This review combines two separate appeals from the same judgment. In case No. 17670 one of the defendants, Val Montoya (Val), seeks a new trial on the ground that excessive damages were awarded against him, that the trial court failed to give certain jury instructions, and that his trial attorney inadequately represented him. In case No. 17646 the plaintiff, Santos Cruz (Santos), seeks a reversal of the trial court's directed verdict in favor of another defendant, Mike Montoya (Mike), and a remand for a new trial.
These cases arise from an incident in a Salt Lake City cafe where Santos sustained personal injuries as the result of a fight with the Montoyas. The facts were disputed at trial and the evidence was conflicting. However, on appeal the evidence is viewed in a light which is consistent with the jury verdict. Ostertag v. La Mont, 9 Utah.2d 130, 339 P.2d 1022 (1959).
Santos and his girlfriend, Darla (now his wife), entered the cafe late in the evening and sat a few tables away from Val, Mike, Joe and David Montoya who were already seated. The latter group had come from a bar where they had been drinking and playing darts in league competition. A comment from someone at the Montoya table directed at Darla precipitated an exchange of words between Santos and the Montoyas. Santos stood up and one of the Montoyas knocked him down. Darla and Santos identified the assailant as Joe Montoya while Val and Mike testified that he was David "Monty" Montoya. Darla testified that at this point all of the Montoyas joined in the beating — hitting and kicking Santos who was on the floor covering his head to protect himself, unable to fight back. A waitress saw one of the Montoyas grab Santos but did not see more since another of the Montoyas blocked her view.
Moments after this initial altercation had subsided and the Montoyas were walking away from Santos, he wiped blood from his lip and directed a comment at the Montoyas about the four on one odds of the fight. Darla made a similar comment. Val responded verbally and went back to Santos and struck him. Again, other Montoyas followed, kicking and hitting him and, in Santos' words, with "more anger" than the first time. This beating lasted a few minutes longer than the first one which was only a couple of minutes. In this altercation Val kneed Santos in the ribs, hit him in the head and kicked him. Santos also had a patch of hair pulled from his head; but, he did not know which of the Montoyas had held him down by the hair while the others had continued the beating. He was also kicked in the face. The owner of the cafe saw at least three of the Montoyas involved in the fight but could not identify who did what because they were all big men (weighing around 250 pounds each) who were similar in appearance.
None of the witnesses for Santos testified that Mike was involved in the second altercation. Santos testified that all of the other Montoyas participated. Mike testified that he had attempted to break up the fight.
Val claimed no involvement in the first altercation. He explained his involvement in the second fight as self defense against Santos who, upon recognizing Val as an
The fracas subsided and all of the Montoyas left the cafe before the police arrived. Santos sustained personal injuries including teeth knocked loose, hair pulled from his scalp, and his face and lip beaten so that they remained swollen for a time. Additionally his legs, back and ribs had been battered and his entire body ached. He lost days from his job, sought medical and dental care, and at the time of trial testified that he was still somewhat limited from engaging in sporting and other activities in which he had formerly participated.
The jury awarded a verdict against Val in the sum of $9,000 general damages, $579.89 special damages and $12,000 punitive damages. The trial court directed a verdict in favor of Mike because Santos had failed to prove a prima facie case against him. The other defendants were not present at the trial; however, jurisdiction of Joe was obtained and the court entered judgment of $1,000 general damages, $869.80 special damages and $1,000 punitive damages against him jointly and severally with the award against Val. Joe has not appealed.
Juries are generally allowed wide discretion in the assessment of damages. Amoss v. Broadbent, 30 Utah.2d 165, 514 P.2d 1284 (1973). Where personal injuries involve a loss of employment, personal inconvenience, and pain and suffering, there is no set formula to compute the amount of damages. Jorgensen v. Gonzales, 14 Utah.2d 330, 383 P.2d 934 (1963). We stated in a slander suit which awarded compensatory and punitive damages:
Prince v. Peterson, Utah, 538 P.2d 1325, 1329 (1975). This Court defers to the jury determination unless a verdict is "so excessive as to be shocking to one's conscience and to clearly indicate passion, prejudice or corruption on the part of the jury." McAfee v. Ogden Union Ry. & Depot Co., 62 Utah. 115, 129, 218 P. 98, 104 (1923).
The award of compensatory damages in this case neither shocks the conscience of this Court nor clearly indicates passion, prejudice or corruption by the jury. Santos not only suffered lost wages and medical and dental expenses which were compensated in the award of $579.89 special damages against Val (or $869.80 against Joe), but he also underwent the pain and suffering of a bruised and battered body and head as well as puffed and bleeding lips and the loss of a patch of hair from his scalp. The fact that the injuries were not more severe makes the pain and suffering no less real. Santos' bruises took a month to heal; his hair did not grow back for several months; he still had pain in performing some of the physical tasks of his employment and was limited in his sports activities at the time of trial. In view of the present cost of living and the diminished purchasing power of the dollar, $9,000 in general damages does not seem excessive. See McAfee v. Ogden Ry. & Depot Co., supra. Additionally, the trial court's indication of his approval by not interfering with the verdict or granting a new trial on his own motion reaffirms our confidence in the jury verdict. See Prince v. Peterson, supra; State Road Commission v. Kendell, 20 Utah.2d 356, 438 P.2d 178 (1968); and Geary v. Cain, 69 Utah. 340, 255 P. 416 (1927).
The $12,000 awarded in punitive damages against Val is another matter. The amount of punitive damages to be awarded is left to the discretion of the jury unless it acts motivated by passion or prejudice.
