Geary v. Cain , 69 Utah 340 ( 1927 )

This is an action to recover damages for numerous alleged assaults by the defendant upon the person of plaintiff alleged to have occurred in Salt Lake City, Utah, on and between July 14 and December 5, 1924.

The complaint, in substance, alleges that during all of said times plaintiff resided in the Kelvin Apartments, in said city; that on July 14, 1924, defendant wrongfully, unlawfully, and maliciously assaulted, beat, maltreated, abused, and indecently assaulted her; that he then and there seized and grabbed plaintiff and violently took hold of her person and pushed her violently against the casing of the bathroom door in the apartment below plaintiff's said home, and violently seized and laid hold of her breasts and person and squeezed and maltreated the same, and then and there said, "I have a fine set of tools and no place to use them; you've got to be mine; you've got to come through;" and then and there endeavored to force and compel plaintiff to have sexual intercourse with defendant. Similar acts on the part of defendant are alleged in the complaint as having occurred on August 10, 1924, with the addition that on that occasion defendant "laid hold" of her privates and said, "when are you going to do as I want you to do?" With intent then and there to compel plaintiff to submit to and have sexual intercourse with the defendant. Similar acts on the part of defendant are alleged to have occurred on October 16, 1924, while plaintiff was still suffering physically and mentally from the aforesaid wrongful acts of the defendant, and in addition it is alleged that on that occasion defendant wrongfully, unlawfully, and maliciously seized and laid hold of plaintiff and her said person and ran his hand down the neck of her dress and seized and laid hold of her breast and squeezed it with such force and violence and caused her such pain and suffering, mentally and physically, that plaintiff was thereby prostrated, and that she fainted and fell to the floor and was obliged to and did take to her bed because of such injuries. Similar conduct on the part of defendant with similar results to plaintiff is alleged to have occurred on December 5, 1924. All of the aforesaid acts of defendant are alleged in the complaint as having been committed without plaintiff's consent and against her will. Finally, it is alleged in the complaint, that prior to said wrongs and injuries plaintiff enjoyed good health and was free from insomnia, hideous and disturbing dreams, and other nervous complaints, but that by reason of said wrongs and injuries plaintiff was confined to her bed continually for a period of seven weeks, and was obliged to and did employ physicians and nurses to care for her during said time. It is also alleged that by reason of said wrongs and injuries she has suffered and been caused great mental and physical pain, and has been made sick, sore, and lame in her body, and particularly in her chest and breasts, to such an extent as to render her permanently injured, as she is informed and believes, and therefore alleges, that her nervous system has been so badly shocked, impaired, and injured thereby as to render it impossible for her to sleep at night, and she has thereby been caused to have hideous dreams and nightmares, and has been broken in her health and strength, and upon her information and belief alleges that said injuries will be permanent. In addition to expenses incurred for medical treatment and nurse hire, plaintiff prays for damages in the sum of $25,000.

Defendant, by way of answer to the complaint, denies each and every allegation thereof.

The jury, to whom the case was tried, rendered a verdict for the plaintiff in the sum of $15,000, as actual damages, and $5,000, as exemplary damages.

Defendant moved for a new trial on numerous grounds, among others that the damages were excessive, appearing to have been given under the influence of passion or prejudice.

The court entered an order that the damages be reduced to the sum of $10,000, but allowed plaintiff in addition thereto, for actual expenditures, a sum not exceeding $500. In the event plaintiff refused to allow said reduction, defendant would be granted a new trial. Plaintiff consented to the reduction; defendant's motion for a new trial was denied, and judgment was thereupon entered for $10,410. Defendant appeals. The errors relied on are certain instructions of the court and the refusal of the court to grant defendant a new trial.

It appears from the evidence that plaintiff was in possession of the Kelvin Apartments, in which she made her home, from September, 1922, until November, 1923. At that time the defendant purchased the property, and plaintiff continued as a tenant, and was employed by defendant as janitress of the apartments. Plaintiff was and is a married woman, and her husband resided with her in the apartment.

