Van Lom v. Schneiderman , 187 Or. 89 ( 1949 )

I shall first state the extent of my concurrence and then set forth the limits and grounds of my dissent. On the facts I agree that there is no evidence that the plaintiff was seriously injured and I concur in the conclusion that the verdict of $10,000 is excessive in respect both to compensatory and punitive awards. With considerably less confidence I agree that it is not sufficiently established in this case that the verdict was the product of passion and prejudice. I welcome the decision of the majority to examine anew the question of the power of both circuit and supreme courts to grant new trials. In this case we are concerned with the construction of the following portion of the constitutional amendment which was adopted by the people of Oregon in 1910:

"In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and 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. * * *" Constitution of Oregon, Article VII, Section 3.

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. Shainv. 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 AccidentCommission, 143 Or. 627, 23 P.2d 534. In view of these established principles, grounded as they are upon American-Anglo common law, we should not lightly adopt a construction of the 1910 amendment which would emasculate the judicial power beyond the necessary implication of the words used nor should such amendment receive a construction which would place it in conflict with the due process clause of the federal constitution or the equivalent provisions of our own constitution.

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. MultnomahCounty 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. Adcockv. Oregon Railroad Co., 45 Or. 173, 77 P. 78, Hust v.Moore-McCormack Lines, Inc., 180 Or. 409, 436, 177 P.2d 429.

Confining the issue, for the moment, to the class of cases just discussed in which there is an excessive award of compensatory damages but no finding of passion or prejudice, I concur in the conclusion of the majority to the effect that the constitutional amendment has deprived the trial courts of their former power to require a remittitur or to grant a new trial because of such excessiveness, and I agree that this court is also forbidden to take like action. If we are to recognize the clear intent of the constitutional amendment to restrict trial courts from exercising powers previously possessed, then we must at least accord to the amendment the effect indicated. It may be said that it is unthinkable that a party should be awarded damages in a sum which is clearly more than that to which he is entitled under the facts and the law, but the question is; in whom has the constitution vested the power to decide the amount to which a litigant may be entitled. In this case the constitution has unwisely, as I believe, vested the ultimate power of determination in the jury and not in any court.

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, but it affirmatively states that the mandate of Article VII, Section 3 "is transgressed every time that a court undertakes to revise or correct a jury's finding of fact (unless this be done by the Supreme Court where there is error in the record * * *)." The opinion continues, "All that the court may do, so far as the facts are concerned, is to examine the record to determine whether it ``can affirmatively say there is no evidence to support the verdict'." Since the majority has elected to examine the question anew, it should not, in my opinion, add the weight of its approval to a rule, whether found in dicta or in ratio decedendi which would deny to every court the power to do justice when it clearly appears that a jury has been moved to render its decision under the influence of passion or prejudice. I shall not burden the record with extended discussion of this question, because, notwithstanding the broad language of the majority opinion, the question as to the effect of passion and prejudice is not before us in this case. I shall merely state in outline my views.

The statute, which is only declaratory of the common law, sets forth among the grounds for the granting of a new trial:

"(1) Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;

"* * *

"(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, or that it is against law;" O.C.L.A., Section 5-802.

Prior to the 1910 amendment new trials were granted, either on account of excessive damages given under the influence of passion or prejudice, (subsection 5), or on account of the insufficiency of the evidence to justify the verdict, but the distinction between cases arising under subsections 5 and 6 was of the essence. In an opinion by Chief Justice Robert S. Bean this court said:

"It is contended, however, that in this case the court could not have required the plaintiff to remit one half of the verdict in her favor, except upon the theory that the jury were influenced by passion and prejudice. If such had been the view entertained by the court, the proper practice would undoubtedly have been to grant a new trial, as the part of the verdict allowed to stand would have been as much tainted by passion and prejudice as that which was remitted. Where the damages assessed are excessive, in the opinion of the trial court, or not justified by the evidence, the error may in many cases be obviated by remitting the excess; but, where it clearly appears that the jury were influenced by passion or prejudice, the error cannot be cured by merely remitting a part of the verdict, but it must be entirely rejected, since the effect is to cast suspicion on the conduct of the jury and their entire findings: Safford v. Pawtucket Haircloth Co. 2 Cliff. 82 (Fed. Cas. No. 13,275); Lowenthal v. Streng, 90 Ill. 74; Chicago N.W.R. Co. v. Cummings, 20 Ill. App. 333; Steinbuchel v. Wright, 43 Kan. 307 (23 P. 560)."

