The plaintiff sued for assault and battery and false imprisonment. At the trial the cause of action based on false imprisonment was withdrawn by the court from the consideration of the jury and the trial proceeded on the charge of assault and battery alone. For that wrong the plaintiff demanded $5,000.00 compensatory damages and $5,000.00 punitive damages. The jury returned a verdict for the full amount asked. From the consequent judgment the defendant has appealed.
There are no exceptions in the record and the defendant's brief contains no assignments of error. The brief sets forth two propositions of law, to-wit: "The verdict of $10,000 rendered in favor of the respondent and against the appellant in this case is manifestly excessive" and "The Supreme Court of Oregon is empowered under Article VII, Section 3, Oregon Constitution, to reduce an excessive verdict." The defendant moved in the Circuit Court for an order granting a new trial on the ground, among others, that the damages were excessive. The court denied the motion. The failure of counsel for the defendant to assign this ruling as error is accounted for by their concession that since the adoption of Art. VII, § 3, of the Constitution it has been uniformly held that the circuit courts of this
The question being an open one (Hust v. Moore-McCormack Lines, Inc., supra) and one of far-reaching importance, we requested Eugene K. Oppenheimer, Esquire, and B.A. Green, Esquire, to file briefs as amici curiae and to participate in the oral argument. The court desires at this time to acknowledge its indebtedness to these eminent members of our Bar, and to those whom Mr. Green associated with himself in the preparation of his brief, for their willing response to this call to professional duty and the industry and learning which they have brought to its discharge.
A brief statement of the evidence will suffice. The plaintiff, a young woman employed in a Portland shipyard, sought to gain admission to The Music Hall, a tavern of which the defendant was the proprietor, in order to a see a friend who had promised to be there at the time and pay the plaintiff a small debt. According to the plaintiff's evidence, without any provocation on her part, she was roughly evicted from the Music Hall by the defendant's son, who was an employee; was slapped, pushed and kicked by the defendant and his son, who directed profane language at her; was carried downstairs in a "bear hug" by a police officer employed
There is no evidence that the plaintiff was seriously injured. She testified that she had a bruise on her leg and one on her wrist as a result of the assault. She lost no time from her work.
The court is of the opinion that the verdict of $10,000.00 is excessive. Some members of the court think that only the award of punitive damages is excessive; others that both the awards of compensatory and punitive damages are excessive. Since a majority are of the opinion that this court has no power to disturb the verdict, it is not deemed necessary to discuss the grounds for these divergent views.
Article VII, § 3, of the Constitution, adopted by the people in 1910, reads as follows:
(1) Power of Circuit Court
1. Notwithstanding the failure of the defendant to assign as error the Circuit Court's denial of their motion for a new trial, we asked counsel to present in argument the question of the trial court's power over the verdict. We did so for the reason that the first sentence of Art. VII, § 3, applies both to the Circuit Court and to this court, and it was thought that consideration of the Circuit Court's power, as affected by the provision, might throw light on the propositions which the defendant seeks to maintain. We have examined the question anew and see no reason to depart from that long line of decisions, beginning with Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 133 P. 780, 134 P. 1191, through Timmins v. Hale, 122 Or. 24, 256 P. 770, down to Hust v. Moore-McCormack Lines, Inc., supra, 180 Or. 409, 177 P.2d 429, which hold that, since the adoption of the constitutional amendment, the circuit courts of this state no longer have the power to set aside a verdict in an action for unliquidated damages such as this on the ground that the verdict is excessive.
The first sentence of Art. VII, § 3, is not a grant of power to the courts but a limitation on their powers. It reiterates in substance the provision of the Constitution,
The argument is made that the circuit courts "have authority to grant a new trial if there is no evidence to support the verdict in its entirety, although there may be some substantial evidence that the plaintiff was damaged to some extent less than the amount of the verdict". This may be done, it is said, where "the verdict is in excess of an amount that would be regarded
We think the argument is unsound. It is in reality only a formula under which the courts would in practice do the very thing which they were accustomed to do before Art. VII, § 3, was adopted. In trying to give expression to the principles which should guide the trial court in determining whether an award of damages is so excessive as to warrant setting aside the verdict, this court has said that the verdict must be such "as reasonable men would not return under the circumstances of the case". Serles v. Serles, 35 Or. 289, 295, 57 P. 634; Multnomah County v. Willamette Towing Co., 49 Or. 204, 213, 89 P. 389. Other statements of the rule are the following: "the damages are palpably or outrageously excessive", Arkansas Valley Land & Cattle Co., v.