It is not our purpose in this connection to enter into detail in stating the evidence. It is sufficient for present purposes to state that the allegations of plaintiff's complaint were substantially sustained by plaintiff's testimony and in some material particulars corroborated by the testimony of other witnesses.

Appellant assigns as error the giving of instruction No. 4, which reads as follows:

"You are instructed that any wrongful touching of the person of another constitutes an assault; and, if you believe from the evidence in this case that the defendant, Addison Cain, did make an assault upon the person of the plaintiff, Rachel P. Geary, by making use of any indecent familiarity toward her, and embracing, touching, or handling her person in an indecent manner, and without her consent, then your verdict should be for the plaintiff."

The form of the exception taken by defendant was as follows:

"Defendant excepts to instruction No. 4, given by the court, and to the whole thereof, and particularly for the reason that such instruction fails to define in any manner what is a wrongful touching of the person person, under the statute, and further that said instruction fails to define what is meant by indecent familiarity towards the plaintiff, and fails to define, as a matter of law, the term, ``indecent familiarity,' and further that said instruction fails to contain the element of proof necessary on behalf of the plaintiff to justify a verdict."

As the instruction complained of contains at least two distinct propositions of law, it is doubtful if the exception was in proper form. But, as appellant, in an informal way, did refer to certain words in the instruction of which he complains, we are not inclined to be hypercritical as 1 to matters of form. We are, however, of opinion there is no merit in the exception. If there is any doubt as to what constitutes the "wrongful touching of the person," as stated in the first clause of the instruction, the doubt is solved as far as the present case is concerned by what follows in the same instruction. Making use of indecent familiarity by a male towards a female, accompanied by embracing, touching, or handling her person in an indecent manner, without her consent, is undoubtedly a "wrongful touching of the person" and constitutes an assault. As to the term "indecent familiarity," of which appellant complains, it would be a sad commentary upon the intelligence of the jury if we should hold that it was necessary for the court to explain to the jury what was meant by the term. We are assuming that the jury had ordinary common sense, and therefore clearly understood the full scope and meaning of the instruction without a kindergarten explanation by the court.

Appellant also assigns as error instruction No. 6, which reads:

"The court charges you that the law presumes some damage results from every wrongful assault."

The objection to this instruction is that the court failed to define the legal meaning and import of the words "wrongful assault." The jury, as we have seen, had already been instructed as to what constituted an assault. They certainly must have understood that the term "wrongful assault" meant nothing more nor less than the term "assault" as defined in instruction No. 4 above quoted. But instruction No. 4 2, 3 was not the only instruction given as to what constitutes an assault in a case of this nature. In instruction No. 8 the jury were instructed:

"The court instructs you that, if a man takes improper liberties with a female, or touches, or fondles, or handles her person against her will and without her consent, he is guilty of an assault."

Appellant, however, assigns as error the giving of the instruction last quoted, for the reason that the court failed to define the term "improper liberties with a female." Much that we have already said in connection with the exceptions heretofore considered is equally applicable here. We are compelled to assume that even a tyro in this day and age of the world, in this country at least, knows what is meant by "improper liberties with a female." If he does not, it might be to his interest to learn the meaning of the term in order to keep out of trouble. We find no error in the instructions to the jury.

The principal and most important question presented on this appeal is raised by appellant's assignment that the damages awarded by the jury are excessive, appearing to have been given under the influence of passion or prejudice, 4 and that the trial court abused its discretion in denying defendant's motion for a new trial.

The only circumstance before the court tending to show that the jury were influenced by passion or prejudice is the amount of the verdict. The verdict of a jury may be excessive, and, in the opinion of the court, may not, as to amount, be fully sustained by the evidence, but it does not necessarily follow that the jury were influenced by passion or prejudice. In such cases it has become the settled rule in this and many other jurisdictions that the trial court has the power to require the plaintiff to remit a portion of the damages or defendant will be granted a new trial.

In support of appellant's contention that the trial court abused its discretion in denying appellant's motion for a new trial, his counsel call our attention to the following cases decided by this court: Browning v. Bank of Vernal, 60 Utah, 197,207 P. 462; Stephens Ranch Livestock Co. v. Railroad Co.,48 Utah, 528, 161 P. 459.

