Indiana Law Review Double Jeopardy And The Rule Against Punitive Damages Of Taber v. Hutsov} I. Introduction In considering the propriety of an award of punitive damages in a civil action, the vast majority of courts have held that it is im- material that the defendant is also subject to criminal prosecution for the same act.^ Indiana, however, is a member of the small minor- ity of states which, at an early date, assumed a position contrary to the majority rule and held that when a defendant is sued for a tort which is also the subject of criminal prosecution, the rule that gives damages not only to recompense the plaintiff, but to punish the of- fender is not applicable.^ Despite recent vehement assaults,^ the Indiana courts have reluctantly continued to adhere to the archaic and frequently inequitable minority position. This Note will initially address the scope of the Taber rule and analyze both the theoretical and the practical problems encountered in its application. The discussion will then turn to an examination of the rationale offered in support of the Taber rule and to an alternative method of alleviating the problems to which the rule is directed. However, before engaging in any detailed analysis of the Taber rule, a brief description of the purpose and scope of punitive damages in general is appropriate. II. Punitive Damages Generally The terms "exemplary," "punitive," and "vindictive" damages have all been applied interchangeably to a class of money damages awarded in addition to those actually necessary to compensate the plaintiff for his injuries.^ It was well established in early English law '5 Ind. 322 (1854). ^E.g., Wilson v. Middleton, 2 Cal. 54 (1852); Garland v. Wholeham, 26 Iowa 185 (1868); Chiles v. Drake, 59 Ky. (2 Met.) 146 (1859); Elliott v. Van Buren, 33 Mich. 49 (1875); Saunders v. Gilbert, 156 N.C. 463, 72 S.E. 610 (1911); Wirsing v. Smith, 222 Pa. 8, 70 A. 906 (1908); Brown v. Swineford, 44 Wis. 282 (1878). 'E.g., Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1885); Cherry v. McCall, 23 Ga. 193 (1857); Meyer v. Bohlfing, 44 Ind. 238 (1873); Humphries v. Johnson, 20 Ind. 190 (1863); Nossaman v. Rickert, 18 Ind. 350 (1862); Taber v. Hutson, 5 Ind. 322 (1854); Fay v. Parker, 53 N.H. 342 (1872). 'E.g., McCarty v. Sparks, 388 N.E.2d 296 (Ind. Ct. App. 1979); Glissman v. Rutt, 372 N.E.2d 1188 (Ind. Ct. App. 1978). ^Such damages are also referred to as "smart money" in the earlier cases. "Punitive" and "exemplary" are the terms most often used today. 999 1000 INDIANA LAW REVIEW [Vol. 13:999 that the measure of damages in civil actions was completely within the discretion of the jury.* The courts were accordingly reluctant to interfere with jury determinations of damages.^ This judicial reluc- tance resulted primarily from the realization that the early English juries were composed of the local citizenry which generally pos- sessed a unique understanding of the dispute and, therefore, oc- cupied the most advantageous position from which to assess the pro- per measure of damages.® Gradually, however, standards were developed with which to measure compensatory damages, and by the end of the eighteenth century, only pecuniary losses were awarded in personal injury cases.^ Despite the development of these standards, the courts remained reluctant to reduce an excessive damage award in a certain class of cases. In Huckle v. Money,^^ the court justified this judicial reluctance through the establishment of the doctrine of punitive damages. ^^ In passing upon the ex- cessiveness of the jury award, the court, through the pen of Lord Camden, stated: [T]he personal injury done to him [plaintiff] was very small, so that if the jury had been confined by their oath to con- sider the mere personal injury only, perhaps 20 £ damages would have been thought damages sufficient; but the small injury done to the plaintiff . . . did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial .... I think they have done right in giving exemplary damages. To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisi- tion; a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the lib- erty of the subject. ^^ Under current Indiana law, exemplary damages are awarded only when the defendant's behavior results from malice, gross fraud, ^See, e.g., 1 T. Sedgwick. A Treatise on the Measure of Damages § 349 (9th ed. 1912). For a general discussion of punitive damages, see id. §§ 347-88; C. McCormick. Handbook on the Law of Damages §§ 77-85 (1935); 2 J. Sutherland, A Treatise on THE Law of Damages §§ 390-412 (4th ed. 1916). 'See Gilbert v. Berkinshaw, 98 Eng. Rep. 911 (K.B. 1774); Russel v. Palmer, 95 Eng. Rep. 837 (K.B. 1767); Townsend v. Hughes, 86 Eng. Rep. 994 (K.B. 1726). *C. McCormick. supra note 6, § 6, at 25; 1 T. Sedgwick, supra note 6, § 349, at 688. 'See Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 518-19 (1957) [hereinafter cited as Note]. ''*95 Eng. Rep. 768 (K.B. 1763) (tort action based upon the use of an invalid war- rant issued by the Secretary of State). "M at 768-69. '7d. 1980] TABER v. HUTSON 1001 or oppressive conduct.'^ Thus, when the conduct complained of is the result of simple negligence, an award of punitive damages is inap- propriate.'^ Unlike compensatory damages, exemplary damages are generally held not to be recoverable as of right'^ but rest with the discretion of the jury.'^ The court may review an award of punitive damages'" but in Indiana will not reverse an award unless at first blush the punitive damages appear outrageous/® Two principal theories have been advanced as justification for an award of punitive damages. The majority of jurisdictions hold that exemplary damages are awarded to punish and to deter the defendant and others from committing similar offenses in the future.'^ Under this rationale, punitive damages are not compen- satory but are awarded in the interest of society and relate only in- ''E.g., Jeffersonville Silgas, Inc. v. Wilson, 154 Ind. App. 398, 290 N.E.2d 113 (1972); Murphy Auto Sales, Inc. v. Coomer, 123 Ind. App. 709, 112 N.E.2d 589 (1953). '*E.g., Hibschman Pontiac, Inc. v. Batchelor. 266 Ind. 310, 362 N.E.2d 845 (1977) Prudential Ins. Co. v. Executive Estates, Inc., 369 N.E.2d 1117 (Ind. Ct. App. 1977) LoRocco V. New Jersey Mfrs. Indem. Ins. Co., 82 N.J. Super. 323, 197 A.2d 591 (1964) Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). ''See Smith v. Hill, 12 111. 2d 588, 147 N.E.2d 321 (1958); City of Gary v. Falcone, 348 N.E.2d 41 (Ind. Ct. App. 1976); Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, 70 S.W. 878 (1902); Fink v. Thomas, 66 W. Va. 487, 66 S.E. 650 (1909). ''E.g., Clark v. McClurg, 215 Cal. 279, 9 P.2d 505 (1932); Bangert v. Hubbard, 127 Ind. App. 579, 126 N.E.2d 778 (1955); Gill v. Selling, 125 Or. 587, 267 P. 812 (1928) ("It is for the jury, in the exercise of its discretion, to assess [punitive] damages after the court, as a preliminary matter of law, has held that it is a proper matter for its con- sideration." Id. at 591, 267 P. at 814). But see Sample v. Gulf Ref. Co., 183 S.C. 399, 191 S.E. 209 (1937) ("[U]nder the settled rule prevailing in this state punitive damages are awarded not only as punishment for a wrong, but also as vindication of private right, and when under proper allegations a plaintiff proves a willful, wanton, reckless, or malicious violation of his rights, it is not only the right but the duty of the jury to award punitive damages." Id. at 410, 191 S.E. at 214). ''See, e.g., Stoner v. Wilson, 140 Kan. 383, 36 P.2d 999 (1934); Stene v. Hillgren, 78 S.D. 1, 98 N.W.2d 156 (1959); Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255 (1925). "E.g., Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 317-18, 362 N.E.2d 845, 849 (1977) (citing City of Indianapolis v. Stokes, 182 Ind. 31, 105 N.E. 477 (1914)) ("Damages are not considered excessive unless at first blush they appear to be outrageous and excessive, or it is apparent that some improper element was taken into account by the jury in determining the amount." 182 Ind. at 35, 105 N.E. at 479). Some jurisdictions employ what is known as the ratio test. In these jurisdictions, an award of punitive damages must bear some relation to actual damages. This test has been criticized as "plac[ing] an arbitrary limit on the amount of punitive damages which juries may give . . . ." Morris, Punitive Damages in Tort Cases, 44 Harv. L. Rev. 1173, 1180 (1931) [hereinafter cited as Morris]. ''See, e.g., Washington Gas Light Co. v. Lansden, 172 U.S. 534 (1899); Thomson v. Catalina, 205 Cal. 402, 271 P. 198 (1928); Eshelman v. Rawalt, 298 111. 