It is difficult for us to perceive that there is any substantial difference in the standard now suggested, namely, what "all reasonable men" would regard as the maximum recovery justified by the evidence, and these time-honored standards to which the courts have customarily adhered in passing on the question of whether a new trial should be granted for excessive damages. Yet the courts, in exercising that function, never supposed that they were doing otherwise than passing on a question of fact, or that they were holding that there was "no evidence to support the verdict", as a court does when it grants a nonsuit or a directed verdict or enters judgment non obstante veredicto. If, therefore, the contention that we are discussing is to prevail, it must be concluded that Art. VII, § 3, has, at least so far as verdicts for excessive damages are concerned, made no change whatever in the law and that the courts are as free to deal with such verdicts as they were before the provision was adopted.
Consideration of the language of the Seventh Amendment of the Constitution of the United States
The guaranty of jury trial in the Oregon Constitution, as originally adopted, is found in the Bill of Rights, Art. I, § 17, and reads as follows:
The first sentence of Art. VII, § 3, reads:
It will be observed that the first sentence of Art. VII, § 3, departs somewhat from the language of Art. I, § 17, of the Oregon Constitution and follows closely the language of the federal guaranty up to the last phrase. The Federal Constitution says that "no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law"; our present Constitution says that "no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict." The Supreme Court of the United States holds that, "according to the course of the common law", a trial court may set aside a verdict which it deems excessive
It may be assumed that the framers of Art. VII § 3, were not unacquainted with the construction which the Supreme Court of the United States had theretofore placed upon the Seventh Amendment of the Federal Constitution; and it is evident that, while following faithfully the language of the first part of the Seventh Amendment, they deliberately rejected the common law exception therein. When they substituted in the place of that exception the words, "unless the court can affirmatively say there is no evidence to support the verdict", they in effect declared their purpose to eliminate, as an incident of jury trial in this state, the common law power of a trial court to re-examine the evidence and set aside a verdict because it was excessive or in any other respect opposed to the weight of the evidence.
(2) Power of Supreme Court
2. We are thus brought to the defendant's proposition that Art. VII, § 3, authorizes this court to reduce an excessive verdict. The first sentence of the section, standing alone, and applying alike, as we have said, to the Supreme Court and the circuit courts, so far from being a grant, is, as we have seen, a denial of the asserted power. The grant is sought to be found in the succeeding sentences, whose provisions apply to the Supreme Court alone. They appear on their face to have been adopted for the purpose of enlarging this court's powers in certain situations so that litigation can be terminated here and the mischief of repeated new trials reduced. Knight v. Beyers, 70 Or. 413, 418, 134 P. 787; Hoag v. Washington-Oregon Corp., supra, 75 Or. 611. For the accomplishment of this end either party is authorized to bring to this court the entire record of the trial — the whole testimony, the instructions of the court to the jury, and any other matter material to the appeal. After careful consideration of all the matters thus submitted, the Supreme Court is authorized by the third sentence of the section either to affirm the judgment, notwithstanding any error committed during the trial, or to direct the entry of such judgment as should have been entered in the court below.