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 in substance that the parties had received a fair trial though the verdict was not supported by the evidence. The verdict, as such, was therefore upheld, although a remittitur was required as a condition for the upholding. In cases under subsection 5 a remittitur was deemed impossible because passion and prejudice vitiates the entire proceeding. In cases of that sort the parties never had a fair trial and so it was held that the only remedy was a trial before a new and impartial jury. The vital question in such cases was not whether the verdict was too large, but whether there had been the substance of fair trial. The protection of the constitutional right to a fair trial has always been the function of the judiciary. As said by this court:

"* * * plaintiffs are entitled to a fair and full hearing on the merits as to these allegations. To deny them this right would be to deprive them of the constitutional guaranty that ``every man shall have remedy by due course of law for injury done him in his person, property or reputation'." Carter v. La Dee Logging Co., 142 Or. 439, 459.

To the same effect was the holding in Cicrich v. StateIndustrial Accident Commission, 143 Or. 627, 23 P.2d 534. In that case the court said:

"It is no infringement on the province of the jury for a trial court, in the exercise of its legal discretion, if it believes that on account of an error of law or for any cogent reason a party has not had a fair and impartial trial, to grant a new trial and again submit the issues of fact to a jury. The constitution, as amended in 1910, was never intended to prevent this."

Reference to the first subsection of O.C.L.A., 5-802 shows that new trials may be ordered in the event of:

"(1) Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;"

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 against the weight of the evidence, though not induced by passion or prejudice, and that therefore the trial court could, in its discretion have done so in this case. I think there will be no disagreement on this point, but the majority holds that there is no valid distinction so far as the present question is concerned between compensatory and exemplary damages. I suggest that there is a very real distinction and one which renders the provisions of the first sentence of Article VII, Section 3 inapplicable to punitive damages, leaving them subject to such control by the trial court as was exercised prior to 1910. We find no discussion in any previous case concerning the effect of Article VII, Section 3 upon the power of the court to deal with excessive punitive damages. The question is a novel one.

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 near as may be, of the injuries suffered. The yardstick is compensation. They may award only such damages as are found to have been proximately caused by the act of the wrongdoer and only such as are established by the evidence. This court recently said:

"* * * As a general rule, compensation in money must be fixed according to some standard which will admeasure the loss in terms of pecuniary value, if this can be done, and the measure applied must be a real and tangible one. 17 C.J., Damages, section 166C; 25 C.J.S., Damages, section 71. We think that the value of the time consumed and expenses involved herein were matters that were susceptible of proof within a reasonable degree of certainty. The court cannot base an award of damages upon mere speculation, conjecture, or surmise. Porter Const. Co. v. Berry, 136 Or. 80, 93, 298 P. 179; 15 Am.Jur., Damages, section 23 * * * Beisell et ux v. Wood et ux., 182 Or. 66, 185 P.2d 570.

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.

The case of punitive damages is essentially different. The existence of malice is a fact and one to be found by the jury, but having found malice, the jury has a discretion wholly different in character from that which its exercises in assessing compensatory damages. A litigant may allege and prove malice and pray for punitive damages, yet, as the majority states, the jury has entire discretion to refrain from giving any punitive damages though all the elements of malicious and damaging misconduct may have been established. Again, if the jury elects to award such damages, the amount which may be assessed is unlimited unless the trial court has the power which is denied by the majority opinion. The elements of compensation and of proximate cause are irrelevant. The rule forbidding speculative damages does not apply. In place of the common law rules concerning the measure of compensatory damages as proven by the evidence, this court has defined the function of the jury concerning punitive damages in terms of almost unbridled discretion. Such rule as there is authorizes and requires the jury to act upon broad issues of public policy outside of and beyond the evidence.

"* * * Exemplary, punitive or vindictive damages involves the blending of the interests of society in general with those of the aggrieved individual in particular. The generally accepted doctrine is that such damages are awarded by way of punishment to the offender and as a warning to others, or, according to some authorities, by way of example: 17 C.J. 968, Section 268." Martin v. Cambas, 134 Or. 257, 261.

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 purely discretionary power to impose punishment, a power, which is limited by the statutory maximum sentence which may be imposed. In the same manner the jury, in determining whether to assess punitive damages and in what amount, exercises a purely discretionary power based upon the facts which it has already found, a power which resembles that of the trial judge, except for the fact that his discretion is limited by statute whereas their's is without limit unless the court imposes one. Subsection 1 of O.C.L.A., 5-802 which has never been modified by Article VII, Section 3 authorizes the granting of a new trial for "Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;" That section is applicable here.

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 others should be deemed a fact tried by the jury or protected from the wise exercise of common law powers by trial courts which powers are possessed, so far as I know, in every state of the union except Oregon.

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.