dissenting. “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Revised Code, article 2315. Under this law the plaintiff sues for the damages which he alleges he sustained by reason of the assault and battery which the defendant inflicted on him. It is probable from the beating which he received that the plaintiff suffered some damages, but the quantum thereof is not proved by any positive evidence. I do not think he ought to recover judgment against the defendant, requiring him to repair a damage, the amount of which is not proved.
It is urged, however, that a wholesome regard for the principle® lying at the foundation of civil government requires us to impose vindictive damages in a case like this, where the defendant took the law into his own hands and sought to avenge what he considered his own wrongs.
To repress offenses of the kind at bar there are two remedies; one a. criminal prosecution to vindicate public justice, and the other a civil action for the reparation of the damages suffered by the party upon whom the injury or public wrong was inflicted.
Whether the defendant has suffered the penalties for breaking the law in a criminal prosecution, does not appear. In my opinion vindictive damages are only penalties for violating the law, and they ought not to be imposed in this case, because criminal punishment can not be inflicted in a civil action. This question was elaborately discussed in the case of Black v. Carrollton Railroad, 10 An. 37, and the dissenting opinion of Chief J ustice Slidell I regard as the true exposition of the law. I will not pursue the argument, however, because I believe the reasoning and authorities cited by Chief Justice Slidell are conclusive of the question.
*317But the main objection I have to the conclusion of my associates in this case is, they impose a penalty of $500 on the defendant after the case has been twice submitted to a jury, and each time their verdict has been in favor of tbe defendant. Twenty-four jurors of the vicinage have considered tbe question of damages submitted to them in this litigation, and they have unanimously agreed that the plaintiff has no cause of complaint. Besides, on examining the evidence, I ñnd no proof as to the amount of damages sustained by the plaintiff.
I maintain, therefore, that the finding of the jury is not manifestly erroneous, and that their verdict ought not to be disturbed.
“Tbe jury are the legitimate judges the quantum of damages, in assessing which the law leaves them.much discretion. Their verdict will be generally sustained, unless excessive or unsupported by the evidence, when the case will be remanded.” See authorities collated in Hennen’s Digest, page 1061, section 2.
If the defendant has damaged the plaintiff, he has the right to have the amount thereof assessed by a jury, and if their finding is not supported by the evidence the ease should be remanded. I have not lost all confidence in tbe juries of tbe country, and I believe if the plaintiff can not satisfy a jury that he has been injured, he should have no relief.
I therefore dissent in this ca§e.
Rehearing refused.