In numerous cases this court has said that this power to retry the case can be exercised only when there is error in the record. Emmons v. Skaggs, 138 Or. 70, 74, 4 P.2d 1115, and other cases cited in the special opinion of Bailey, J., in Johnson v. Ladd, supra, 144 Or. 291, 292. See, also, Hust v. McCormack Lines, Inc., supra, 180 Or. 417. The defendant insists, however, that the power does not depend upon the presence of error in the record and that, "since the amendment deprived
The suggested construction, in our opinion, is not within the language of the sentence nor relevant to its purpose. The mischief aimed at, as we have already said, was a multiplicity of new trials. But this court had never, prior to the adoption of Art. VII, § 3, in 1910, ordered the retrial of a case in which the record was free from error. The provision is concerned with cases where there is "error committed during the trial", and is a direction to this court as to what it may in its discretion do in such cases only, that is to say, we may affirm the judgment if we think it is right, or change it if we think it is wrong, and can determine what it should have been. The latter power has been exercised to reduce the verdict, as in the Hoag case and Martin v. Oregon Stages, Inc., 129 Or. 435, 277 P. 291 (both personal injury actions), in Paget v. Cordes, 129 Or. 224, 277 P. 101 (assault and battery and false imprisonment), and in other cases involving claims for unliquidated damages. It has never been exercised in any case except as an alternative to granting a new trial for error. We have no occasion now to consider whether this court has correctly applied the constitutional provision in the cases just cited. It is sufficient to say that there is
A number of our decisions are cited as lending aid to the theory that this court may reduce the verdict when it finds that the evidence does not support it "in its entirety". Many of these decisions are of the same type as the Hoag case and do not call for separate discussion. In such cases this court has not undertaken to say that "there is no evidence to support the verdict". Having found reversible error in the record and being of the opinion that we could determine what judgment should have been entered in the court below, we have simply appraised the evidence as a jury would and arrived at our own determination of a proper award of damages. Cases arising under the Jones Act, such as Wychgel v. States Steamship Co., 135 Or. 475, 296 P. 863, and Fitze v. American-Hawaiian Steamship Co., 167 Or. 439, 117 P.2d 825, may be put out of view
Robertson v. Frey, 72 Or. 599, 144 P. 128, is an instance where this court affirmed the judgment notwithstanding error in the record.
Lyons v. Browning, 170 Or. 350, 133 P.2d 599; McDaniels v. Harrington, 80 Or. 628, 157 P. 1068; and Weatherspoon v. Stackland, 127 Or. 450, 271 P. 741, have certain features in common. In Lyons v. Browning we sustained the action of the trial court in setting aside the verdict in an action to recover for the killing and injuring of a large number of turkeys. The verdict included an allowance of damages for the killing of six tom turkeys notwithstanding uncontradicted evidence that only four had been killed. On of the grounds of our decision was that the court erred in instructing the jury in effect that they were authorized to find a verdict for the plaintiff in the amount of $1,575.00 (the full amount prayed for) when the evidence would not support such a verdict. In McDaniels v. Harrington, where the plaintiff sued to recover, among other items, the reasonable value of work and labor performed and failed to offer evidence of such reasonable value, it was held that the trial court erred in not withdrawing this claim from the jury. Rather than remand the case for a new trial this court determined the amount to which plaintiff was entitled from the evidence before it. In Weatherspoon v. Stackland, an action to recover the sales price of apples, the jury failed to give the defendant credit in their verdict for a sum which the pleadings admitted that he had paid. The trial court, with the plaintiff's consent, reduced the judgment accordingly, and it was held
British Empire Ins. Co. v. Hasenmayer, 90 Or. 608, 178 P. 180, was an action to collect the balance due on a subscription to corporate stock — a liquidated claim — in which we approved the action of the court below in setting aside a verdict of $1.00 for the plaintiff because it was not and could not be supported by either the evidence or the pleadings.
We think that no discussion is necessary to show that none of these cases tend in any way to support the proposition that either this court or the Circuit Court is authorized to declare that in a case like this the evidence does not support the verdict "in its entirety" simply because the court thinks that the verdict is too large.
Our attention is also called to Shives v. Chamberlain, 168 Or. 676, 687, 126 P.2d 28, a malpractice case, in which the court said, in answering a complaint that the verdict was excessive:
This language does seem by implication to be in accord with the defendant's theory. It may be that here we find the birth of the notion that a verdict for unliquidated damages for a single wrong (there being no separate and clearly distinguishable items of the claim to which separate and distinguishable items of evidence apply, as in Lyons v. Browning for example), can be split up by the court, as it were, into separate verdicts, one of them said to be supported by the evidence and the other to have no such support. At all events, the statement is dictum, and its implication is disapproved.
(3) Passion and Prejudice
Prior to the oral argument we asked counsel to brief the following question:
The statutory grounds for granting a new trial are set forth in § 5-802, O.C.L.A., and include the following: "(5) Excessive damages, appearing to have been given under the influence of passion or prejudice; (6) Insufficiency of the evidence to justify the verdict or other decision * * *". Before the adoption of Art. VII, § 3, it was held that either of these subdivisions constituted a grant of authority to the trial court to set aside an excessive verdict. Adcock v. Oregon R.R. Co., 45 Or. 173, 181, 182, 77 P. 78. And see Hust case, 180 Or. 436. Since the adoption of the amendment it has been directly
On the other hand, the court has on several occasions indulged in dicta which it is claimed cast doubt upon the correctness of these rulings. See Weatherspoon v. Stackland, supra, 127 Or. 453; Malpica v. Cannery Supply Co., 95 Or. 242, 248, 187 P. 596; Sigel v. Portland Ry. L. & P. Co., 67 Or. 285, 290, 135 P. 866.