192, 131 N.E. 75 (1921); York Corp. v. E. Perry Iron & Metal Co., 157 Me. 68, 170 A.2d 388 (1961); West Bros. V. Barefield, 239 Miss. 530, 124 So. 2d 474 (1960); Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 197 A.2d 721 (1964); Wright v. Everett, 197 Va. 608, 90 S.E.2d 855 (1956); Cosgriff Bros. v. Miller, 10 Wyo. 190, 68 P. 206 (1902). 1002 INDIANA LAW REVIEW [Vol. 13:999 cidentally to plaintiff's compensation.^" Indiana clearly subscribes to this theory of punitive damages.^^ In a minority of jurisdictions, exemplary damages are awarded, not to punish the defendant, but to compensate the plaintiff for the injury suffered.^^ Under this rationale, the defendant's aggressive conduct is said to increase the plaintiff's actual damage.^^ Several cases have found the distinction between the two principal theories to be of little practical importance.^* It is reasoned that a large award of exemplary damages will serve both to deter the defendant and to compensate the plaintiff receiving the award.^^ The doctrine of exemplary damages is not favored in the law^^ and has, indeed, been opposed in a few jurisdictions.^^ The majority of jurisdictions, however, have adopted the doctrine as part of the common law.^^ III. THE Taber Rule A. Generally The commission of many torts will subject the defendant to both criminal as well as civil liability .^^ The defendant, therefore, may suf- ^'See, e.g., French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Florida E. Coast Ry. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933) ("[E]xemplary damages are, as it has been said, allowed by the law, not as a matter of compensation to the injured party, but because of the quality of the wrong done by the tort-feasor . . . ." Ill Fla. at 283, 149 So. at 632 (emphasis added)). ''E.g., Vaughn v. Peabody Coal Co., 375 N.E.2d 1159 (Ind. Ct. App. 1978); Glissman v. Rutt, 372 N.E.2d 1188 (Ind. Ct. App. 1978); Jos. Schlitz Brewing Co. v. Central Beverage Co., 359 N.E.2d 566 (Ind. Ct. App. 1977); Jerry Alderman Ford Sales, Inc. v. Bailey, 154 Ind. App. 632, 291 N.E.2d 92 (1972). ^Doroszka v. Lavine, 111 Conn. 575, 150 A. 692 (1930); Wise v. Daniel, 221 Mich. 229, 190 N.W. 746 (1922); Fay v. Parker, 53 N.H. 342 (1873). ''See Lucas v. Michigan Cent. R.R., 98 Mich. 1, 56 N.W. 1039 (1893); Tenhopen v. Walker, 96 Mich. 236, 55 N.W. 657 (1893). '*See, e.g., Devine v. Rand, 38 Vt. 621 (1866) (stating that it could be of little prac- tical difference to plaintiff or defendant whether damages are allowed according to the maliciousness of the act, whether they are allowed on the ground that the willfullness of the act increased or aggravated the plaintiffs injury, or whether they are allowed as puHishment to the defendant. Id. at 626). ^^An award of punitive damages will always serve to offset the cost of litigation and similar expenses. ''See Harris Mfg. Co. v. Williams, 164 F. Supp. 626 (D. Ark. 1958); White v. Doney, 82 Idaho 217, 351 P.2d 380 (1960) ("However, having in mind that such damages are not favored . . . the allowance of punitive damages should be exercised with cau- tion and within the narrowest limits . . . ." Id. at 224, 351 P.2d at 384). "Vincent v. Morgan's La. & Tex. T.R. & S.S., 140 La. 1027, 74 So. 541 (1917); Burt V. Advertiser Newspaper Co., 154 Mass. 238, 28 N.E. 1 (1891); Boyer v. Barr, 8 Neb. 68 (1878); Spokane Truck and Dray Co. v. Hoefer, 2 Wash. 45, 25 P. 1072 (1891). ''See 1 T. Sedgwick, supra note 6, § 351, at 693. '^E.g., Shelley v. Clark, 267 Ala. 621, 103 So. 2d 743 (1958); McCarty v. Sparks, 388 N.E.2d 296 (Ind. Ct. App. 1979) (assault and battery); Miller v. Blanton, 213 Ark. 246, 1980] TABER v. HUTSON 1003 fer both civil and criminal penalties for a single course of conduct in apparent contravention of the principles of double jeopardy.^° Accor- ding to the majority of jurisdictions, however, the provision against double jeopardy will not bar the imposition of a civil penalty when the defendant is also subject to criminal prosecution.^' The majority position, which was the position taken by the common law,^^ is founded primarily on the theory that exemplary damages are not awarded in lieu of criminal punishment and, in fact, have no relation whatever to the penalty imposed for the offense perpetrated upon the public.^^ In recognizing the civil and criminal offenses as separate and distinct, it follows that no violation of double jeopardy results from the application of both civil and criminal punishment. ^^ As further justification for the imposition of both criminal and civil penalties, the majority of jurisdictions recognize a basic dif- ference between the two types of punishments. Although several purposes which are served by criminal punishment are also served by an award of punitive damages,^^ the effects of these two sanc- tions are inherently different.^^ Prosecution under a criminal statute may result in a loss of life or liberty. In addition, the stigma which attaches to criminal prosecution may be "felt by the defendant long after any sentence has been served."^^ Punitive damages, on the other hand, only affect the defendant's pocketbook and are attended by stigmatization only in that such damages express societal outrage for the defendant's conduct.^^ In this regard, it has been 210 S.W.2d 293 (1948); Glissman v. Rutt, 372 N.E.2d 1188 (Ind. Ct. App. 1978) (injuries caused by reckless driving), ^"In considering the application of the principles of double jeopardy in the context of the Taber rule, concern is had only with article I, § 14 of the Indiana Constitu- tion since the fifth amendment of the United States Constitution and similar provisions of many state constitutions have been construed as limiting double jeopardy solely to successive criminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938) ("Civil pro- cedure is incompatible with the accepted rules and constitutional guaranties [sic] governing the trial of criminal prosecutions, and where civil procedure is prescribed for the enforcement of remedial sanctions, those rules and guaranties [sic] do not apply." 303 U.S. at 402). ^^See cases cited in note 2 suprcu '^See, e.g., Day v. Woodworth, 54 U.S. 389 (13 How. 363) (1851). ''See, e.g., Allen v. Rossi, 128 Me. 201, 146 A. 692 (1929); State v. Shevlin- Carpenter Co., 99 Minn. 158, 108 N.W. 935 (1906). '*See, e.g., Reutkemeier v. Nolte, 179 Iowa 342, 161 N.W. 290 (1917). '^See Note, Criminal Safeguards and the Punitive Damages Defendant, 34 U. Chi. L. Rev. 408, 410 (1967)[hereinafter cited as Note, Criminal Safeguards]; Note, Ex- emplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 522 (1957). '^See Note, Criminal Safeguards, supra note 35, at 410. 'Ud. ''Id. at 411. 1004 INDIANA LAW REVIEW [Vol. 13:999 aptly noted that, "[t]here is no blank on a job application for listing past punitive damages judgments."^^ Indiana is a member of the small minority of jurisdictions which disallows a recovery of punitive damages when the defendant is also subject to criminal sanctions for the same act.''° Indiana adopted this position in the widely noted case of Taber v. Hutson,'^^ in which Judge Davison stated: [T]here is a class of offences, the commission of which, in ad- dition to the civil remedy allowed the injured party, subjects the offender to a state prosecution. To this class the case under consideration belongs; and if the principle of the in- struction be correct, Taber may be twice punished for the same assault and battery. This would not accord with the spirit of our institutions. The constitution declares, that "no person shall be twice put in jeopardy for the same offence;" and though that provision may not relate to the remedies secured by civil proceedings, still it serves to illustrate a fundamental principle inculcated by every well-regulated system of government, viz., that each violation of the law should be certainly followed by one appropriate punishment and no more."^ B. Recent Plaintiffs' Criticism of the Taber Rule The Taber rule has recently been severely criticized not only by civil plaintiffs but by the Indiana courts as well. This criticism appears to stem primarily from the rule's failure to acknowledge the practical realities of the modern criminal justice system and the in- equitable results that the rule is capable of producing when applied in certain classes of litigation. Concerning the practical realities of the criminal justice system, it has been noted that the Taber rule may allow a defendant to com- pletely escape all punishment for his reprehensible conduct.'