. We have no disposition to discard our own usages in this respect. We believe them to be founded in the highest equity, and sanctioned by the clearest principles.

The judge informed the jury, that in estimating the damages, they had a right to take into consideration the necessary trouble and expenses of the plaintiff, in the prosecution of this action. In actions of this character, there is no rule of damages fixed by law, as in cases of contract, trover, &c. The object is the satisfaction and remuneration for a personal injury, which is not capable of an exact cash ; valuation.

The circumstances of aggravation or mitigation, — the bodily pain,— the mental anguish, — 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. But these are not all, that go to make up the amount of damage sustained. The bill of the surgeon, and other pecuniary charges to which the plaintiff has been necessarily subjected, by the misconduct of the defendant, are equally proper subjects of consideration'.

And shall a defendant, who has refused redress for an unprovoked and severe personal injury, and thus driven the plaintiff to seek redress in the courts of law, be permitted to say, that the trouble and expense of the remedy was unnecessary, and was not the necessary result of his own acts, connected with his refusal to do justice i , There is no principle better established, and no practice more universal, than that vindictive damages, or smart money,'may be, and is, awarded, by the verdicts of juries, in cases of wanton or malicious injuries, and whether the form of the action be trespass or case.

We refer to the authorities before cited, and also to Denison v. Hyde, 6 Conn. Rep. 578. Woert v. Jenkins, 14 Johns. Rep. 352. Merills v. Tariff Manufacturing Company, 10 Conn. Rep. 384. Edwards v. Beach, 3 Day, 447.

In this last case, Daggett, in argument for the defendant, admits, that where an important right is in question, in an action of trespass, “ the court have given damages to indemnify the party for the expense of establishing it.” The argument in opposition to the doctrine of the charge, is substantially founded upon the assumed principle, that the defendant cannot be subjected in a greater sum in damages than the plaintiff has actually sustained. But every case in which the recovery of vindictive damages has been justified, stands opposed to this argument.

And we cannot comprehend the force of the reasoning, which will admit the right of a plaintiff to recover, as vindictive damages, beyond the amount of injury confessedly incurred, and in case of

an act and injury equally wanton and wilfully committed or permitted, will deny to him a right to recover an actual indemnity for the expense to which the defendant’s misconduct has subjected him. In the cases to which we have been referred, in other states, as deciding a different principle, the courts seem to have assumed, that the taxable costs of the plaintiff are his only legitimate compensation for the expense incurred. If taxable costs are presumed to be equivalent to actual, necessary charges, as a matter of law; every client knows, as a matter of fact, they are not.

And legal fictions should never be permitted to work injustice. This court has repudiated this notion. It was formerly holder! in England, and perhaps is so considered now, that no action would lie for the injury sustained by the prosecution of a vexatious civil action, when there has been no arrest or imprisonment; because the costs recovered, compensated for that injury. But this court, in the case of Whipple v. Fuller, 11 Conn.

Rep. 582. hold a contrary doctrine, and say, “ we cannot, at this day, shut our eyes to the fact known by every body, that taxable costs afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit.” 2. But the question intended by the parties more particularly to be discussed and considered, arises from that part of the charge of the judge which relates to the liability of the defendant for the injury sustained by this plaintiff.

Conceding that this obstruction was not placed in the public highway, by the agency of the defendant; the question is, whether upon the facts appearing on this motion and found by the jury, the defendant is liable at all ?

It is perhaps material, that it does not appear how, nor by what agency, the cart and wood of the defendant were removed from the road-side, where he left them ; nor by what instrumentality they were placed upon the travelled part of the highway, where they occasioned the injury to the plaintiff; because much of the argument for the defence has proceeded upon the fact, as if it had been conceded, that some trespasser, without the defendant’s knowledge, had done the act.

Let this be conceded, and still we are not persuaded that it is material, because the question, after all, will recur, — what was the defendant’s legal duty, after he had knowledge of the situation of his property, and after he had reasonable opportunity to remove it % We do not think that any special property in the defend-’ani,g cari anc^ wood, became vested in any trespasser, in any such sense as to exonerate this defendant from his obligation sS0 tQ uge yg own property as that it should not injure another.