Some factors to be considered in determining the amount of damages to be awarded are: The particular nature of the defendant's acts, the probability of those acts being repeated in the future, the relative wealth of the defendant, the effect of his misconduct on the lives of the plaintiff and others, the relationship between the parties, the facts and circumstances surrounding the misconduct, and the amount of actual damages awarded. First Security Bank of Utah v. J.B.J. Feedyards, Inc., 653 P.2d 591 (1982) and cases cited therein; Terry v. Zions Cooperative Mercantile Institution, supra. See also Elkington v. Foust, Utah, 618 P.2d 37 (1980); Holdaway v. Hall, 29 Utah.2d 77, 505 P.2d 295 (1973); Monter v. Kratzers Specialty Bread Co., 29 Utah.2d 18, 504 P.2d 40 (1972) regarding the conduct of defendant.
Here, there was evidence against Val that his participation was reprehensible. He not only joined in the first fight with Joe and the others, but he also attacked Santos again after he had been beaten, when he was bleeding and dazed and after the fight had subsided. Even though he was bigger than Santos, had three other big men in his company, and had been trained in ways to control an assailant, Val in his own words, continued, once on top of Santos, to hit Santos anywhere he could since Santos was hitting him. He also kneed Santos in the ribs, hit him in the head and kicked him. While evidence suggested that Joe and the others were also brutal, the evidence against Val, in particular, was substantial. Furthermore, it is reasonable to conclude that the effect of his misconduct contributed in large part to the harm suffered by Santos — some of which, if not permanent in nature appeared to have been prolonged.
Punitive damages should be more than an inconvenience to Val. Their amount should be sufficient to discourage him, or anyone similarly situated, from repeating such conduct in the future. However, the record contains no evidence that his disposable income of $567.05 semi-monthly as a salaried policeman (indicated in the record by a writ of garnishment) was known to the jury. Nor does the record contain any evidence of his assets or net worth which the jury could have considered in determining the amount they would award. In view of that void and the fact that the jury was generous in its award of general damages, we conclude that the punitive damages against Val were excessive and should be reduced to $6,000. This reduction should in no way be taken to condone Val's deplorable actions.
Val also contends that he was made to answer for the acts of all defendants and not just his own. He argues that he has been made to bear a disproportionate amount of the damages which is unfair because he was not the instigator of the fight and because all of the Montoyas were not similarly brought to trial. For authority he relies upon U.C.A., 1953, § 78-27-40(2) which states:
This statute applies to joint tort-feasors' rights of contribution. It does not support
Neither did the trial court misapply joint and several liability as Val contends. U.C.A., 1953, § 78-27-41(1) allows the injured party to collect from the tort-feasors individually for the whole injury as at common law. Val offers no support for his argument that Santos will recover payment for his medical bills and lost wages twice. Santos' concession mentioned above and the law are to the contrary.
Val claims error in being denied a comparative negligence instruction as to the contribution of Santos to his own injury. He cites State in the Interest of M____ S____, Utah, 584 P.2d 914 (1978), and Burrows v. Hawaiian Trust Co., 49 Haw. 351, 417 P.2d 816 (1966) for the proposition that while contributory negligence is not a defense to battery, the plaintiff should act reasonably in defending himself.
It would have been improper to have given jury instructions on comparative negligence and on the plaintiff's contribution to his own injuries in an intentional battery case such as this. Instructions on self-defense and mutual combat were properly given. The jury was allowed to determine the nature of Santos' participation as well as its reasonableness. Taken as a whole, the instructions which were given were proper. There was no error on this point.
REPRESENTATION OF COUNSEL
Val complains that his trial counsel argued in support of Mike's motion for a directed verdict and that his counsel failed to make a motion for a new trial under Rule 59 of the Utah Rules of Civil Procedure. Val argues that this act and omission require that he be granted a new trial. He cites no authority for this proposition — and with good reason. A civil action is not reversed because privately retained counsel was incompetent. If trial counsel was indeed incompetent, then Val may be entitled to seek redress against him in a separate action.
At the close of Santos' case, Mike, acting pro se, moved to have the case against him dismissed. The court took the motion under advisement and did not rule upon it until Mike had testified, the defendants had rested, and the case had been submitted to the jury. While the jury deliberated, the court determined that Santos had not established a prima facie case against Mike. Consequently, it granted a directed verdict and subsequently disregarded the jury's verdict which awarded $289.74 in special damages, $1,000 in general damages and $1,500 in punitive damages against Mike. Santos seeks a new trial against Mike contending that there was evidence presented of his involvement in the fight requiring the question to be submitted to the jury.
In directing a verdict the trial court may not weigh the evidence. Finlayson v. Brady, 121 Utah. 204, 240 P.2d 491 (1952); Utah State Nat. Bank v. Livingston, 69 Utah. 284, 254 P. 781 (1927). Rather, the court must consider the evidence in
As to Mike's participation, Darla testified:
Later in direct testimony she stated:
After testifying that Joe came over to his table with Val, "Monty" and Mike, and that Joe punched him, Santos stated he was hit and kicked and covered up so that he couldn't see who was doing what. He then testified:
Later he testified:
Mike's own testimony placed him among the other Montoyas during the fight. The testimony is not wholly lacking and incapable of reasonable inference that Mike participated in the fight. Rather, the trial record would cause reasonable men to differ as to whether the essential facts were or were not proved. Since the trial judge may
Although he committed error in directing the verdict, the court, in fact, allowed the jury to consider all of the evidence concerning Mike so there is no necessity for a new trial. Consequently, the directed verdict is set aside and Case No. 17646 is remanded with instructions to enter judgment on the verdict against Mike. Judgment against Val in Case No. 17670 is affirmed with the modification of punitive damages to the amount of $6,000. No costs awarded.
HALL, C.J., and STEWART, OAKS and DURHAM, JJ., concur.