*^ "The legitimacy and necessity of the prosecutor's discretion in pressing ''Id. *°See cases cited in note 3 supra. "5 Ind. 322 (1854). *^Id. at 325-26. One noted author, in discussing the Taber holding, stated that "[o]nly the gremlins are aware of the psychologic phenomena that tempted Judge Davison to turn a deaf ear to the common law and the mountain of majority authority to adopt for Indiana a view that had previously been almost solely confined to text- writer confabulation." Aldridge, The Indiana Doctrine of Exemplary Damages and Double Jeopardy, 20 Ind. L.J. 123, 123-24 (1945). "Brief of Appellant, McCarty v. Sparks, 388 N.E.2d 296 (Ind. Ct. App. 1979). [hereinafter cited as Brief of Appellant]. 1980] TABER v. HUTSON 1005 charges have long been recognized. . . . Often it becomes apparent after [an arrest] that there is insufficient evidence to support a con- viction or that a necessary witness will not cooperate or is unavailable . . . .""^ These factors, in addition to the limited resources available to the prosecutor, may completely bar the possibility that a criminal indictment will ever be brought against the defendant. Under the Taber rule, however, the civil plaintiff is barred from even seeking punitive damages against the defendant, despite his ability to meet the lower burden of proof required in a civil proceeding"^ and despite the fact that criminal charges may never be lodged against the defendant."*^ In these circumstances it is argued that the application of the Taber rule is manifestly unfair to the civil plaintiff and is irrational since the defendant does not suffer even former jeopardy, much less double jeopardy.'*' The Taber rule has also been criticized as too frequently produc- ing inequitable results when applied in certain classes of litigation. In this respect, it has been strenuously contended"® that the rule creates disturbing distinctions between plaintiffs who are made the victims of intentional or malicious behavior. The tort of defamation is not a subject of criminal jurisdiction in Indiana."^ Therefore, a plaintiff who is intentionally defamed may recover punitive damages from the wrongdoer.^° However, other intentionally injured plain- tiffs, whose injuries have been made the subject of criminal jurisdic- tion, are barred from even seeking punitive damages under the Taber rule. Plaintiffs who have been the victims of aggravated bat- tery fit into this latter category. ^^ In these circumstances, it seems ^^Task Force Report: The Courts, The President's Commission on Law Enforce MENT and Administration of Justice. Task Force on Administration of Justice, Washington, D.C., GPO 1967 (Su. Doc. Pr. 36.8: L41/c83), quoted in Brief of Appellant. supra note 43, at 33-34. *'F. James & G. Hazard, Civil Procedure § 7.6, at 243 (2d ed. 1977). The stand- ard of proof required in a civil proceeding is the preponderance of the evidence stand- ard. ^''Since the Taber decision, concern has been had only with the possibility that the defendant may incur criminal liability. The possibility itself is sufficient to invoke the Taber rule. See Cohen v. Peoples, 140 Ind. App. 353, 220 N.E.2d 665 (1966). ^^Brief of Appellant, supra note 43, at 31-32. ''Id. at 40. "Ind. Code § 35-13-6-1 (1976) was repealed by Act of February 25, 1976, Pub. L. No. 148 § 24, 1976 Ind. Acts 718. '°See, e.g., Weenig v. Wood, 349 N.E.2d 235 (Ind. Ct. App. 1976). ''See, Ind. Code § 35-42-2-1 (Supp. 1979) states: A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (Da Class A misdemeanor if it results in bodily injury to any other person, or if it is committed against a law enforcement officer or 1006 INDIANA LAW REVIEW [Vol. 13:999 manifestly unfair to forbid a plaintiff from even seeking an award of punitive damages merely because he has suffered the misfortune of having been severely beaten or shot rather than defamed.^^ Finally, in Indiana, a minor is held to be incapable of committing a crime until he has attained the age of fourteen.^^ For purposes of tort law, however, minors are held responsible for their conduct and are thus subject to liability.^* It follows that a civil plaintiff who is intentionally or maliciously injured by a minor under fourteen years of age would be allowed to seek and recover punitive damages, although, by operation of the Taber rule, he would be denied recovery of punitive damages if the act were committed by a defen- dant old enough to suffer criminal liability .^^ Similarly, a person suf- fering from insanity in Indiana is generally held to be incapable of forming the requisite intent or mens rea for the commission of a crime.^^ However, insanity will not shield the defendant from liabil- ity for punitive damages in a civil suit.^^ Accordingly, under the Taber rule, a plaintiff who has been intentionally injured would be free to seek and recover an award of punitive damages from an insane defendant while such recovery would be completely barred against a defendant possessing a sound mind.^^ C. The Disfavor of the Indiana Courts In light of the difficulties and inequities attending the Taber rule, it is not surprising to discover the Indiana courts expressing against a person summoned and directed by the officer while the officer is engaged in the execution of his official duty; (2) a Class D felony if it results in bodily injury to such an officer or person summoned and directed, or if it results in bodily injury to a person less than thirteen (13) years of age and is committed by a person at least eighteen (18) years of age; and (3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon. For purposes of this section a law enforcement officer includes an alcoholic beverage enforcement officer. "Brief of Appellant, supra note 43, at 41. ''See, e.g., Bottorff v. South Constr. Co., 184 Ind. 221, 227, 110 N.E. 977, 978 (1916). "'E.g., Daughterty v. Reveal, 54 Ind. App. 71, 78, 102 N.E. 381, 384 (1913). ''Brief of Appellant, supra note 43, at 40-41. ""See, e.g., Ind. Code § 35-5-2-1 (Supp. 1979). § 35-41-3-6 (Supp. 1979) provides: Sec. 6. (a) A person is not responsible for having engaged in prohibited con- duct if, as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of the conduct or to conform his con- duct to the requirements of law. (b) "Mental disease or defect" does not include an abnormality manifested only by repeated unlawful or antisocial conduct. "See, e.g.. Woods v. Brown, 93 Ind. 164, 166-67 (1883). '^See, Brief for Appellant, supra note 43 at 41. 1980] TABER v. HUTSON 1007 distaste for the rule, in addition to that ventilated by civil plaintiffs. On several occasions,^^ as an expression of this distaste, the Indiana courts have instructed the jury, in cases in which the Taber rule ap- plied, that it need not confine its determination of plaintiffs injuries to his actual out-of-pocket loss, but may consider, in addition, every circumstance of the act which injuriously affected the plaintiff.^" Items which may be properly considered under this type of instruc- tion are injury to reputation, humiliation, loss of honor and mental suffering.^^ The courts, in giving such an instruction, are not technically departing from the Taber rule, since the award for these items is intended to compensate the plaintiff rather than to punish the defendant. However, as one author has stated, "[T]he distinction between vindicative damages and 'compensatory' damages of such a metaphysical nature, is largely a matter of spelling as the award may be as large in the latter case as if exemplary damages themselves had been allowed."^^ Perhaps the most bizarre expression of judicial distaste for the Taber rule came from the Indiana Supreme Court in Ziegler v. Powell.^^ Ziegler was sued for malicious prosecution following a suit in which he had falsely charged Powell with the theft of personal property. Ziegler contested the trial court's authorization of punitive damages, asserting that he was subject to criminal liability for malicious prosecution under an Indiana statute which stated, "If any person shall maliciously, without probable cause, attempt to cause an indictment to be found . . . against any person . . ., such person ... so offending shall be fined not exceeding one thousand dollars, to which may be added imprisonment not exceeding six months."^" To avoid the application of the Taber rule, the Ziegler court stated that the statute did not apply to the defendant since, by its terms, the act applied only to an attempt to cause an indict- ment and not to a consummated prosecution.^^ The total illogic of the conclusion evidenced the court's distaste for the Taber rule. As one commentator noted, "To say that the defendant was subject to a criminal prosecution at one stage of his action but successfully freed himself from it by continuing to pursue his prosecution to a decision seems not only contrary to legal principles but a bit absurd. "^^ '^See, e.g.. Wolf v. Trinkle, 103 Ind. 355, 3 N.E. 110 (1885); Nossaman v. Rickert, 18 Ind. 350 (1862). ''See Millisson v. Hoch, 17 Ind. 227 (1861). ''See Stewart v. Maddox, 63 Ind. 51 (1878). '^Aldridge, supra note 42, at 125. '^54 Ind. 173 (1876), noted in Aldridge, supra note 42, at 126. '"Act of Mar. 5, 1859, ch. 80, § 18, 1859 Ind. Acts 130. '^54 Ind. at 178. ''Aldridge, supra note 42, at 126-27. 