In each of the above cases a new trial was applied for in the court below on the ground of excessive damages given under the influence of passion or prejudice. The motion for a new trial in each case was denied by the trial court. On appeal to this court, the judgment was affirmed. The cases are relied on here, not because the court sustained appellant's contentions in the cases referred to, but evidently because of something said in the course of the opinions. In the case last cited, the court, speaking through Mr. Justice Frick, at page 538 (161 P. 463) use the following language, which appellant quotes in his brief:

"We can discover nothing in this case, except the amount allowed, which indicates passion or prejudice, and, as we have seen, passion or prejudice may not be inferred alone from the fact that an excessive amount is allowed by a jury, unless the amount is so grossly excessive that it shocks the ordinary man's sense of justice."

It is earnestly contended by appellant that the excessive verdict in the case at bar is persuasive that the jury were influenced by passion or prejudice. In that connection appellant's counsel also say:

"We are unable to conceive how a trial judge could reduce a verdict in the sum of $10,000, under the facts proven in this case, and not be of opinion that the verdict was obtained with passion and prejudice."

Counsel for appellant assume in their argument that if the verdict was rendered under the influence of passion and prejudice, it necessarily followed that the motion for a new trial should have been allowed. Mr. Justice Frick, in the case last cited, at page 537 (161 P. 462), seemed inclined to that opinion; but upon that proposition the other members of the court withheld their concurrence.

In Jensen v. Railroad Co., 44 Utah, 100, 138 P. 1185, the same question was again involved. The court, speaking through Mr. Justice Straup, after stating, in effect, the right of a litigant, in a case of tort, to the unprejudiced judgment of a jury, at page 121, 122 (138 P. 1192), said:

"Still the jury cannot be permitted to go unbridled and unchecked. Hence the Code that a new trial on motion of the aggrieved party may be granted by the court below on the ground of ``excessive damages appearing to have been given under the influence of passion or prejudice.' Whenever that is made to appear, the court, when its action is properly invoked, should require a remission or set the verdict aside and grant a new trial. But, before the court is justified to do that, it should clearly be made to appear that the jury totally mistook or disregarded the rules of law by which the damages were to be regulated, or wholly misconceived or disregarded all the evidence, and by so doing committed gross and palpable error by rendering a verdict so enormous or outrageous or unjust as to be attributable to neither the charge nor the evidence, but only to passion or prejudice. Whether a new trial should or should not be granted on this ground, of necessity, must largely rest within the sound discretion of the trial court. Still that court, in such particular, is not supreme or beyond reach. Its action may nevertheless be inquired into and reviewed on an alleged abuse of discretion, or a capricious or arbitrary exercise of power in such respect. Such a review is not a review of a question of fact, but of law. A ruling granting or refusing a motion for a new trial is certainly reviewable when the proceedings with respect to it are properly preserved and presented. That has not been questioned. Of course the ruling will not be disturbed on evidence in conflict or on matters involving discretion. Yet our power to correct a plain abuse of discretion or undo a mere capricious or arbitrary exercise of power cannot be doubted."

In that case the opinion was unanimous, and the judgment was affirmed. So it cannot be contended that it is a settled rule in this jurisdiction that the trial court may not reduce a verdict and deny a new trial, even though it be of opinion the verdict was the result of passion or prejudice.

Reverting again to the Stephens Ranch Case, supra, we quote from the opinion at pages 537, 538 (161 P. 462), the following excerpt, which undoubtedly states the correct rule on the question here involved:

"But it does not necessarily follow that because the jury returns a verdict in which a greater sum is allowed than is authorized by the evidence for that reason alone the verdict is the result of passion or prejudice. If such were the rule, all cases in which excessive verdicts are returned would have to be retired. In Jensen v. Denver R.G.R. Co., 44 Utah, 100,138 P. 1192, 1193, this court has clearly indicated under what circumstances the amount of the verdict may be reduced and when a new trial because of an excessive verdict may be granted. Necessarily upon such a question appellate courts must, to a large extent, rely upon the judgment and discretion of the trial court. That court is in a much better position to observe and determine whether a jury was actuated by passion or prejudice, or by both, in returning a verdict for an amount larger than the evidence justifies, or whether the jury was merely mistaken with regard to the amount that should have been allowed. The jury may merely have misjudged the evidence, or may have erred in their judgment respecting the amount that should be allowed, and if such is the case the whole verdict is not tainted, and the error may be cured by requiring the plaintiff to remit the excess. To that effect are all of the modern authorities. In Gila Valley G. N. Ry. Co. v. Hall, 13 Ariz. 270, 112 P. 845, what we deem to be the correct rule is stated by the Supreme Court of Arizona in the fifth headnote, thus: ``Unless it clearly appears from the court record that an excessive verdict in a personal injury action resulted from prejudice or passion rather than an undue liberality exercised by the jury in awarding damages, the trial court's action in remitting a part of the verdict instead of granting a new trial will not be disturbed.'"

It is perhaps unnecessary to state that a question of this kind is difficult to determine. Ordinarily, if there is any substantial evidence to sustain a verdict in an action at law, this court is powerless to set it aside. Such 5 is the general rule reiterated and reaffirmed at almost every term of the court. There can be no dispute as to that. As tersely stated by Mr. Justice Straup, speaking for the court in the Jensen Case, supra:

"A court, vacating a verdict and granting a new trial by merely setting up his opinion or judgment against that of the jury, but usurps judicial power and prostitutes the constitutional trial by jury."

But, as also stated by him in the next sentence, "Still the jury cannot be permitted to go unbridled and unchecked."

The statute contemplates that a new trial may be granted when the verdict, as to amount, is excessive as a result of passion or prejudice. It has, however, become the settled practice, as before stated, in this and many other jurisdictions, to remit portions of an excessive verdict with the consent of the prevailing party and thereupon deny the motion for a new trial. This is usually done by the trial court, but has rarely if ever been done by this court on appeal.

Assuming that this court has the power, in cases of this kind, to review the evidence for the purpose of determining whether the trial court abused its discretion in denying defendant's motion for a new trial, it becomes our duty to enter into greater detail in considering the evidence that we have hitherto done. We have heretofore referred to the relation of the parties, and shown that prior to November, 1923, plaintiff had been in possession of the apartments for a period of about eighteen months. She held possession under some kind of a contract from the owner. In November, 1923, the defendant purchased the apartments and plaintiff thereafter became a tenant of defendant and also janitress of the apartments. As far as that relation was concerned, it appears that plaintiff was to pay to the defendant $15 per month as rent for the apartment she and her husband occupied, and be credited by defendant with $25 per month for services as janitress. The total rental paid for the apartment was $40 per month. But plaintiff insisted throughout the trial that she had other interests in the apartments by virtue of some oral contract or understanding with the defendant, Her contention in this regard may or may not have any substantial foundation. The defendant denied any such understanding, and, it being in a large sense an immaterial issue in the case, the evidence relating thereto was treated either as incompetent or immaterial. It is only material here to state that, whether or not she had any legal claim against the defendant, she nevertheless seemed to think she had, and that mental attitude is important in characterizing some of her conduct in respect to the alleged wrongs and injuries complained of. She seemed to be deeply concerned for fear she would lose her home, as she called it. Her first acquaintance with the defendant was shortly before defendant purchased the apartment. It appears plaintiff was in financial straits and needed a loan of $200. This sum was obtained through the defendant, as security for which she assigned to him her contract for the purchase of the apartment and placed her papers relating thereto in his hands. In addition to her duties as janitress, it appears she sometimes collected rent from other tenants, which amounts she paid to the defendant and took his receipt therefor.