Indeed, we cannot comprehend the principle which has been - urged upon us in argument, that any right of property is acquired, by a mere act of wanton trespass, unaccompanied by a continued possession, and not followed by a judgment against the trespasser for its value. This property, for all legal purposes, was in the possession of the defendant; and he alone could maintain an action for it, founded upon a property right. Com. Big. tit. Biens. E. Rose. Ev. 398.

Nor would it make any difference in the result, although the trespasser, by whom the property was unlawfully placed upon the travelled road, could be discovered, and although the plaintiff could sustain an action against him. The defendant’s duties and obligations could not be varied, nor his responsibilities discharged, by this circumstance. An action will as well lie against him who continues a nuisance, as against him who erected it. And the cams are numerous, in which a plaintiff is permitted to make his election to proceed against one of several who may be liable.

Of course, it cannot be material to the plaintiff’s right of recovery, nor can it modify or change the defendant’s liability, whether these obstructions were placed upon the highway, by the force of the elements, or by human agency. The question will still recur, what was the defendant’s duty, after the situation of his property was made known to him ? Eic utere tuo ut alien am non Icedas. is a maxim expressive of an important and salutary principle, which we think applicable to this case, and to the legal obligations of this defendant.

Nor is it less applicable, if it be conceded, that the defendant has done nothing more than knowingly and willingly to permit his property so to remain as to endanger others./ He thus made and selected the public highway as its place of deposit, and is equally responsible, as if he had placed it there, by his own direct agency. It has been very properly admitted, by the defendant, in argument, that the owner of beasts, who knows their dangerous propensities, is liable for the injurious consequences of such propensities, unless he uses reasonable efforts to restrain them.

Thus, the owners of horses and cattle accustomed to wander, and of dogs accustomed to bite, are liable ; and we perceive no essential distinction between such cases and the — present. Here, the defendant as well knew, that his proper-1, ty, placed in the center of the public travelled road, wouldj endanger the safety of travellers, as the owner of a raven-f ous dog knows, that the animal let loose, will do the samel thing. (There is no good sense in the distinction, which hast been attempted to be made, between animate and inanimate’: property, in this respect.

Nor can it make an essential dif- j. ference, whether the injury be occasioned by the peculiar con- } dition or situation of real or personal estate.| If the owner j of a weak and tottering wall, permits it to overhang a public 1 street, without sufficient shores ; if the owner of a gate permits it to stand open across the side-walk, at night, even if thrown open by a trespasser; if the owner of land, upon which a nuisance has been erected, by a stranger, permits it to remain ; these are all cases, in which it is admitted, there would remain a legal responsibility upon such owners.

But it is said, it is by rgajgon of their possession of the premises. In the present case, as we have seen, the possession of this (■defendant was equally certain, and his eontroul over the property equally absolute, as in the cases stated. The burden of the defendant’s claim has been, that, as he did not place the property in the public highway, he was under no legal obligation to remove it. Let this position be tested, by a few more cases, in addition to those already stated.

A stranger, without the knowledge of the owner, unlooses a furious dog from his chain, or a tiger from his cage ;_ are no efforts necessary, on the part of the owner, to restrain them, after he is informed of their situation ? A wrong-doer unfastens the stage-horses in a public street; is the owner justified in permitting them to remain loose, and thereby endanger the lives of the passengers within, and the travellers without ?

This is not a case, where property has been taken wrongfully from the owner, and placed beyond his eontroul; nor a case where he can be considered as having abandoned it, and as having no longer any possession of it. This defendant at all times asserted his ownership of the property; and after the injury was sustained, removed it into his enclosure and reclaimed it to his use. It is therefifrf essentially unlike the cage 0f The King v. Watts, 2 Esp. Ca. 676. In that case, defendant’s vessel was a complete wreck, and not worth . . . raising.

It was considered as abandoned, by the defendant, an¿ therefore, he was under no obligation to remove it. If the foregoing principles be correct, it follows, that the notice given by the defendant to the select-men of Branford to remove the obstruction, was immaterial. No new trial is advised. In this opinion Williams, Ch. J. and Stokrs and Human, Js. concurred.