1008 INDIANA LAW REVIEW [Vol. 13:999 IV. Situations Falling Outside the Taber Rule The Taber rule operates to bar the recovery of punitive damages in a civil action when the defendant is also subject to criminal prosecution for the same act. There are, however, three in- stances in which the Taber rule has been held not to apply. Briefly stated, these are actions in which (1) the defendant is a corporation,^^ (2) the statute of limitation has expired on the criminal offense,^® and (3) the defendant has acted in heedless disregard of the conse- quences.^^ Originally, a plaintiff, when litigating in any of these three factual climates, was to some extent protected from the harshness encountered under the Taber rule. However, the following discus- sion will expose the various recent developments which have rendered this protection illusory and of little practical benefit. A. The Corporate Defendant In Indiana, a corporation may remain liable for punitive damages notwithstanding the Taber rule since a corporation cannot be pro- secuted for the criminal acts of its agent,^° except when expressly provided by statute.^' Under this rule, the corporation may be called upon to respond vicariously with punitive damages for the criminal acts of its agent, while the agent, the wrongdoer, may protect himself from punitive damages by asserting that he is also subject to criminal prosecution for the same act.^^ Although this anomaly may be justified under the theory that a corporation should use care in selecting its agents, ^^ "[t]he practical result is that the innocent corporation is chastised and the culpable agent is protected. "^'' However, before taking much pleasure in this result, the plaintiff's attorney, seeking an award of punitive damages, may wish to scan a recently enacted Indiana Code provision^^ which purports to impose "'See, e.g., Indianapolis Bleaching Co. v. McMillan, 64 Ind. App. 268, 113 N.E. 1019 (1916). ''See, e.g., Cohen v. Peoples, 140 Ind. App. 353, 220 N.E.2d 665 (1966). '^See Nicholson's Mobile Home Sales, Inc. v. Schramm, 164 Ind. App. 598, 330 N.E.2d 785 (1975). '°Indianapolis Bleaching Co. v. McMillan, 64 Ind. App. 268, 113 N.E. 1019 (1916). 'State V. Sullivan County Ag. Soc'y, 14 Ind. App. 369, 42 N.E. 963 (1896) (Cor- poration prosecuted under statute prohibiting a corporation from keeping a tenement for gambling which amounted to a nuisance. The complaint was dismissed, however, because the gambling in question did not amount to a nuisance.). '^Aldridge, supra note 42, at 126. ''E.g., Goddard v. Grand Trunk Ry., 57 Me. 202 (1869). '"Aldridge, supra note 42, at 126. ''Ind. Code § 35-41-2-3 (Supp. 1979) states: (a) A corporation, partnership, or unincorporated association may be pro- secuted for any offense; it may be convicted of an offense only if it is proved 1980] TABER v. HUTSON 1009 general criminal liability upon the corporation for acts committed by its agents while acting within the scope of their authority. This pro- vision appears to bring a corporate defendant within the scope of the Taber rule and, consequently, to bar the civil plaintiff from recovering an award of punitive damages when the act complained of is also the subject of criminal jurisdiction. B. The Criminal Statute of Limitation The court of appeals in Cohen v. Peoples^^ recognized the second factual setting in which the Taber rule does not apply. Cohen in- volved a defendant who was sued civilly for an assault and battery, which was also the subject of criminal prosecution." The court of appeals, discussing the Taber rule in dictum, stated: ;. If, as the cases indicate, the rationale supporting disallowal of punitive damages in actions involving assault and battery is a fear of violating constitutional safeguards against double jeopardy, that fear is without basis in the instant case. The statute limiting to two years the time in which criminal prosecution for the misdemeanor of assault and battery may be brought appears in Burns' § 9-304.'78 Because the statute of limitation had expired on the criminal offense prior to the commencement of the civil action, the court of appeals held that an award of punitive damages could properly be assessed. ^^ that the offense was committed by its agent acting within the scope of his authority. (b) Recovery of a fine, costs, or forfeiture from a corporation, partnership, or unincorporated association is limited to the property of the corporation, part- nership, or unincorporated association. 'mo Ind. App. 353, 220 N.E.2d 665 (1966). "See Ind. Code § 35-42-2-1 (Supp. 1979), quoted in note 51 supra, 'mo Ind. App. at 357, 220 N.E.2d at 668 (citing Ind. Code Ann. § 9-304 (Burns 1956), repealed by Act of Feb. 5, 1976, Pub. L. No. 148, § 24, 1976 Ind. Acts 815). The current codification, Ind. Code § 35-1-3-4 (1976), states: Sec. 4. In all other cases, prosecutions for a misdemeanor must be com- menced within two (2) years, and prosecutions for a felony must be com- menced within five (5) years after its commission. But prosecutions for the forgery of an instrument for the payment of money, or for the uttering of such forged instrument, may be brought within five (5) years after the maturity thereof. '^40 Ind. App. at 357-58, 220 N.E.2d at 668-69. A variation to this exception may be noted in Smith v. Mills, 385 N.E.2d 1205 (Ind. Ct. App. 1979). In Smith, the defend- ant had entered into a specifically enforceable agreement with the prosecuting attor- ney that prevented the State from refiling criminal charges under a plea bargain agreement. The court held that under these circumstances an award of punitive damages could properly be recovered. 385 N.E.2d at 1207-08. 1010 INDIANA LAW REVIEW [Vol. 13:999 Although the statute of limitation may provide the civil plaintiff with some relief from the inequities of the Taber rule, this relief may prove to be of little practical benefit in some cases. The statute of limitation for torts in Indiana is two years.^° In contrast, the criminal statute may be as long as five years.^^ It is, therefore, obvious that, by operation of the Taber rule, a civil plaintiff may be forced to pursue an action for compensatory damages and to forgo any claim of punitive damages merely because the prosecutor fails to diligently pursue the defendant criminally .^^ The interaction between the Taber rule and the various statutes of limitation produces similar difficulties when observed from society's perspective. If one accepts, for the moment, that punish- ment is the proper theory justifying an award of punitive damages, it follows that the more heinous the crime, the more the defendant deserves to suffer an award of punitive damages. However, since the more egregious crimes are generally associated with longer statutes of limitation,^^ the probability that the Taber rule will inter- vene to protect the defendant from receiving an appropriate punish- ment significantly increases.^'' C. Conduct in Heedless Disregard of the Consequences The final factual setting in which the Taber rule has been held to have no application was established in Nicholson's Mobile Home Sales, Inc. v. Schramm. ^^ In addition to acknowledging the two "ex- nND. Code § 34-1-2-2 (1976) provides: The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards. First. For injuries to person or character, for injuries to personal pro- perty, and for a forfeiture of penalty given by statute, within two (2) years: Provided, That actions on account of injuries to personal property which occurred prior to the effective date of this amendatory act shall be commenced within two (2) years from the effective date of this amendatory act ... . ^'See IND. Code § 35-1-3-4 (1976), quoted in note 78 supra. *^Brief of Appellant, supra note 43, at 32. Of course, if the prosecutor pursues the defendant within the two-year civil statute of limitation but fails to secure a convic- tion, the plaintiff will not be barred from seeking punitive damages in a subsequent civil suit. Once acquitted, the prosecutor is barred from bringing a second criminal suit against the defendant by the principles of double jeopardy. Thus, the Taber rule will not apply in the subsequent civil suit. ''See Ind. Code § 35-1-3-4 (1976), quoted in note 78 supra. "See Brief of Appellant, supra note 43, at 33. Conversely, although less deserving of punishment, the defendant whose acts constitute only a minor criminal infraction is afforded virtually no protection by the Taber rule. These crimes are generally attend- ed by very short statutes of limitation which expire well before the limitation on the civil action. '^64 Ind. App. 598, 330 N.E.2d 785 (1975). 