Cheney v. Palos Verdes Investment Corp. , 104 Idaho 897 ( 1983 )

SHEPARD, Justice.

This is an appeal from a judgment in an action arising from an oral contract for the care and feeding of a herd of cattle. Appellants assert error in evidentiary rulings, jury instructions and the assessment of punitive damages. We affirm.

Defendants-appellants Florance and Palos Verdes Investment Corporation owned a cattle ranch in Nevada doing business as Bell Brand Ranches, Inc. In April 1979, the ranch manager Segull, because of an insufficiency of hay, contacted plaintiffs-respondents Cheney, seeking to place approximately 800 head of cattle on the Cheneys’ feedlot in Gooding, Idaho. Cheney agreed to board the cattle and feed them a chopped hay and potato slurry ration, in return for which Bell Brand would reimburse Cheney the cost of the feed plus ten cents per head daily for boarding the cattle. Cheney was instructed not to vaccinate the cattle and, because the herd was not to be immunized, it was agreed that Cheney was not responsible for any death loss among the herd.¹

Pursuant to that oral contract, Bell Brand delivered 809 head of cattle to the Cheney feedlot in May 1979. At the delivery time, the cattle were ten to twelve months old and considerable testimony indicated that they were thin and weak for their age. The cattle were started on hay and then later given potatoes, and they appeared to gain weight. In the period from May 31 — June 8, 29 of the animals died of a disease called red nose. Routine vaccination would have prevented the disease, which is a recognized danger to cattle under feedlot conditions. Other than among the animals of the defendants-appellants, the occurrence of red nose at the Cheney feedlot was not above that normally expected.

At the end of May, Cheney billed Bell Brand for the boarding and feeding of the cattle. Florance telephoned Cheney in early June to say that he had mailed a check pursuant to the billing and to direct Cheney to ship the cattle to Nevada. Relying upon Florance’s assurance of payment in the mail, Cheney shipped the cattle to Nevada.

Cheney’s bill for boarding and feeding the cattle was never paid. When Cheney contacted Florance, Florance refused to pay, allegedly stating that he had falsely indicated that the check was in the mail “so I could get the cattle out of your feedlot.” Although Florance denies stating that the check was mailed, and denies lying for the purpose of defeating Cheney’s possessory lien on the cattle without paying the feeding or boarding, Florance does not dispute that nevertheless Cheney’s bill has never been paid.

Cheney filed this action for non-payment and for fraud, alleging that Florance’s wilful and false misrepresentation was made for the purpose of depriving Cheneys of their lien and that the cattle would not have been released but for the fraud of Florance. Cheney sought the amount owed under the contract, together with interest and punitive damages, costs and attorneys’ fees. Defendants-appellants counterclaimed that Cheneys were negligent in caring for the animals, which negligence had allegedly resulted in significant weight loss to the herd and in the death of 28 of the cattle. The jury returned a verdict for the plaintiffs for $27,571 compensatory damages and $25,000 punitive damages and found against the defendants on the counterclaim. Defendants’ motions for judgment n.o.v. and for a new trial were denied.

Upon appeal, defendants-appellants assert error in the admission of plaintiffs’ business records in evidence; the inquiry into defendant Florance’s net worth; the verdict that plaintiffs were not negligent in their care of the cattle; the jury instructions relating to punitive damages; and the amount of punitive damages. Defendants-appellants also assert that plaintiffs were not the real party in interest and hence were not entitled to bring the action.

I. BUSINESS RECORDS EVIDENCE.

At trial, Cheneys’ bookkeeper testified that the potatoes and hay fed to the cattle were weighed and loaded on trucks and that the weights were recorded for defendants’ account on a daily feed sheet. It was regular procedure to determine at month end the total weight of potatoes and hay fed to defendants’ cattle, which total was then charged at the same- rate paid to suppliers of the feed. To that sum was added the “yardage” or boarding fee of ten cents per head per day. Both the daily feed sheets and the end of month summaries were prepared by the bookkeeper. At trial, only the end of month summaries were offered and admitted, since the daily feed sheets had been destroyed.

