Duberley against Gunning
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1792 |
| Date | 08 May 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 1226
IN THE COURT OF KING'S BENCH
1226 DUBERLEY V. GUNNING 4 T. R. 6M. duberley against gunning. Tuesday, May 8th, 1792. The Court will not grant a new trial in an action for criminal conversation, merely because the damages appear to them to be excessive. This action for criminal conversation was tried before Lord Kenyon, at the sittings for Westminster after last term ; when the defendant, in answer to the case proved on the part of the plaintiff, gave evidence of many indecent familiarities between him (the defendant) and the plaintiff's wife in the presence of her husband ; from whence the jury were pressed to draw the inference of connivance on his part. Lord Kenyon, in summing up the evidence, told the jury, that, if they were of opinion that the husband had consented to the infidelity of his wife, it took away altogether the ground of the action, and they should find a verdict for the defendant. [652] If they thought that, though he had not gone that length, yet he had been guilty of gross negligence or inattention to her conduct, with respect to the defendant, that would go far in mitigation of the damages; and to this opinion he himself most strongly inclined. But if they saw no ground for imputing even such negligence to the plaintiff, then they were to assess what damages, under all the circumstances, ha was entitled to. The jury found a verdict for the plaintiff, with 50001. damages. A rule was obtained to shew cause why the verdict should not be set aside, and a new trial had, on two grounds : 1st, as a verdict altogether against evidence ; 2dly, on the ground of excessive damages. It is unnecessary to enter into the detail and examination of the particular evidence given in the cause. On the first ground, Buller, J. alone was of opinion, that the verdict was wrong : the other three Judges thought that the jury had, at all events, done right in finding a verdict for the plaintiff. As to the second point, Erskine, Wood, and Shepherd shewed cause, contending, that in a case of this kind the question of damages was so exclusively within the province of the jury, depending upon a variety of considerations, many of them springing from the feelings of human nature, that the Court could not interfere to correct their opinion, without taking upon them the characters of jurors as well as Judges. In all other cases where the Courts have granted new trials on the ground of excessive damages, there are certain criteria by which the propriety of the damages given may be estimated; and though possibly no exact line can be drawn, yet it may easily be seen whether the damages given be greatly disproportionate to the injury received, and its actual or probable consequences. But in a case like the present, where the spirit is principally wounded, and the future happiness of the sufferer destroyed, there is no standard by which the Judges can ascertain the excess of the damages given; for admitting that the Judges, had they been substituted in the place of the jury, would have given less, it does not follow that they would have decided more properly than the jury have done; nor would it be capable of ascertainment by reference to any known rule whether they had or not. But in this case, the constitution has relied upon the judgment of the jury, and not of the Court; and therefore it may fairly be presumed, that it was thought the best tribunal to which such a question could be referred : arid the Judges themselves have heretofore conceded this point to [653] the exclusive examination of the jury ; for in Wilford v. Berkeley (a), upon a motion like the present, on the same ground of excess of damages, " The Court were clear and unanimous, that, although there was no doubt of the power of the Court to exercise a proper discretion in setting aside verdicts for excessive damages in cases where the quantum of the damage really suffered by the plaintiff could be apparent, or they were of such a nature that the Court could properly judge of the degree of the injury, and could see manifestly that the jury had been outrageous in giving such damages as greatly exceeded the injury; yet the case was very different where it depended upon circumstances which were properly and solely under the cognizance of...
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