1980] TABER v. HUTSON 1011 ceptions"^^ noted above, the court of appeals further indicated that a defendant, whose actions were in heedless disregard of the conse- quences, could properly suffer an award of punitive damages despite the possibility that a criminal prosecution might subsequently be brought upon the same course of conduct. '^^ This holding was unfor- tunate in two respects: first, the case cited by the Schramm court did not justify or support the exception, *^*^ and secondly, the excep- tion was clearly in conflict with the double jeopardy rationale thought to support the Taber rule.**^ Both of these shortcomings were later recognized in Glissman v. Rutf^ which rejected the heedless disregard exception as contrary to the principles of double jeopardy by stating: [I]t is clear that the rule announced by our Supreme Court in Taber has been adhered to and is binding upon this court. Under such circumstances it would be wholly illogical and contrary to the basic concerns of punitive damages to bar their recovery against one whose conduct constituted a criminal violation which was characterized by deliberate and malevolent intent against the victim, but permit both criminal prosecution and the sanction of punitive damages where the defendant's conduct merely exhibited a "heedless disregard of the consequences" to his victim. ^^ **rhe Schramm court characterized the three instances existing outside the scope of the Taber rule as "exceptions" to the rule. Id. at 606, 330 N.E.2d at 791. This ter- minology, at least as applied to the statute of limitation and the corporate defendant, appears to be a misconceptualization. The Taber rule operates to bar the recovery of punitive damages in a civil action when the defendant is also subject to criminal pro- secution for the same act. An "exception" to the rule would therefore allow the recovery of punitive damages despite the possibility of a subsequent criminal prosecu- tion. As was noted in the text above, when the defendant is a corporation or the criminal statute of limitation has expired, a subsequent criminal prosecution is barred at the outset. Thus, these situations merely represent factual settings existing outside the scope of the Taber rule. ''Id. **As support for this exception, the court cited: True Temper Corp. v. Moore, 157 Ind. App. 142, 299 N.E.2d 844 (1973); Capitol Dodge, Inc. v. Haley, 154 Ind. App. 1, 288 N.E.2d 766 (1972); Moore v. Crose, 43 Ind. 30 (1873). ^*If a heedless disregard on the part of the defendant could support an award of punitive damages, this exception would no doubt swallow the entire Taber rule. '°372 N.E.2d 1188 (Ind. Ct. App. 1978). *'M at 1191. In commenting upon the cases cited by Schramm as support for the exception, the Glissman court stated: In True Temper Corp. v. Moore (1973), 157 Ind. App. 142, 299 N.E.2d 844. the punitive damage award was against a corporation which was not subject to criminal prosecution. The term "heedless disregard, etc." was used in discussing the grounds for securing punitive damages. The same was true in Capitol Dodge, Inc. v. Haley (1972), 154 Ind. App. 1, 288 N.E.2d 766. Moore v. 1012 INDIANA LAW REVIEW [Vol. 13:999 The heedless disregard exception appears to have been finally laid to rest one year after Glissman in McCarty v. Sparks^^ when Judge Robertson, who first announced this exception to the Taber rule, adopted the Glissman court's conclusion.^^ In light of the foregoing analysis, it appears that the scope of the Taber rule has recently been extended beyond its original bounds to further prevent the civil plaintiff from recovering punitive damages when the defendant is also subject to criminal pro- secution. Of the three original situations existing outside the scope of the Taber rule, only one — the criminal statute of limitation — re- mains unaffected by recent statutory or case law developments. However, even the criminal statute of limitation may prove to be of little advantage to the plaintiff. In those egregious cases in which the plaintiff could best show the malevolent conduct required to sus- tain an award of punitive damages, he may be forced by the longer statute of limitation to relinquish any claim of punitive damages. Practically speaking, the Taber rule has, indeed, become a com- prehensive impediment to a plaintiffs rightful recovery of punitive damages merely because the defendant is also subject to criminal prosecution. V. The Rationale Supporting the Taber Rule Much confusion has centered upon the rationale justifying the application of the Taber rule. Several commentators have indicated that in light of the Supreme Court's construction of the double jeopardy clause of the United States Constitution,^^ the Taber doc- trine must necessarily be founded upon some concept of fairness rather than directly upon the constitutional mandate against double jeopardy.^^ This argument overlooks the power of a state legislature Crose (1873), 43 Ind. 30 reversed an award of punitive damages where the in- struction given by the court permitted them to be assessed without any showing of "malice, insult, or deliberate oppression." 372 N.E.2d at 1190 n.3 (original emphasis). ''388 N.E.2d 296 (Ind. Ct. App. 1979) (Glissman and McCarty were decided across appellate district lines. Glissman, in rejecting the heedless disregard exception was speaking for the third district, while Schramm and McCarty were both first district cases). ^^Id. at 298. "Glissman also disposes of McCarty's claim that Spark's conduct, as being in 'heedless disregard of the consequences,' is a viable exception to the general rule disallowing punitive damages." Id. ^'Breed v. Jones, 421 U.S. 519, 528 (1975), and Helvering v. Mitchell, 303 U.S. 391, 399 (1938), construed the double jeopardy clause of the United States Constitution as applying only in the criminal context. Benton v. Maryland, 395 U.S. 784, 794 (1968), held that the double jeopardy prohibition of the fifth amendment of the United States Constitution applied to the states through the fourteenth amendment. ^^See Note, supra note 9, at 524 n.57. 1980] TABER v. HUTSON 1013 to extend the protection provided under the state constitution beyond that offered by the Federal Constitution. Despite the Supreme Court's holding that the principles of double jeopardy em- bodied in the United States Constitution will not protect the criminal defendant from an award of punitive damages, this holding does not preclude the Indiana Supreme Court from construing article I, section 14^^ of the Indiana Constitution as extending dou- ble jeopardy protection to this class of defendants. Accordingly, it is just as feasible that the Taber rule stands directly upon the double jeopardy clause of the Indiana Constitution as solely upon considera- tions of fairness to the defendant. As will be discussed below, it was the failure of the early Indiana courts to recognize this dichotomy between the policy of fairness underlying the double jeopardy clause and the direct application of the clause which produced the numerous inconsistent and slightly illogical results found in the wake of Taber v. Hutson.^^ A. Development of the Rationale Initially, it should be noted that the Taber court did not adopt the constitutional mandate against double jeopardy as the foundation of its decision. The court merely indicated that such a result would not comport with "the spirit of our institutions."^^ Indeed, the court indicated that the rule had no constitutional footing through its recognition that the double jeopardy provision of the constitution did not relate to remedies secured by civil proceedings.^^ Thus, the supreme court's allusion to the double jeopardy clause was ap- parently made solely for the purpose of illustrating the basic con- cept of fairness "inculcated by every well-regulated system of government"^'^^ which, from the court's perspective, would have been violated if the defendant had suffered an award of punitive damages. The subtle distinction made by the Taber court between the direct application and the policy of the double jeopardy clause was completely overlooked in Koerner v. Oberly^^^ which was decided '^'Article I, § 14 of the Indiana Constitution provides that, "No person shall be put in jeopardy twice for the same offense. No person, in any criminal prosecution, shall be compelled to testify against himself." ^^5 Ind. 322 (1854). ''Id. at 325. *^"The constitution declares, that 'no person shall be twice put in jeopardy for the same offence;' and though that provision may not relate to the remedies secured by civil proceedings, still it serves to illustrate a fundamental principle inculcated by every well-regulated system of government . . . ." Id. '''Id. '"'56 Ind. 284 (1877). 