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ROGERS v. FLORENCE PRINTING CO.

December 10, 1958

FOSTER ROGERS, AN INFANT UNDER THE AGE OF FOURTEEN YEARS, BY HIS GUARDIAN AD LITEM, MALCOLM P. ROGERS, RESPONDENT,
v.
THE FLORENCE PRINTING COMPANY, APPELLANT.



The opinion of the court was delivered by: Legge, Justice.

December 10, 1958.

Plaintiff, a minor twelve years of age, brought this action against the publisher of a daily newspaper, seeking recovery of actual and punitive damages in the amount of one hundred thousand ($100,000.00) dollars by reason of its publication, on May 10, 1956, of a defamatory article concerning him. Upon a former appeal, 230 S.C. 304, 95 S.E.2d 616, wherein we held that the article was libelous per se, its substance was set out in the opinion of this court; it need not be repeated here. The case was tried in September, 1957, before the Honorable J.M. Brailsford, Jr., Presiding Judge, and a jury. Verdict was in favor of the plaintiff for five thousand ($5,000.00) dollars actual and twenty thousand ($20,000.00) dollars punitive damages. Thereafter, by consent of counsel, defendant's motion for a new trial was marked "heard" and was argued in April, 1958. From Judge Brailsford's order of May 17, 1958, overruling that motion, the defendant has appealed.

The numerous exceptions present but three issues, viz.:

1. Was the verdict so excessive as to indicate caprice, passion or prejudice on the part of the jury?

On the first of these issues, appellant's counsel direct their argument only against the award of punitive damages. They contend that its amount conclusively shows the taint of caprice, passion or prejudice because:

1. It is unreasonably disproportionate to the award of actual damages;

2. It exceeds the maximum fine for criminal libel under Section 16-161 of the 1952 Code; and

3. There was no evidence of appellant's wealth.

Counsel preface their argument on this issue with the plea that this court should, as a matter of public policy, reject the doctrine of punitive damages. They urge that, since to punish is the function not of the individual litigant, but of the state, and since the plaintiff in a tort action is entitled only to be compensated for his injury, the doctrine is, in fact, that of private vengeance and should be repudiated as illogical and unjust. The short answer to this plea is that it was not, so far as the record here shows, made before the lower court. But, waiving that, we shall discuss it briefly, for it brings into focus the function of this court with respect to the public policy of the state.

The question whether punitive damages should have any place in civil actions has been the subject of numerous legal treatises. Some fifty years ago one author (20 Harvard Law Review 420) said that it had been so often discussed that it was becoming somewhat threadbare. Another (70 Harvard Law Review 517) quotes the opinion of the New Hampshire court, Fay v. Parker, 1873, 53 N.H. 342, 382, wherein exemplary damages were denounced as `a monstrous heresy * * * an unhealthy excrescence, deforming the symmetry of the body of the law."

On the other hand, since fault is usually a necessary ingredient of the defendant's liability in tort, the function of all damages in such cases may be said to be admonitory as well as reparative. In this view, when the defendant's fault has been aggravated by his willfullness or malice, the admonitory function may not be adequately accomplished by the award ...


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