Since the submission of the case the court has reached the conclusion that it cannot say, either from the size of the verdict itself or from any incident of the trial, that the damages were given under the influence of prejudice and passion. We therefore deem it inappropriate to discuss the question above stated and leave for future consideration, in a case where that question shall be directly involved, whether we should adhere to our previous decisions holding that Subd. 5 of § 5-802, O.C.L.A., has been repealed by Art. VII, § 3, of the Constitution.
(4) Punitive Damages
On the argument it was suggested from the bench that the court might have the power to interfere with a verdict for exemplary damages even though it lacks that power with respect to compensatory damages. The basis of this suggestion seems to be that in awarding exemplary damages a jury acts something like a judge
3. What are called exemplary, vindictive or punitive damages are, as the terms indicate, assessed against the defendant in a tort action whose acts are characterized by malice or other circumstances of aggravation, as an example to deter others from committing a like offense and to punish the defendant. Such damages are allowed over and above those which fully compensate plaintiff for his loss, including injury to his feelings, mental anguish, humiliation and the like. It has been vigorously objected in the past, and in a few jurisdictions in this country it is still maintained, that there can be no such thing as damages for tort beyond full reparation. And it has been said that the doctrine has its origin in a misreading of the English cases in which the judges, in their charge to the jury, or in ruling on motions to set aside verdicts, referred to the damages as "exemplary" — not to indicate that they included or could include anything beyond compensation, but because, being large, they would, at the same time as they compensated the plaintiff, operate as an example to deter others. The question was vigorously debated three-quarters of a century or more ago by Professor Greenleaf (2 Greenleaf on Evidence (14th ed.) § 253, Note 2), Professor Sedgwick (1 Sedgwick on Damages §§ 347-354), and by some of the courts, conspicuously by Foster, J., in his scholarly and very lengthy opinion in Fay v. Parker, 53 N.H. 342. Mr. Justice Foster asks: "What kind of a civil remedy for the plaintiff is the punishment of the defendant?" and he answers: "The idea is wrong. It
4. The allowance of exemplary damages in a proper case is approved in Oregon. Harper v. Interstate Brewery Co., 168 Or. 26, 51, 120 P.2d 757; Coates v. Slusher, 109 Or. 612, 631, 222 P. 311; Bingham v. Lipman, 40 Or. 363, 370, 67 P. 98; and in most of the other states of the union. McCormick on Damages § 78.
5. In the trial of a case where exemplary damages are sought the judge determines as a matter of law whether there is evidence of malice, and, if he decides that there is, the assessment of such damages is committed to the discretion of the jury. Cholia v. Kelty, 155 Or. 287, 291, 63 P.2d 895; Martin v. Cambas, 134 Or. 257, 262, 293 P. 601; Gill v. Selling, 125 Or. 587, 591, 267 P. 812. The Supreme Court of the United States says: "This has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." Day v. Woodworth, 13 How. 363, 371, 14 L.ed. 181. And the jury has entire discretion to refrain from giving any punitive damages at all even though all the elements of malicious and damaging misconduct may have been established. McCormick on Damages 296, § 84, 4 Sedgwick on Damages 2660, § 1318.
In our own time it would appear that the courts are even more reluctant to set aside verdicts for exemplary than for compensatory damages. It is not done except
6. In our judgment no valid distinction, so far as the present question is concerned, can be drawn between compensatory and exemplary damages. It is impossible for the jury to arrive at the amount to be assessed against the defendant by way of punishment without considering and deciding questions of fact. It must determine first whether there was malice, and, if so, the degree of that malice, both of them questions of fact. It may give consideration to all those elements enumerated in Huckle v. Money, supra, and in doing so it necessarily determines what are the facts. See 4 Sedgwick 2659, § 1318. In fixing the amount of damages the jury, of course, may abuse the discretion committed to it. But in actions for tort, in general, one of the incidents is "that a very large discretion is given to the jury as to damages" (Pollock, The Law of Torts (13th ed.) 196), so that, if a verdict for exemplary damages may be set aside for abuse of the jury's discretion, then the same power would exist as to all those classes of
It is quite true that the infliction of punitive damages in a civil action bears a resemblance to a criminal penalty, so much so that one of the reasons given against the doctrine by its opponents is that it would sanction double punishment and violate, at least in spirit, constitutional provisions against double jeopardy. Fay v. Parker, supra. And see "The Indiana Doctrine of Exemplary Damages and Double Jeopardy", 20 Ind. L.J. 123. But, while considerations of this kind serve perhaps to emphasize to some extent the anomalous character of exemplary damages, they are irrelevant to the question before us. They do not alter the essential nature of the jury's task. Under a system such as ours, where the court responds to the law and the jury to the facts, it would be difficult indeed to say that a question which for centuries has been submitted to the decision of a jury is other than a question of fact. And the reluctance of the courts, having power to do so, to interfere with the jury's decision, gives added weight to this conclusion.