1014 INDIANA LAW REVIEW [Vol. 13:999 twenty-three years after Taher. In Koerner, the supreme court was confronted with a statute^°^ which provided for exemplary damages in a civil action brought by a wife against anyone selling alcoholic beverage to her habitually inebriated spouse. The statute also made the sale a misdemeanor. In addressing the double jeopardy issue raised by the defendant, the Koerner court cited the Taher opinion and stated, "The provision of the statute allowing exemplary damages, as applied to cases like the present, violates the fundamen- tal principle embodied in the Bill of Rights, that no person shall be put in jeopardy twice for the same offence; and ... as applied to such cases, [the provision] is inoperative and void."^''^ If the Taher court had grounded its opinion directly upon an application of the double jeopardy clause of the Indiana Constitution, the result in Koerner would have undoubtedly been correct; the constitutional mandate against double jeopardy is as effectual against the legislature as it is against the courts. However, as was noted above, the result in Taher was grounded merely upon the policy of the dou- ble jeopardy clause rather than its direct application. It is, therefore, submitted that the result in Koerner represents little more than a misconstruction of Taher v. Hutson^°* That the Koerner court was confused as to the proper basis of the Taher decision is evidenced by the result reached by the same court in Schafer v. Smith.^^^ Schafer was an action brought upon the same statute^"^ as that involved in Koerner. The first opinion for the Schafer case was announced by Judge Howk during the February term of 1877.^°^ In upholding the constitutionality of the statute, the court specifically indicated that the double jeopardy clause did not apply and further stated: We recognize the rule which ordinarily prevails, that, where a given act is, or may be, "the subject of a criminal prosecution and also of a civil action for damages in favor of the party thereby injured, exemplary damages will not be allowed in such action." This rule, however, like most of the rules of civil practice, is a proper subject of legislative action, and the general assembly may well provide in such a case as the case at bar, that the injured party may recover, not only actual damages, but also exemplary damages, and the courts of the state will be bound to carry out and enforce such provision. ^°® '"'Act of Feb. 27, 1873, ch. 59, §§ 12, 14, 1873 Ind. Acts 151. '"^56 Ind. at 287. •'"'5 Ind. 322 (1854). •"^63 Ind. 226 (1878) (Schafer was the sister case of Koerner). '"^See note 102 suprcu •°M Cent. L.J. 271 (1877), noted in Aldridge, supra note 42, at 130. '"M Cent. L.J., supra note 107, at 272 (emphasis added). Mr. Aldridge, in his arti- 1980] TABER v. HUTSON 1015 Schafer I was never reported in the Indiana Reports because four days after the decision was rendered without dissent, the court granted a rehearing on the matter. '°^ It was at this point that Koerner was decided exactly opposite to the holding in Schafer I. Amazingly, the conclusion reached by the Koerner court failed to inspire even a dissent from Judge Howk. Upon rehearing, "° the Schafer controversy was curtly disposed of with the statement, "[the] question of exemplary damages has been fully discussed and ruled upon by this court, in the case of Koerner v. Oberly^^^^ With the Koerner court's misconstruction of Taber v. Hutson,^^^ the rationale supporting the Taber rule was unquestionably a direct application of the double jeopardy clause of the Indiana Constitu- tion. The confusion concerning the rationale of the Taber rule was compounded in 1885 when State ex rel Scobey v. Stevens^^^ came before the Indiana Supreme Court. As was the situation in Koerner, the Stevens case involved a statute which arguably made the defen- dant subject to both civil and criminal penalties for a single course cle arguing in support of the direct application theory of the Taber rule, criticized the holding in Schafer I by stating: In arriving at this conclusion the court completely lost sight of the origin and basis of the Indiana rule which seemingly was one of constitu- tionality and double jeopardy and instead, relegating it to one of procedure or "a rule of civil practice" which of course, would make it a subject of legislative action. By resolving the basis of the Indiana rule to be one of pro- cedure in order to save the statute, the court not only abandoned the basis upon which the rule against exemplary damages was originally predicated, but forced a rationalization of all previous cases where exemplary damages were denied, that was totally foreign to common law concepts. The common law had never known a rule of procedure which barred recovery of ex- emplary damages when the defendant was subject to criminal prosecution. How our courts could authoritatively support such a rule without legislative sanction is hard to conceive. The constitutional argument must be maintained or logically the whole formidable array of decisions since Taber v. Hutson which denied exemplary damages must fall. Aldridge, supra note 42, at 129. The short answer to this criticism, of course, is that firstly, in light of the express language of the Taber court it is doubtful that the original basis of the Taber rule was one of constitutionality. Secondly, that the holding in Schafer I forced a rationalization of the prior cases denying punitive damages is of little consequence. Indeed, this rationalization appears miniscule when balanced against the rationalization required to support the cases following Koerner (which placed the Taber rule directly on constitutional foundations) which allowed the legislature to grant punitive damage despite the Taber holding. '"'Aldridge, supra note 42, at 129. "°63 Ind. 226 (1878). "7d at 228. "'5 Ind. 322 (1854). "n03 Ind. 55, 2 N.E. 214 (1885). 1016 INDIANA LA W REVIEW [Vol. 13:999 of conduct. The statute"^ in Stevens prohibited a public official from accepting an unauthorized fee for the performance of an official act. In addition to making the act a misdemeanor, the statute also made the wrongdoer liable in damages to the injured party for five times the illegal fee accepted. ^^^ Clearly, the statute constituted the imposi- tion of a civil penalty by the legislature. The single difference between the penalty authorized by the statute in Stevens and the imposition of punitive damages generally is that in the former, the legislature had authorized the amount of the penalty while, with respect to punitive damages generally, the jury determines the ap- propriate amount of the award. ^^^ Thus, if, as the Koerner court held, the Taber rule was grounded upon a direct application of the double jeopardy clause, the statute should have been held un- constitutional. A direct constitutional mandate must be as effective against the legislature as it is against the courts. ^^^ Nonetheless, the Stevens court upheld the statute by characterizing the amount recovered in the civil action as compensation rather than a penalty. ^^^ However, as one author has commented, "[e]yen the elasticity of definition could never permit of damages to the extent of five times the actual damage suffered being deemed compen- satory."^^® It is important to note that in reaching its conclusion, the Stevens court did, however, recognize the distinction made by the Taber court between the technical application of the double jeo- pardy clause and the policy of fairness underlying the clause. ^^° The final blow to the Koerner direct application theory of the Taber rule occured in State ex rel Beedle v. Schoonover.^^^ Schoonover, similarly, involved a statute^^^ which allowed a party bribed to vote in a certain manner, a civil cause of action for $300 against the bribing party. The legislature had also made the bribery a criminal offense in a statute passed the same day as the civil act.^^^ The defendant asserted in the civil action that the penalty con- stituted a violation of the double jeopardy clause of the Indiana Con- stitution.'