Vasconcellos v. Juarez , 1946 Haw. LEXIS 15 ( 1946 )

After trial in the lower court of a tort action for personal injuries which appellee brought against the appellant by a complaint which prays for damages in the total sum of ten thousand dollars (five thousand as general and five thousand as punitive), the jury rendered verdict in favor of appellee, assessing damages at four thousand dollars and designating three thousand five hundred thereof as general and five hundred as punitive. The appellant excepted to the verdict. He moved the trial judge to set the verdict aside and grant a new trial, which was denied, appellant excepting to the denial. Both exceptions as well as the motion were made on the same ground, i.e., that the amount of four thousand is excessive. Pertinent only to the monetary extent of the verdict, he appeals to this court on the ground upon which he based his exceptions and motion below, the sole error alleged and relied upon in his bill of exceptions being that the jury awarded damages in an excessive amount.

The power of this court to disturb a verdict on the ground of excessive damages is one which should be exercised with great caution and discretion, the duty of guarding against excessive verdicts necessarily resting to a large extent with the trial judge and a reviewing court giving great weight to the trial judge's approval of the verdict. Consequently it ordinarily will not do so where, as here, the trial judge has tacitly approved the verdict as not being excessive and no charge is made of abuse of judicial discretion. Nor will it do so where, as in this case, the record shows (1) that presumably the issue of damages was fairly presented under proper instructions, there being an absence of anything to the contrary; (2) that although the evidence on such issue is in conflict, the appellant does not contend, except by implication, that no part thereof sustains the verdict nor that the conflict may not be determined in support thereof; and (3) that each amount of damages awarded is concededly within the allegations of the complaint. Without more this preliminary survey of the record and position taken on appeal by the appellant, coupled with the very manner in which appellate power to disturb on the ground of excessive damages should be exercised, indicates that the instant verdict on review would not be subject to appellate interference but rather deemed conclusive. Nevertheless, despite such indication and the apparent improper presentation of the question by the appellant, a useful purpose would be served by a full consideration of the question as well as its presentation.

Controlling the question of excessive damages is the general rule of law, well settled in this jurisdiction, that a finding of an amount of damages is so much within the exclusive province of the jury that it will not be disturbed on appellate review unless palpably not supported by the evidence, or so excessive and outrageous when considered with the circumstances of the case as to demonstrate that the jury in assessing damages acted against rules of law or suffered their passions or prejudices to mislead them. (Ward v. I.-I.S.N. Co., 22 Haw. 488; Tsuruoka v.Lukens, 32 Haw. 263.)

Applying the principles of this rule to the record in order to test whether the qualifications of the rule have been met, this court will resolve the conflict in the evidence in favor of the jury's award and to that end give the evidence the strongest probative force it will admit. Pursuant thereto, it is found as a matter of law that the evidence would warrant findings by a trier of fact that the tortious acts of the appellant against the appellee constituting the basis of appellee's cause of action (the commission of which the appellant in effect concedes by attacking merely the size of appellee's recovery) were intentional, willful and malicious; that they consisted of an unprovoked and brutal beating of the aging fifty-nine-year-old appellee by the thirty-six-year-old appellant in the prime of life; that such tortious acts proximately caused appellee's entire body to be bruised, his nose to be broken, both eyes to be blacked and closed, his upper right cheek to be gashed, the muscle holding his right eye in place to protrude and his right eye to be pushed from its socket, the direct consequences of all of which being that appellee was rendered groggy and helpless and made to suffer extreme pain and anguish. The susceptibility of the evidence to such findings, relative to the severity and multiple character of the temporary injuries and the circumstances under which they were sustained, as well as the consequences immediately resulting therefrom, belies the existence of a state of record manifesting either an insubstantiation of the evidence to the jury's estimate of the damages or shockingly disproportionate amounts that would tend to render the jury's award suspect or due to improper or corrupt causes. On the contrary, there is manifested ample evidentiary support to the award by a state of record consistent with the presumption that the jury properly weighed the evidence and arrived at a just measure of compensation in accordance with substantive law thereto pertaining, it being our opinion that on such findings of temporary injuries and the concomitants thereof without the necessity of further finding that any permanent ones were subsequently sustained within the chain of proximate causation, reasonable men could come to the conclusion that appellee is entitled to three thousand five hundred dollars in general damages and five hundred in punitive. The verdict therefore is not excessive as a matter of law and it is apparent therefrom that neither of the rule's qualifications warranting appellate interference has been met. Hence the rule itself applies and the verdict on review will not be disturbed.

The appellant points to a certain portion of the evidence, which is undisputed, that appellee's right eye became permanently blind eighteen months after the commission of appellant's tortious acts. He argues that such portion of the evidence is immaterial to the issue of damages and should never have been either admitted or submitted to the jury who by reason thereof improperly may have considered the permanent blindness as an element of damages and thus rendered a larger award than otherwise. He premises this argument of immateriality upon two grounds, one being that permanent blindness as an element of damages is not within any of the complaint's allegations which admittedly are all of a general nature and the other that there is an insufficiency of proof that his tortious acts proximately caused the blindness. The record, however, militates against the making of such an argument by the appellant. At his instance there was filed thirteen months before trial a bill of particulars which alleged that "as the direct result and consequence" of appellant's tortious acts the appellee's "right vision was impaired" so that he "will continue to suffer impairment of his vision and ultimately become blind." Without amendment of the complaint, the trial was conducted by the trial judge and both parties on the theory that permanent blindness of appellee's right eye constituted an element of appellee's damages. Evidence was introduced thereon and instructions given covering it, the appellant not objecting thereto nor making any motion to strike. On the contrary, he introduced a part of such evidence and consented to the instructions. Upon this state of the record appellant will not be heard on appeal to complain for the first time against the theory of trial and the presenting of the issue of damages in which he acquiesced and participated, nor need this court decide as a matter of law whether the bill of particulars not merely amplified the allegations of the complaint but enlarged appellee's cause of action, whether the evidence of permanent blindness could have been rejected or whether such evidence after being admitted was subject to being stricken because of insufficient proof of proximate causation, even though in our opinion the evidence is conflicting that appellant's tortious acts proximately caused appellee's permanent blindness.

Nevertheless, assuming arguendo but not deciding that the argument of immateriality to the issue of damages is sound on both of appellant's grounds, it does not necessarily follow that the position predicated upon it and taken by appellant on appeal against the verdict would be tenable. This is evidenced by the appellant's stand in taking such position. Indicative of further lack of efficacy in his appeal by failing to present properly the question of excessive damages, the appellant does not specifically urge the applicability of the rule's qualifications warranting appellate interference. Neither does he argue that consideration of the evidence of permanent blindness to be within the chain of proximate causation was necessary as a matter of law to the ultimate result reached by the jury, that in the absence of such consideration the remainder of the evidence would not support the verdict rendered, nor that the amount awarded would be outrageously disproportionate when considered with the circumstances established thereby. He rather argues in the main as to how the jury may have considered only a portion of the evidence and what may have been the possible effect thereof upon the size of their award. He thus directs his argument to collateral matters of pure conjecture outside the realm of appellate concern in determining the question of excessive damages and extraneous to the application of the rule against appellate interference. Appellant's position relative to an excessive verdict is therefore untenable and the verdict conclusive, aside from any merit in his argument and the grounds thereof upon which such position is based and considerations in the record opposing the urging of such argument on the grounds stated.

Exceptions overruled.