Defendants-appellants argue that the records were erroneous since, as presented, they reflected the costs of feeding the admittedly dead animals. However, we deem the error to be, at most, inconsequential and affecting only the weight to be given the evidence by the jury. Defendants-appellants also assert that the monthly billings constitute hearsay and do not fall within the business records exception to the general prohibition of out of court statements. We disagree.

The trial court has broad discretion as to the admission of evidence, including business records, and the exercise of that discretion will not be overturned absent the clear showing of abuse. Jensen v. Seigel Mobile Homes, 105 Idaho 189, 668 P.2d 65 (1983); Curiel v. Mingo, 100 Idaho 303, 597 P.2d 26 (1979); Daniel v. Moss, 93 Idaho 612, 469 P.2d 50 (1970). I.C. § 9 — 414 codifies the business record exception to the hearsay rule, stating:

“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to the identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The legislative intent requires that the business record exception be broadly construed. Curiel v. Mingo, supra; Daniel v. Moss, supra; John Snowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955); Henderson v. Allis-Chalmers, 65 Idaho 570, 149 P.2d 133 (1944).

It was held in Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964), that business records possessing a reasonable degree of necessity and trustworthiness ought to be received in evidence, unless the trial court, after examining them and hearing their manner of preparation, has serious doubt as to their reliability. Accord Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968).

In Curiel v. Mingo, supra, a ledger sheet indicating the use of fuel was admitted, although it was not the original source, but rather an accountant’s summary, of statements provided regularly by a fuel company. See also Daniel v. Moss, supra; Hammond v. Hammond, supra. The account records here were made in the ordinary course of plaintiffs’ business and not in preparation for trial and we hold that the trial court did not err in admitting those records.

We note, in passing, the evidence offered as to whether the cattle could have consumed as much feed as is reflected in the records, given the herd’s alleged meager weight gain and poor condition upon shipping from the feedlot. That testimony was conflicting. A resolution thereof was for the jury and we find no error in the jury’s determination of that conflict.

II. NEGLIGENCE OF PLAINTIFFS.

It was defendants’ contention at trial that Cheneys, as bailees for hire, had the burden of proving their freedom from negligence when they failed to return the bailed property (the animals which had died) to the owner. Compton v. Daniels, 98 Idaho 915, 575 P.2d 1303 (1978); Lowe v. Park Price Co., 95 Idaho 91, 503 P.2d 291 (1972). The trial judge, over the argument of Cheneys, agreed, and he instructed the jury that under such circumstances a presumption of negligence existed. The defendants-appellants argue here that the record does not support a finding that plaintiffs met that burden of proof. We disagree. Negligence or the lack thereof is a matter for determination of a jury, Nelson v. Hawkes, 104 Idaho 185, 657 P.2d 482 (1983); Robinson v. Westover, 101 Idaho 766, 620 P.2d 1096 (1980), and the record demonstrates ample evidence from which the jury could determine that Cheneys were not negligent.

Cheneys offered sufficient and indeed compelling testimony that cattle in feedlots are more susceptible to disease, specifically to red nose, and that the standard and-prudent precaution taken by cattle owners is to vaccinate cattle upon entry into a feedlot. It is not disputed, and indeed Se-gull, the ranch manager of Bell Brand, testified, that Segull instructed Cheney not to vaccinate the cattle and that the agreement between Cheney and Segull provided that Cheney would not “stand any death loss,” because of the greatly increased risk in accepting cattle that were not immunized. As above noted, the evidence supports the conclusion that the cattle died of red nose and that the otherwise existence of red nose in the feedlot was not more than normally expected. This evidence, combined with the dangers of red nose in a feedlot and the instructions of Segull not to immunize, supports the jury verdict that Cheneys had exercised due care and were not negligent.