^" In rejecting this argument, the Schoonover court stated: ""Act of March 31, 1879, ch. 60, § 37, 1879 Ind. Acts 142 (Spec. Sess. 1878) (current version at Ind. Code § 17-2-44-7 (1978)). "Yd. "^See cases in note 16 supra. '"See Koerner v. Oberiy, 56 Ind. 284 (1877). "n03 Ind. at 64-65. "'Aldridge, supra note 42, at 132. ''"103 Ind. at 60-61. >''135 Ind. 526, 35 N.E. 119 (1893). '''Act of Mar. 9, 1889, ch. 200, § 1, 1889 Ind. Acts 360. '''Id. ch. 130, § 3, 1889 Ind. Acts 267. •'"135 Ind. at 531, 35 N.E. at 120. 1980] TABER v. HUTSON 1017 The Legislature has ample power to create a remedy for wrongs which, at common law, were without redress. Th-s being so, a coordinate branch of the government can not nullify its action. It is true that section 59, article 1, of the Bill of Rights, provides that "No person shall be put in jeopardy twice for the same offense," but the jeopardy mentioned is the peril of a second criminal prosecution for the same felony or misde- meanor, and the liability named in section 1396, Elliot's Supp., is a civil penalty for a tortious act .... ^^^ With the holding that the civil act did not violate double jeopardy, it became clear that the legislature could provide for a civil penalty and criminal prosecution for a single act of the defendant. This, of course, was in direct conflict with the holding of Koerner v. Oberly:'' The confusion cast by the Stevens and Schoonover opinions upon the precise rationale underlying the Taber rule persists even today, as was evidenced by the court of appeals in Glissman v. Rutt}'^^ Should the Taber rule be retained, it must be solidly grounded upon either (1) a direct application of the double jeopardy clause of the Indiana Constitution, in which case it must act as a bar to the legislature as well as to the courts, or (2) the considerations of fairness underlying the double jeopardy provision. It is submitted that in view of the contrary language employed by the Taber court and the theoretical problems encountered under the first alternative rationale, the Indiana Supreme Court should adopt the original fairness rationale to support the Taber rule if it is to be retained. B. Theoretical Difficulties of Direct Application of the Double Jeopardy Clause The propriety of the direct application theory of the Taber rule is questionable when viewed with respect to situations in which a '^^M It should be noted that in Schoonover, the court, at one point, seems to sup- port the allowance of punitive damages by the legislature in terms of what could be considered a "fairness" approach to the Taber rule. Because the problem of political bribery had become so widespread and had permeated virtually every level of govern- ment, the court appeared to be of the opinion that it was not unfair that the defendant suffer criminal prosecution in addition to an award of punitive damages. Id. at 530-31, 35 N.E. at 120-21. If this was in fact the view taken by the Schoonover court, the case comports with the view taken in Taber. ''«56 Ind. 284 (1877). '^'372 N.E.2d 1188 (Ind. Ct. App. 1978). The Glissman court applied the rule but. in light of the Beedle decision, was unable to articulate the grounds for its holding. 1018 INDIANA LAW REVIEW [Vol. 13:999 defendant is, in fact, subjected to double punishment, as defined under the reasoning of Taber v. Hutson and Koerner v. Oberly. In Durke v. State,^^^ the Indiana Supreme Court met squarely the issue of whether a defendant who had been previously pro- secuted^^^ for burglary could, in consonance with the double jeopardy clause of the Indiana Constitution, also be prosecuted for the con- spiracy to commit the same burglary. In upholding the constitu- tionality of the subsequent conspiracy conviction, the supreme court recognized that one set of operative facts may give rise to two separate and distinct offenses. ^^° The defendant could, therefore, be prosecuted for either or both offenses without violating the constitu- tional mandate against double jeopardy. However, if, as Durke held, no violation of the principles of double jeopardy occur when the defendant is twice subjected to the more rigorous criminal sanc- tions, it is difficult to perceive the rationality of directly applying the principles of double jeopardy to bar a civil plaintiff from seeking punitive damages merely because the defendant is subject to criminal prosecution for the same conduct. ^^^ Secondly, Indiana adheres to the rule that, "[a] man charged with crime may be prosecuted by two sovereigns, the United States and the State of Indiana, if the same act is an offense under both the federal and the state laws."^^^ Therefore, under the dual sovereign rule, a defendant stands to suffer the harrassment of two trials and two punishments within the bounds of the constitutional protection against multiple punish- ments. ^^^ Setting aside for the moment any considerations of federal- ism,^^* it is again difficult to grasp the rationality of allowing both the state and the federal government to exact criminal punishment '''2QA Ind. 370, 183 N.E. 97 (1932). '^^he defendant in Durke was acquitted of the burglary. However, in Collier v. State, 362 N.E.2d 871 (Ind. Ct. App. 1977), the defendant was simultaneously convicted for a violation of the Offenses Against Property Act and for conspiracy to commit the same offense. The violation itself carried a one-to-ten year penalty while the con- spiracy to commit the violation carried a two-to-fourteen year penalty. In rejecting the double jeopardy argument of the defendant, the court stated that, "Collier would have this court believe that since both of his convictions stem from the same prohibited con- duct, he is being punished twice for the same offense." Id. at 874. The court went on to hold that, "one set of operative facts gave rise to two distinct offenses and that Collier was not subjected to multiple punishments for the same offense. Therefore, the princi- ple of double jeopardy does not apply." Id. ''°204 Ind. at 377, 183 N.E. at 99-100. '^'Sce Brief of Appellant, supra note 43, at 37. •''Richardson v. State, 163 Ind. App. 222, 225, 323 N.E.2d 291, 293 (1975). See also Heier v. State, 191 Ind. 410, 133 N.E. 200 (1921). '^'Richardson v. State, 163 Ind. App. 222, 323 N.E.2d 291 (1975). ^^*See generally Fisher, Double Jeopardy, Two Sovereignties and the Intruding Constitution, 28 U. Chi. L. Rev. 591 (1961). 1980] TABER v. HUTSON 1019 from a defendant, yet apply the double jeopardy clause to prevent a recovery of punitive, damages because the defendant is subject to criminal prosecution.'^^ In view of the foregoing theoretical difficulties and the Taber court's recognition that the double jeopardy clause did not directly apply to remedies secured by civil proceedings, ''^"^ it is submitted that the Taber rule, if retained at all, should be re-established upon its original grounds of fairness underlying the double jeopardy clause. In so doing, both the courts and the legislature would be freed from the constraints of logic presently encountered under the direct application theory thought to support the Taber rule by the majority of the Indiana Courts of Appeals. Further, in adopting this rationale, considerable latitude would be gained by the Indiana courts to consider the various alternative methods available for pro- tecting the defendant from dual liability without being unduly harsh upon the civil plaintiff. One such alternative method of alleviating the Taber problem will be discussed in the following section. VI. The Supplemental Approach -An Alternative to the Taber Doctrine In pointing out the difficulties attending the minority position of barring punitive damages when the defendant is subject to criminal liability for the same conduct, this Note should not be construed as supporting the majority position. Neither rule is entirely satisfac- tory. The majority view, although not a violation of the letter of the provision against double jeopardy, '^^ does not recognize that a defen- dant may be overpunished for the commission of a single act. The minority Indiana position fails to recognize the generally accepted view that one course of conduct may constitute an offense against both the private and public interests.'^® The initial recognition of these failures suggests a possible solution, in particular, to the shortcomings of the minority position on the issue. '^^See Brief of Appellant, supra note 43, at 38. If, in fact, Indiana is committed to the direct application of the double jeopardy clause to bar punitive damages when the defendant is also subject to criminal prosecution, one further theoretical difficulty arises: Why does Indiana not offer other criminal safeguards such as "proof beyond a resonable doubt" and "confrontation of adverse witnesses" to this defendant? Logi- cally, it would seem that under the direct application theory of the Taber rule these further constitutional guarantees should be accorded the punitive damages defendant when he is also subject to criminal prosecution. See generally Note, Criminal Safeguards, supra note 35. '^®See text accompanying notes 98-101 supra. '^^Reference is made here to the fifth amendment of the United States Constitu- tion, which, as noted, supra at note 30, has been read literally and made applicable to successive criminal prosecutions. ^^See text accompanying notes 31-34 supra. 