* * *
In ancient times, as is recounted in 1 Holdsworth's History of English Law (3d ed.) 337-347, when a jury brought in what seemed to be a false verdict the court examined by means of an attaint jury whether it was correct. If the original jury was convicted by the attaint jury they were imprisoned for a year, forfeited
The guaranty of the right to jury trial in suits at common law, incorporated in the Bill of Rights as one of the first ten amendments of the Constitution of the United States, was interpreted by the Supreme Court of the United States to refer to jury trial as it had been theretofore known in England; and so it is that the federal judges, like the English judges, have always exercised the prerogative of granting a new trial when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason. The state courts were conceded similar powers. 46 C.J., New Trial, §§ 136-141; 39 Am. Jur., New Trial, § 129. In this state these powers were written into the statute, § 5-802, O.C.L.A., Subds. 5 and 6; and up to 1910, when the people adopted Art. VII, § 3, of our Constitution, there was
The judgment is affirmed.
ROSSMAN, J., specially concurring.
I do not believe that the attacked verdict is excessive, even under the tests which were employed prior to the adoption of Article VII, Section 3, Constitution of Oregon. I do not think that this court is authorized to
Coleman v. Southwick, 9 Johns. (N.Y.) 45, 6 Am. Dec. 253.
The plaintiff was entitled to an award of compensatory damages in a sum representing just compensation to her for all injuries which she sustained as a result of the defendant's wrongful conduct. The jury was authorized to include amounts for the mental suffering, if any, arising from the indignity, disgrace and humiliation which the plaintiff underwent.
The physical injury which the plaintiff sustained was minor, and, in all likelihood, the award of $5,000 compensatory damages was based only in part upon it. The jury had a right to believe, however, that the plaintiff sustained intense mortification when the defendant's son and one of the latter's employees, who wore a police uniform, seized the plaintiff, booted her around, detained her in one of the defendant's rooms, and later placed her in the police patrol wagon which carted her off to the police station. This humiliating treatment which she underwent was experienced in the presence of a large assemblage of persons. If the plaintiff was all that a young woman should be, and we have no right to say that she was not, the award of $5,000 damages cannot be held to outrage one's sense of justice.
I conclude that the verdict must be sustained against the appellant's attacks. The above is the disposition which, I believe, should be made of this appeal. But I shall go on and state my opinion of the interpretation which the majority place upon Article VII, Section 3, Constitution of Oregon.
The adoption of Article VII, Section 3, Constitution of Oregon, was intended to effect a substantial change in the treatment of motions for new trials. The adoption of new procedure and the supplanting of old expressions with new ones are generally made for the purpose of getting rid of old ideas and ushering in new
The work performed by a jury in assessing damages, that is, in computing and estimating them, is materially different from the work performed in "finding" such a fact as the rate of speed of an automobile. The jury "finds" the rate of speed of the automobile by listening to the witnesses and by determining their credibility, in the event that the testimony is contradictory. But the amount of the damages is the result of computation, assessment and estimation. It is reached by applying the law governing damages to the injury as found by the jury. Discretion has its proper place in making the assessment. Notwithstanding this difference between the finding of a fact and the assessment of damages,
With these reservations and limitations, I concur in the opinion of the Chief Justice.
BAILEY, J., Specially Concurring.
Defendant, in his appeal, contends that the verdict is excessive and that this Court has the authority and power, under the provisions of article VII, section 3, Oregon Constitution, to retry the cause and to enter such judgment as it thinks proper. It is not claimed by defendant that the Circuit Court committed any error in the trial of the case or that plaintiff was not entitled to recover for the alleged injuries which she suffered. His only complaint is as to the amount of the verdict.