Although there was evidence on behalf of defendants-appellants that the cattle were “green,” i.e., thin, weak and razor-backed, when shipped from the feedlot to the Bell Brand Ranch, Cheneys presented evidence that the cattle were healthy as compared to their condition upon arrival at the feedlot. Cheneys’ evidence also indicated that the cattle were adequately fed and cared for in prevention of illness and injury. That evidence, being somewhat in conflict, was for the resolution of the jury and we find no error in the jury’s determination thereof.

III. EVIDENCE OF DEFENDANTS’ NET WORTH.

Defendants-appellants assert that the trial court erred in permitting defendant Florance to be questioned regarding his net worth. That questioning is revealed by the record as follows:

“Q. (By Mr. Risch) Would you tell this jury your net worth please?

A. To be totally frank with you, I really don’t know. I can give you an approximate idea, but I don’t know for sure.

Q. That’s what I am asking.

A. It’s in excess of one hundred thousand dollars.

Q. What does that consist of?

MR. LEZAMIZ: Your Honor, same objection.

THE COURT: Well, now the Defendant — the witness has answered that he doesn’t know, so now I think we have broadened it so I think that counsel is entitled to inquire further. Objection overruled.”

A discussion then ensued between Florance and the trial judge wherein Florance vehemently argued he should not be made to answer and that he did not know the value of his assets. Thereafter, Florance testified to owning assets worth approximately three million dollars.

It is axiomatic that ordinarily the wealth or lack thereof of a party is irrelevant as to any of the issues to be determined by the fact finder. However, this Court in Cox v. Stolworthy, 94 Idaho 683, at 690-91, 496 P.2d 682, at 689-690 (1972), held that evidence of wealth may be admissible in an action seeking punitive damages if the court is cautious to prevent jury passion as a result thereof. It was stated in Cox:

“Setting an absolute limit on an award does not satisfy the requirement of providing the trier of the facts with objective criteria which it may use in setting a reasonable award. One guideline was mentioned in Dwyer v. Libert, 30 Idaho 576, 167 P. 651 (1917), a libel action. The Court stated that a jury may consider evidence of the wealth of a defendant in deliberations on exemplary damages. Restatement of Torts § 908(2) is in accord with this view. So are Wetherbee v. United Ins. Co. of Am., 18 Cal.App.3d 266, 95 Cal.Rptr. 678 (1971); Joab, Inc. v. Thrall, 245 So.2d 291 (Fla.App.1971); State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo.1966); Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151 (1965); Dalton v. Meister, 22 Wis.2d 173, 188 N.W.2d 494 (1971).

“We are mindful, however, of the criticism that has been leveled against the use of such evidence of a defendant’s wealth. Dissenting opinion of Ailshie, J., in Summerfield v. Pringle [65 Idaho 300, 144 P.2d 214 (1943)] supra; Hodel, ‘Exemplary Damages in Oregon,’ 44 Ore.L.R. 175, 189-193. These thoughtful warnings may be utilized. Evidence as to a defendant’s wealth may only be offered for the limited purpose of determining the efficacy of a money judgment in deterring future tortious conduct. The materiality of such evidence would be questionable, of course, if the evidence at that point had not reasonably established the malicious and wilful character of defendant’s conduct. And we add that the absolute limits of an exemplary damages award depend on criteria other than defendant’s wealth.” (Emphasis added.)

See also Dwyer v. Libert, 30 Idaho 576, 167 P. 651 (1917).

Since such evidence was admissible, the only remaining question is whether the Court here was sufficiently cautious to prevent such evidence from engendering passion and prejudice by the jury. The trial court during an in-chambers colloquy stated: “I would, though, in making this ruling [that inquiry may be made as to defendant’s wealth] and permitting counsel for the plaintiff to inquire, would suggest that it’s not necessary to go into any details. And I think one or two general questions can be placed.” Hence, the trial court sought to limit the line of questioning and its impact on the jury. We note, however, that it was Florance’s own demeanor on the stand which perhaps served to accentuate the issue of his wealth, because of what could be termed evasive and misleading answers to the questions propounded to him. We find no error in the admission of the testimony and no indication that the jury’s $25,000 punitive damages award resulted from passion or prejudice engendered by the wealth of defendant Florance.