1020 INDIANA LAW REVIEW [Vol. 13:999 Since its inception, the Taber rule has been unbendingly applied to tort claimants, despite the fact that the defendant may not, and probably will not, be subjected to criminal liability. '^^ In this fashion, the rule not only operates unfairly to deprive the deserving plain- tiff, but also to leave unchecked, conduct which society has ex- pressed an interest in regulating. If one accepts that punishment and deterrence are the primary objectives of both criminal and civil sanctions, '"^ these devices are rendered completely ineffective in ser- ving these purposes. Perhaps a better approach to the double jeopardy problem would be to shift the primary emphasis away from the number of punishments to which the defendant may be subjected and focus instead on the quantum of punishment that the defendant may suf- fer. One noted author, speaking as an advocate of this so-called "sup- plemental approach,"^*^ has stated that: If the criminal courts punish all criminals effectively, a further admonition in civil courts can not be useful in itself. The only excuse for invading a culprit's economic resources is to discourage such conduct as that in which he has in- dulged; and if he has been sufficiently admonished elsewhere, this reason disappears. ^''^ This approach appears not only to recognize the realities of the modern criminal justice system, but also to strike the most equitable balance between the individual's interest in protection against multiple punishment and society's interest in regulating undesirable conduct which may otherwise remain unchecked. The supplemental theory essentially entails the reciprocal ad- justment of the civil and criminal penalties. ^^^ This requires that in the situation where the defendant was prosecuted prior to the civil proceeding, the jury should be apprised of the penalty assessed against the defendant so that they may adjust the civil punishment accordingly. ^^^ This suggestion may, no doubt, disturb many defense lawyers, as this information may be misused by the jury to assume the defendant's liability or to increase the award. However, a possi- ble solution to this problem may be obtained through a bifurcated '^^he problem is particularly acute in cases of technical assaults and batteries, libel and trespass. These "crimes" generally remain unprosecuted, leaving punitive damages as the only punishment for these offenses. ^*''See cases cited in note 19 supra. ^*^See Note, Criminal Safeguards, supra note 35, at 415. '"Morris, supra note 18, at 1195. '"/d. at 1197. 1980] TABER v. HUTSON 1021 proceeding in which the determination of liability and damages are separated. '^^ Should the civil trial precede the criminal prosecution, the sup- plemental theory allows the civil jury to assess damages without regard to the possibility that the defendant will be punished in a subsequent criminal proceeding. ^^^ In this situation, if a criminal ac- tion is brought against the defendant, the adjustment would be made by the judge in the criminal trial through the imposition of minimum penalties or a suspended sentence.'*^ The greatest advantage of the supplemental approach is seen when applied to that class of cases where the crime committed by the defendant subjects him only to a fine, or the crime is rarely, if ever, prosecuted. ^''^ The former situation was presented in Glissman V. RuW^^ where the plaintiff had suffered serious injury as a result of an automobile collision with the defendant. The defendant had been found guilty of reckless driving in a former criminal prosecu- tion, and the court granted summary judgment for the defendant on the issue of punitive damages citing Taber v. Hutson as support. ^^'^ Under the supplemental theory, the Glissman jury would have been permitted to weigh the criminal punishment suffered by the defen- dant against the evidence presented as to his culpability to produce a civil penalty which, in addition to the criminal penalty, would ef- fectively punish and deter the defendant and others similarly situated. ^^^ The major problem with the supplemental approach is that the judge or jury is left with the difficult determination of what quan- tum of punishment will effectively serve the ends of punishment and deterrence. ^^^ This problem is especially profound when the jury must decide the appropriateness of the penalties, since the jury may lack the experience necessary to determine what punishment will serve to deter a given form of conduct in the future. ^^^ Secondly, while the supplemental theory may serve to prevent the excessive punishment which may occur under the majority view, it does not completely eliminate the double jeopardy issue. Under the sup- plemental theory, the defendant must still undergo two proceedings and, therefore, be twice placed in fear of punishment. ^^^ However, ^*^See Note, Criminal Safeguards, supra note 35, at 415-16. ''^See Morris, supra note 18, at 1197. '''Id. '*^See text accompanying notes 44-47 supra. >^^372 N.E.2d 1188 (Ind. Ct. App. 1978). ''°Id. at 1191. '^'See Morris, supra note 18, at 1197. '^^See Note, Criminal Safeguards, supra note 35, at 416. '^^See Morris, supra note 18, at 1179. '^*See Note, Criminal Safeguards, supra note 35, at 417. 1022 INDIANA LAW REVIEW [Vol. 13:999 when balanced against the less oppressive nature of punitive damages relative to criminal prosecution^^^ and the inequities of both the majority and minority positions, having the defendant face two trials may be justified. ^^^ This is especially true in light of the relief against the potential harshness of punitive damages provided by the supplemental approach.^" VII. Conclusion The recent pleas of the Indiana courts of appeal for a reevalua- tion of the rule against punitive damages when the defendant is also subject to criminal prosecution for the same course of conduct should be heeded. Despite the inequities frequently produced by the Taher rule, the rule has ironically been extended by statute to include those cor- porate defendants which may be subject to prosecution for the criminal acts of its agents. The confusion concerning the rationale of the rule has persisted since the Schoonover decision was announced in 1893. The Taher rule must be based upon either (1) a direct application of the double jeopardy clause, or (2) the considerations of fairness underlying the double jeopardy clause. In view of the Taher court's specific recogni- tion that the double jeopardy clause does not apply to remedies secured by civil proceedings and the theoretical difficulties en- countered under the direct application theory, it is submitted that the fairness theory should be adopted by the Indiana Supreme Court to support the Taher rule. The adoption of the fairness theory would relieve the Indiana courts and legislature from the con- straints of logic presently encountered under the direct application theory currently believed by the courts of appeal to support the Taher rule. In addition, the adoption of the fairness rationale as sup- port for the Taher rule would significantly increase the courts' latitude in testing the various alternatives to the Taher rule. One such alternative is the supplemental approach suggested by Pro- fessor Morris. The supplemental theory, in addition to its comprehension of the inefficiencies of the criminal justice system, strikes a far more ap- propriate balance between the individual concerns of double jeo- pardy and society's demand of punishment for socially unacceptable conduct. It is conceded that this approach will not completely eliminate the basis for a double jeopardy argument in that the '**See notes 35-39 supra and accompanying text. ^^See Note, The Imposition of Punishment by Civil Courts: A Reappraisal of Punitive Damages, 41 N.Y.U.L. Rev. 1158, 1175-76 (1966). '"See Morris, supra note 18. 1980] TABER v. HUTSON 1023 defendant may still face two judicial proceedings. However, given the less oppressive nature of punitive damages, relative to criminal sanctions, and the guard against excessiveness provided under the supplemental theory, having the defendant face multiple trials seems a far more justifiable response to the constitutional mandate against double jeopardy than that offered by the Taber rule. N. Kent Smith