Article VII, section 3, guarantees to the litigants in this case the right to have the issues here involved tried by a jury. One of those issues is the amount which plaintiff is entitled to recover. The jury found that she was entitled to recover a definite amount. Since this
I cannot concur in the conclusion reached in the majority opinion that the damages awarded plaintiff are excessive, for to do so would amount to a reexamination of a fact tried by a jury in contravention of article VII, section 3. I do, however, concur in the result reached by the majority of the Court that we are in this case precluded from a reexamination of the facts herein tried by the jury, some of which facts are the compensatory and punitive damages awarded plaintiff. My views on this subject are more fully expressed in the opinion written by me in Johnson v. Ladd, 144 Or. 268, 280, 14 P.2d 280, 24 P.2d 17, 19.
BRAND, J. Concurring in part; dissenting in part.
I shall first state the extent of my concurrence and then set forth the limits and grounds of my dissent. On
In construing the 1910 amendment it must be borne in mind that it constitutes a limitation upon the judicial power of a coordinate branch of the government. In determining the extent of the limitations upon judicial power it is relevant to consider that the power to grant a new trial is a common law right inherent in all courts of general common law jurisdiction. Shain v. Meier & Frank Co., 140 Or. 518, 13 P.2d 360. The statutory provisions prescribing the grounds for a new trial do not restrict the trial court to the grounds specified in the statute. Pullen v. Eugene, 77 Or. 320, 146 P. 822, 147 P. 768, 147 P. 1191, 151 P. 474. Again we have held that the statutory provisions respecting new trials are remedial and should be liberally construed. Cicrich v. State Industrial Accident Commission, 143 Or. 627, 23 P.2d 534.
On the other hand it is apparent that by the adoption of Article VII, Section 3, it was intended to impose a substantial limitation upon the power of the courts, and I agree that it must be so construed as to effectuate that purpose. Prior to the 1910 amendment, trial courts had inherent power to grant new trials or to require a remittitur as a condition of the denial of a motion for a new trial whenever, in the opinion of the court, the verdict was against the clear weight of the evidence. Multnomah County v. Willamette Towing Co., 49 Or. 204, 89 P. 389. That power was expressly confirmed by O.C.L.A., Section 5-802 (6), which provides that a new trial may be granted for insufficiency of the evidence to justify the verdict. The rule of common law and of statute received its classic interpretation in opinions by Wolverton, C.J. and Robert S. Bean, C.J. respectively. Serles v. Serles, 35 Or. 289, 57 P. 634 and Multnomah County v. Willamette Towing Co., supra. Under subsection 6 of O.C.L.A., Section 5-802, it was formerly held that damages awarded by a jury may be so excessive and so opposed to the weight of the evidence as to justify the granting of a new trial, even though the verdict was not influenced by passion or prejudice. Adcock v. Oregon Railroad Co., 45 Or. 173, 77 P. 78, Hust v. Moore-McCormack Lines, Inc., 180 Or. 409, 436, 177 P.2d 429.
Since it does not sufficiently appear that the verdict was the product of passion or prejudice, the majority states that it is "inappropriate to discuss the question." Nevertheless, cases are cited with expressed approval which lay down a broader rule than is necessary for the decision of this case, and which state in effect that no court can grant a new trial even though the verdict may have been the product of passion and prejudice. In most instances such broad statements were unnecessary to the decision of the case since the existence of passion and prejudice was not established. The majority opinion not only cites such decisions as Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 133 P. 780, 134 P. 1191, and Timmins v. Hale, 122 Or. 24, 256 P. 770,
The statute, which is only declaratory of the common law, sets forth among the grounds for the granting of a new trial:
Prior to the 1910 amendment new trials were
The same rule was recognized in the recent case of Hust v. Moore-McCormack Lines, Inc., supra.