The first conduct of defendant complained of by plaintiff, as alleged in the complaint, occurred July 14, 1924. Plaintiff testified that at that time her health was good, that it had never been better in her life, and that she had never weighed more. On that occasion defendant came to her apartment. Plaintiff showed him some cleaning she was having done in the apartment below. He said, "That is fine; anything you do is all right." She then took him through the rooms and showed him the bathrooms that had been painted. He said: "That is fine; everything is all right; but, dear little baby, I don't care for this. I didn't go into this for this house. I have 200 houses. I don't want these apartments. It is you, and you only, that I want in it to have the best of everything. Anything that you do is all right, but you must please me." She testified that at that he put his arms around her and patted her face and kissed her, and said: "Dear little baby, it is you I want. That man of yours is too old for you. I am the man you should have; lean your head on my bosom, be mine, trust me." She pushed him off, and said, "Mr. Cain, you have a wife and I have a husband; you must be honorable." He said his wife was an invalid and could never be a wife to him, and then said: "Your man is too old for you; get rid of him, push him out. Do as I want you to and you will never know what worry, what sorrow, is." Plaintiff then said: "Mr. Cain, I want business, nothing but business. I have my husband's love; I don't want yours. I want business." Plaintiff testified that defendant then grabbed her and held her tight, and said, "You have got to be mine," and then pushed her against the bathroom door and put his hand down her dress in front and grabbed her breast and squeezed it; that he held her in his arms against the bathroom door and "banged her" (plaintiff here described some movement of defendant's body); that defendant said again, "You must be mine." Plaintiff said: "Let loose or I will scream." Defendant then said: "You know what that will mean. I have everything in my power, little baby. If you scream, I will put you out in the street. I can take everything. You know I have all the papers and everything." Plaintiff then testified that defendant banged her again with his body like that (making motions). Plaintiff says she was overcome, horrified, indignant, and broken-hearted to think that any man would dare touch her and abuse her in such a manner. Plaintiff further testified that defendant banged her in the manner indicated and grabbed her here (indicating), and then said: "I have as fine a set of tools as there ever was, and I have no place to use them. You must do as I want you to; you must please me, or you will go out in the street." Plaintiff says she nearly fell, she was so broken-hearted and grief-stricken; that defendant hurt her with his grabbing and could see that his loving words would not make her yield; that she got loose as soon as she could and ran up to her apartment.

In detailing the testimony as to what occurred on this occasion, I have gone more into detail than will be necessary in stating the evidence relating to subsequent occasions, for the reason that there is more or less similarity in the conduct of the defendant, as described by plaintiff, on all of the occasions set forth in her complaint. The same kind of solicitations and the same kind of promises that he would take care of her and that she need not worry, requesting her to get rid of the old man, accompanied with suggestions that he had her in his power and that she must do as he wanted her to do, the grabbing and squeezing of her person in delicate parts, according to her testimony, was again repeated, in spite of her protests, resistance, and pleadings to desist.