IV. PUNITIVE DAMAGES.

Defendants-appellants contend as to the punitive damage issue that the trial court erred in failing to follow the standards first set forth in Cox v. Stolworthy, 94 Idaho 683, 496 P.2d 682 (1972), and expanded upon in a later series of decisions regarding the propriety and measure of punitive damages in certain specified categories of cases. See, e.g., Jolley v. Puregro Co., 94 Idaho 702, 496 P.2d 939 (1972); Thompson v. Dalton, 95 Idaho 785, 520 P.2d 240 (1974); Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980); Linscott v. Rainier Nat’l Life Insurance Co., 100 Idaho 854, 606 P.2d 958 (1980); Yacht Club Sales and Service, Inc: v. First Nat’l Bank of North Idaho, 101 Idaho 852, 623 P.2d 464 (1980). As will be developed infra, we hold that the instructions, the verdict, the orders of the trial judge, and the judgment were proper.

Defendants-appellants’ argument is grounded in the refusal of the trial court to instruct the jury specifically on the holdings of Cox v. Stolworthy, supra, and Linscott v. Rainier, supra, and in its refusal to reduce the award of punitive damages found by the jury or to grant a new trial. It is argued that $25,000 found as punitive damages resulting from a private contractual dispute, where the compensatory damages were found to be only $27,571, is excessive, not only on the facts of the case but also as a matter of law and can only be attributable to the passion and prejudice of the jury. We disagree. And because we hold that the measure of compensatory damages as outlined in Cox is impractical, overly demanding, and inconsistent with law as it relates to other damages, Cox v. Stolworthy, supra, is hence erroneous and is hereby in part overruled.

In Cox, the court devised a system for determining the amount of punitive damages which might be awarded in any given case. Exemplary damages were divided into three major categories. Category one included deceptive business schemes harmful to the general consuming public, such as false advertising or fraudulent sales tactics (see, e.g., Boise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P.2d 551 (1969)). Category two involved endangerment of the physical well-being or health of members of the general public (see, e.g., Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969)). Category three included private business disputes between contracting parties who are of equal knowledge and bargaining power (see, e.g., Cox v. Stolworthy, supra). It was held in Cox that a general award of punitive damages was justified in only the first two categories. In cases arising thereafter, the Court attempted to fit various factual situations into one of the three delineated categories. Those efforts were often without success, or if successful, achieved in an unconvincing manner. In Jolley v. Puregro Co., 94 Idaho 702, 496 P.2d 939 (1972), for example, there was involved the conversion of farm machinery by means of a wrongful foreclosure on collateral. Although the case clearly involved a private business dispute, we, for reasons which the unkind or critical might call convenience, held the existence of an element of consumer fraud and classified the matter under category one of the Cox scheme. Yet, in Linscott v. Rainier Nat’l Life Insurance Co., 100 Idaho 854, 606 P.2d 958 (1980), we found that an insurance company’s failing to make payment on a meritorious claim did not indicate an intent to take advantage of the consuming public under case type one or two, and we rather categorized the matter as a private business dispute under category three of the Cox scheme. Hence, punitive damages in Linscott were to be limited, and we reduced the punitive damage award of the trial court. As articulately expressed by Bakes, J., in Jolley v. Puregro Co.:

“The difficulty with these standards is that they provide no definable objective guidelines for determining what is a reasonable exemplary damages award; the standards appear to serve merely as manipulative vehicles by which the reviewing court can substitute its viscerally-dictated judgment for that of the trier of fact. See generally Summerfield v. Pringle, 65 Idaho 300, 316 et seq., 144 P.2d 214, 222 et seq. (1943) (J. Ailshie, dissenting); Note, ‘Exemplary Damages in the Law of Torts,’ 70 Harv.L.R. 517, 529-531 (1957).” Jolley v. Puregro Co., supra, 94 Idaho at 709, 496 P.2d at 946.