There was sound reasoning which supported the distinction in the treatment of verdicts merely excessive under subsection 6 on the one hand, and verdicts excessive because of established passion and prejudice on the other. In cases under subsection 6 the courts held
To the same effect was the holding in Cicrich v. State Industrial Accident Commission, 143 Or. 627, 23 P.2d 534. In that case the court said:
Reference to the first subsection of O.C.L.A., 5-802 shows that new trials may be ordered in the event of:
In the case of Veazie et al. v. Columbia & Nehalem River R.R. Co., 111 Or. 1, 224 P. 1094, it was held that Article VII, Section 3 has made no change in that subsection of the statute. Subsection 1 is merely a statutory declaration of a constitutional right to a fair trial and I cannot believe that the 1910 amendment was intended to render verdicts invulnerable to any judicial control if it clearly appears that they were rendered under the influence of passion and prejudice. I assume that the majority opinion has not foreclosed the issue which I have discussed since it affirmatively states that it is deemed inappropriate to discuss the question. I have only deemed it proper to present the foregoing considerations by reason of the fact that cases have been cited with apparent approval, with which I agree, if their application is limited to merely excessive verdicts, but which would impinge upon constitutional right if applied to verdicts rendered under the influence of passion and prejudice.
I now approach the problem of punitive damages.
Aside from the limitations imposed by Article VII, Section 3, it would seem clear that the circuit court has the power in its discretion to order a new trial on the simple ground that the punitive damages were excessive, or to require a remittitur in the alternative. As stated in the majority opinion, "Nevertheless, `The power of the court to set aside a verdict for exemplary damages is the same power, and is exercised upon the same principle, as in any case of excessive verdict,'", citing 1 Sedgwick 756, Section 388. We have already seen that prior to 1910 Oregon courts could, and did, grant new trials where the verdict was excessive or
The relevant constitutional provision is, "* * * the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court * * *" (Article VII, Section 3). The comments of learned writers concerning the rule which permits the award of punitive damages in tort actions appear in the majority opinion and they are pertinent. "The idea is wrong. * * * It is an unsightly and unhealthy excrescence, deforming the symmetry of the body of the law." It is "a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine. * * *" The fundamental basis of the law of torts is the redress of private wrongs, not the discipline of wrongdoers, yet our law permits the award of punitive damages. What are the pertinent distinctions between the assessment of compensatory damages and the imposition of punitive damages? Clearly, it is a fact tried by a jury when that body determines the amount of compensatory damages. Their legal duty is to fix an amount in money which is the equivalent, as
In the majority opinion it is pointed out that there is a very large discretion given to the jury even as to compensatory damages, and the opinion adds, "if a verdict for exemplary damages may be set aside for abuse of the jury's discretion, then the same power would exist as to all those classes of actions", including those for compensatory damages where discretion is involved. To be sure, a large discretion is vested in the jury in awarding compensatory damages for tort. The loss of an arm or a reputation cannot be scientifically estimated in money, yet the loss must be measured. But the jury's discretion in such a case is guided and controlled by rules of law and by facts in evidence from which the amount of damage is determined. Notwithstanding the necessary exercise of controlled discretion, the measure is still that of compensation and the materials for fact finding are found in the evidence.
In the trial of a criminal case the jury finds the facts and two days thereafter the judge imposes sentence. I have never heard it suggested that the judge in so doing is finding the facts. He is exercising a
Giving full credence to the plaintiff's story in the case at bar, and ignoring the persuasive testimony which contradicts portions thereof, we find that she has received $5,000 of compensatory damages for her paltry injuries and that the jury has then awarded by way of punishment and as an example to others, a fine of $5,000 against the defendants for an offence which, if tried in a justice court, would probably have received the maximum fine of $50. In the exercise of pure discretion based on its conception of public policy, the jury was guilty of an abuse of its power requiring a remittitur or a new trial. In my opinion the words, "fact tried by a jury", as employed in Article VII, Section 3, were intended to cover the special or general findings of a jury upon the ordinary issues raised by the pleadings and evidence, and as to which it is their duty to make findings. I do not believe that it was ever contemplated that the exercise of pure discretion by a jury in the imposition of punishment or in the effort to deter
A motion for a new trial was filed in the circuit court on the ground of the excessiveness of the verdict. It is obvious that the trial court denied the motion for a new trial because it was believed that Article VII, Section 3 had deprived the court of the power to grant one. The trial court has never exercised its discretion as to whether the verdict for punitive damages is excessive. I think the case should be remanded to the circuit court with directions to exercise its discretion in determining whether or not that portion of the verdict is excessive. There is ample authority for this procedure. Serles v. Serles, supra, and Hust v. Moore-McCormack Lines, Inc., supra. For the reasons stated, I dissent from that portion of the opinion of the majority which holds that punitive damages are protected by the provisions of Article VII, Section 3 of the constitution.