Bahrey v. Poniatishin

Upon the petition for rehearing filed by the appellant, the court rendered the following opinion:

The opinion of the court was delivered by PARKER, J.

In affirming the judgment below, the per curiam filed in the Supreme Court ¡was deemed adequate and was adopted as the basis of decision here. The appellant, defendant below, now asks for a rehearing upon the sole ground that in affirming the judgment this court necessarily gives its assent to a, rule of law directly contrary to that enunciated in the opinion of Mr. Justice Trenchard, delivered in the case of Weiss v. Weiss, ante p. 125, at the same term, in which case we held that evidence of the reputed wealth of the defendant is competent in a slander suit on the question of actual damages, and that evidence of his actual wealth is similarly competent on that oil punitive damages. The propriety of the rule laid down in the Weiss case is not now questioned, nor is the admission of the evidence on this phase of the case challenged on this petition. The precise point *132 urged is that the Supreme Court failed to reverse because of the charge of the trial court brought up by the fifteenth ground of appeal, to the effect that evidence of the reputation of the defendant for wealth might he considered by the jury in assessing punitive damages, and that this is in the face of the rule in Weiss v. Weiss.

It is true that the trial judge did charge to this effect; but it is also> true that he did not do this until after he had charged the correct rule and was induced b}r the appellant’s own exception to withdraw what he said and charge incorrectly. The original instruction was as follows:

“Where there is actual malice, you have'a right to consider what would he a punishment to him. What would be punishment to a person of small means might be no punishment at all to a person of large means, and that is the reason why evidence of the wealth of Father Poniatishin was permitted. If he is a man of large means, -which he denies— he says he is not, and he tells you of what his means consist, what his income consists of — you have a right to consider the testimony concerning that, if you come to the consideration of exemplary damages.”

This seems to be precisely in accord with the rule stated in Weiss v. Weiss and is all that the court said on that phase of the case. But the defendant excepted to this as follows:

.“Mr. Kearns — I desire to except to so much of your honor’s charge where your-honor said that the evidence of wealth of Fattier Poniatishin was permitted so as to assist the jury to assess damages. I conclude that what your honor permitted was evidence as to reputation of his wealth.

• “Exception is noted as ground of appeal.”

The court then recalled the jury and gave the instruction now complained of. We quote from the printed book:

“The .Corirt — I have recalled you, gentlemen, to correct a slight mistake in the charge. I saich that evidence of Father Poniatishin’s wealth had been permitted in order to aid you in assessing punitive damages, if you come to the assessment *133 of punitive damages. 1 should havei said evidence of the reputation of his wealth. Of course, nobody testified as to his exact wealth. There were one or two witnesses who testified to his income. But this, evidence of his. reputation and that he has that wealth which is imputed is denied.

“Mr. Kearns — that is what I wished to except to.

“Exception allowed.”

From the foregoing- it seems quite obvious that the court was misled by the defendant’s exception into committing the very error now complained of. The dominant idea in the original exception was that the court had charged on a subject of actual wealth as a basis for assessing punitive damages instead of reputed wealth. Elementary justice in reviewing the action of a trial court requires that that court should not be reversed for an error committed at the instance of a party alleging it. Turrell v. Elizabeth, 43 N. J. L. 272; Austrian v. Laubheim, 78 Id. 178, and affirmed, 80 Id. 459; Prout v. Prout, 82 Id. 537-538; Kosher Dairy Company v. N. Y., S. & W. R. R. Co., 86 Id. 161; Williams v. Lowe, 79 N. J. Eq. 173; 4 C. J. 700 et seq. The original charge being correct, the appellant is estopped to complain of an erroneous modification induced by his own exception. The application for rehearing will be denied.

For affirmance — Swayze, TreNOHAKD, PaRKEE, BebgeN, Kalisoh, KatzbNBAch-, White, HeepbNtieiMER, WilliaMH, Taylor, GaedNee, ACiíeesoN, JJ. 12. For reversal — None.