See also Thompson v. Dalton, supra.

' We now hold that attempting to fit infinitely varied fact situations involving punitive damages into the overly simplified and restricted categories set forth in Cox has been demonstrated to be at best unworkable and at worst impossible. In both Linscott, supra, and Thompson v. Dalton, supra, we noted the possibility of “other similar situations in which aggravating and dire circumstances necessitate the departure from the general rule of exemplary damages in Cox v. Stolworthy.” We now take the final step of overruling and discarding the Cox approach of forcing all fact situations into one of the three categories set forth in Cox.

We hold that punitive damage awards are in the first instance a jury decision, subject to the trial court’s authority to modify or overturn that jury verdict as a matter of law. Such is no novel approach to the appellate treatment of a damage issue. See Boise Dodge, supra; Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); Horn v. Boise City Canal Co., 7 Idaho 640, 65 P. 145 (1901); I.R.C.P. 59(a)(5). We have consistently held that “[pjunitive damages are by their very nature incapable of definite ascertainment and cannot be governed or measured by any precise standards.” Cox v. Stolworthy, supra, 94 Idaho at 688, 496 P.2d at 687; Prudential Federal Savings & Loan Ass’n v. Johnson, 93 Idaho 850, 476 P.2d 786 (1970). “Thus, the true basis for an award of one amount of punitive damages as opposed to another amount lies in an overall appraisal of the circumstances of the case.” Boise Dodge, supra, 92 Idaho at 908, 453 P.2d at 557.

We deem that an award for exemplary damages should be left first to the determination of the trier of the fact. A judge or jury should not be hampered with strictly construed schemes or rules which inappropriately require the forcing of many-faceted fact patterns into neat pigeonholes or compartments. Such deference to the trial court is consistent with the appellate overview of compensatory damages. It is clear that a trial judge exercises authority over jury awards of compensatory damages by acting substantially as a thirteenth juror. Deshazer v. Thompkins, 93 Idaho 267, 460 P.2d 402 (1969); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967). The trial judge has authority to order a new trial if in his judgment damages are excessive or inadequate. Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979); Fignani v. City of Lewiston, 94 Idaho 196, 484 P.2d 1036 (1971); Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539 (1965); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717 (1943). Alternatively, a trial judge may peremptorily reduce an excessive jury award, order remittiturs of damages, or condition a denial of new trial on the acceptance of an additur or remittitur. Nichols v. Sonneman, 91 Idaho 199, 418 P.2d 562 (1966); McCandless v. Kramer, 76 Idaho 516, 286 P.2d 334 (1955); Checketts v. Bowman, supra. Cf. Ryals v. Broadbent Dev. Co., 98 Idaho 392, 565 P.2d 982 (1977). Since trial judges have traditionally been granted wide discretion in reviewing jury awards in the area of compensatory damages, it is entirely appropriate that we entrust to the trial judge a similar authority and discretion in the matter of punitive damages. As stated in Dinneen v. Finch, 100 Idaho 620, 624, 603 P.2d 575, 579 (1979), quoting Mendenhall v. MacGregor Triangle Co., 83 Idaho 145, 358 P.2d 860 (1961); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); and Bond v. United Railroads, 159 Cal. 270, 113 P. 366 (1911):

“The remedy for excessive verdicts rests largely with the trial judge, whose duty it is to carefully weigh the evidence and not allow a verdict to stand for a greater amount than the evidence will reasonably justify. (Emphasis in original.)

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“Practically, the trial court must bear the whole responsibility in every case.”

