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Is there a notable tendency in courts, in the administration of the rule that compensatory damages must not be excessive, to allow larger compensatory damages against the defendant who has done a wrong either wilfully or recklessly than against one who has acted with mere negligence? Does the likelihood that a very large verdict will be set aside as excessive vary in inverse ratio to the degree of moral fault of the defendant? Is a court usually ready to sustain a verdict for very large compensatory damages against a wilful or reckless wrongdoer and somewhat less ready to sustain a similar verdict against a merely negligent wrongdoer? These questions we shall try to answer by a study of cases. It would, of course, be unreasonable to argue that compensatory damages, where they are absolutely certain in amount and completely incapable of any plausible stretching by the jury, could ever be lawfully stretched into greater compensatory damages by reason of even the greatest fault. For instance, if the defendant has destroyed the plaintiff's case of eggs, according to all the evidence worth exactly $9.02, no kind of legerdemain by the jury, winked at by a complacent trial judge, can enlarge the compensatory damages to an amount greater than $9.02 for the direct damage done by the destruction of plaintiff's property. Theoretically, perhaps this is always true as to compensatory damages. But, actually, even compensatory damages have often been at large, practically in the discretion of the jury except for a very slight control by the court, where the amount of actual damage is difficult to ascertain. Compensatory damages in personal injury cases usually include damages for a number of items that are completely impossible to evaluate at any certain figure. Physical pain and mental suffering are not capable of any definitely

The Degree of Defendant's Fault as Affecting the Administration of the Law of Excessive Compensatory Damages