While no concrete formula for an award of punitive damages will control, the discretion of the trial judge will continue to be exercised within the general advisory guidelines laid down by this Court in the past. Mindful of the purpose of punitive damage awards, we note that they are not favored in the law and therefore should be awarded only in the most unusual and compelling circumstances. They are to be awarded cautiously and within narrow limits. Hatfield v. Max Rouse & Sons Northwest, supra; Jolley v. Puregro, supra. See also Yacht Club Sales & Service, Inc., supra; Jolley, supra; Linscott, supra; Cox, supra, as holding that the policy behind, punitive damages is deterrence rather than punishment. An award of punitive damages will be sustained on appeal only when it is shown that the defendant acted in a manner that was “an extreme deviation from reasonable standards of conduct, and that the act was performed by the defendant with an understanding of or disregard for its likely consequences.” Hatfield v. Max Rouse & Sons Northwest, supra, 100 Idaho at 851, 606 P.2d at 955. See Linscott, supra. The justification for punitive damages must be that the defendant acted with an extremely harmful state of mind, whether that state be termed “malice, oppression, fraud or gross negligence” (Morrison v. Quality Produce, Inc., 92 Idaho 448, 444 P.2d 409 (1968)); “malice, oppression, wantonness” (Klam v. Koppel, 63 Idaho 171, 118 P.2d 729 (1941)); or simply “deliberate or willful” (White v. Doney, 82 Idaho 217, 351 P.2d 380 (1960)). See generally, Linscott, supra, 100 Idaho at 858, 606 P.2d at 962; Thompson v. Dalton, 95 Idaho 785, 788, 520 P.2d 240, 243 (1974).

Although Boise Dodge, supra, involved a “far-flung fraudulent scheme, systematically conducted for profit,” the language therein quoted from Walker v. Shelton, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497 (1961), appears highly appropriate in a case such as the one at bar:

“Exemplary damages are more likely to serve their desired purpose of deterring similar conduct in a fraud case, such as that before us, than in any other area of tort. One who acts out of anger or hate, for instance, in committing assault or libel, is not likely to be deterred by the fear of punitive damages. On the other hand, those who deliberately and cooly engage in a far-flung fraudulent scheme, systematically conducted for profit, are very much more likely to pause and consider the consequences if they have to pay more than the actual loss suffered by an individual plaintiff. An occasional award of compensatory damages against such parties would have little deterrent effect. A judgment simply for compensatory damages would require the offender to do no more than return the money which he had taken from the plaintiff. In the calculation of his expected profits, the wrongdoer is likely to allow for a certain amount of money which will have to be returned to those victims who object too vigorously, and he will be perfectly content to bear the additional cost of litigation as the price for continuing his illicit business. It stands to reason that the chances of deterring him are materially increased by subjecting him to the payment of punitive damages.” Boise Dodge, supra, 92 Idaho at 909, 453 P.2d at 558.

Since we hold that the issue of an alleged excessive award of punitive damages is largely within the discretion of the trial judge, we now examine whether that discretion was properly exercised in the instant case, wherein the trial judge refused to grant a judgment n.o.v. or a new trial. We hold that sufficient evidence was placed before the jury to raise the questions of defendants’ malice and of whether an award of punitive damages would serve as a deterrent to similar future conduct. The jury could have reasonably determined that Florance wantonly and maliciously deprived Cheneys of their possessory lien on the cattle,'in disregard of the rights of the Cheneys and in order to be unjustly enriched by the Cheneys’ labor. The jury could have concluded that Florance deliberately and fraudulently misrepresented to Cheney that payment had been made.

Cheneys have alleged as error the trial court’s refusal to admit evidence of other private contractual dealings of defendants-appellants, which evidence they argue would help them to satisfy the category one or category two requirements of Cox, supra. In view of our decision herein, we find it unnecessary to resolve that question. We have examined defendants-appellants’ other assertions of error and find them to be without merit.

' The judgment of the trial court is affirmed. Costs to respondents. No attorneys’ fees allowed.

BISTLINE and HUNTLEY, JJ., concur.

1 . Segull was evidently discharged from his employment at Bell Brand because of the contract and disputes between the parties. His testimony at trial resulted in much of the evidence being substantially uncontroverted in a situation which ordinarily would be hotly contested.