On the occasion in October, 1924, which is one of the occasions charged in the complaint, plaintiff testified that defendant hurt her so badly that she fainted and fell to the floor; that she became ill and was confined to her bed for a period of about seven weeks; that she was compelled to employ physicians and nurses to treat and take care of her and incur the expense incident thereto. She attributed her condition solely to the assaults that had been made upon her by defendant. She stated that her nerves were shattered; that she could not sleep, and was subject to hideous dreams and nightmares such as she had never experienced before; that she lost weight; that before the alleged wrongs complained of she weighed 115 pounds; that in consequence of the wrongs inflicted her weight was reduced to 93 pounds; that she thought she was going to die; that she had never told her husband or any one else up to that time; she was afraid her husband would kill the defendant; she had desired to get along peaceably with the defendant; she wanted to save her home. When she became seriously ill, she felt she ought to tell her husband, and did so, but exacted from him a solemn promise that he would do nothing rash. She also communicated the facts to one or two of her close friends. She also consulted a deputy sheriff, Mr. Smith, and an assistant county attorney, Mr. Tingey. She was advised by her physician to go away and take a rest. She concluded to do so, but before going desired a settlement, as she called it, with the defendant. She claimed he had promised to give her a contract to purchase the apartment upon her repaying what it had cost him, with interest thereon. Her testimony indicates that she was very much concerned about her home and wanted to save it. It appears her husband was not engaged in regular business. He helped plaintiff about the apartment, but she was the active manager of the business. It appears that she had become afraid of the defendant and did not wish to meet him again alone and unprotected. She had some rent money to pay him and had a neighbor phone and request him to come to the apartment. This was on the evening of December 5, 1924. She arranged to have present in an adjoining room two or three friends, including the deputy sheriff to whom we have referred. She was ill and was lying on the sofa when defendant came. It was about 7 o'clock p.m. She let him in and returned to the sofa and sat down. She told defendant she desired to go away to her sister's for a few months, and wished he would make a settlement with her in writing so she could be at ease on the business relating to her home. Then, according to plaintiff's testimony, defendant told her as on former occasions "not to worry, to get rid of her husband, throw him out." She was very weak and was lying on the couch at this time. She says that defendant put his hand down her clothing onto her breast, squeezed it, and said, "You are weak; don't worry so much; I will take care of you, dear little baby." The testimony shows that plaintiff resisted by removing his hand and said she wanted him to give her a contract — something in writing — so that her mind could be clear, could be at rest and quiet. The testimony shows also that at that time he felt of her lower limbs and held her on the couch. She had armed herself on this occasion with an ice pick and had it in her stocking, resolved, as she said, to use it in the event defendant undertook to "bang her and hurt her as he had done before." The defendant in feeling of her person discovered this weapon and laughingly told her she ought to use a gun. She insisted that he write out a contract giving her the right to purchase the apartment. He wrote an option in duplicate for the purchase of his interest in the apartment for the sum of $1,500, payable in 30 days. The witnesses in the adjoining room were in a position to see and hear. In the main they corroborated the testimony of the plaintiff as to what occurred. They saw defendant put his hand upon her breast and legs and saw her remove his hand therefrom and heard her insist upon a contract for the purchase of the apartment. The deputy sheriff testified he was there to arrest the defendant if he had resorted to violence as alleged on former occasions. Plaintiff testified that defendant was not so violent on this occasion as on previous ones.

Such are the main features of the testimony concerning the alleged assaults, except that, in order to avoid prolixity, we have not stated in detail what occurred on every occasion.

The nurse employed by plaintiff testified in plaintiff's behalf. The witness had been a practical nurse for 20 years. She was called to attend plaintiff November 15, 1924. She found plaintiff had a nervous breakdown. She suffered with considerable pain in her chest and head. Plaintiff did not want to be left alone. Whenever witness would leave her, plaintiff would say, "Oh come back here; don't leave me alone a minute." She would request witness to hold her hand and bind her head. She made exclamations of fright, and showed signs of fear. She would say, "Oh don't let him in here." She would ask witness to hold her tight; that she would complain of pain in her chest and head. She would say "Oh, Mrs. Miller, there is Cain again." She began to improve the latter part of November. Witness left her December 2, but she was still in bed. Witness expected to return, but took ill herself and could not. Plaintiff was sometimes uncontrollable. "She would rise up out of bed" and scream for witness to come and take hold of her, and would make reference to defendant by name. Witness never met the plaintiff until she went to attend her. Witness said that in all of her experience she had never seen any one in plaintiff's condition — had never nursed any one as nervous as plaintiff.

Dr. Andrews, the physician who attended plaintiff, testified he had known her about 40 years, and was called to attend her about October 20, 1924. All of her symptoms were "symptoms of nervous shock, or shock at least. It is difficult to differentiate without a history between a nervous and traumatic shock. A traumatic shock is due to a force being applied — a blow external or internal. A nervous shock is a little more errotic, a little harder to deal with, and more persistent, more effect upon the body. It is difficult to say whether the nerve injury was permanent. It still persists at this time in a lessened degree." She was in bed six or eight weeks while witness attended her. Witness prescribed a nurse for her — Mrs. Miller. Witness saw plaintiff in June or the early summer of 1924. She seemed very active, in good condition and stouter than she had been, in good mental condition, and seemed to have much life. Witness noticed a change after July. She was in his office once or twice in August. She was nervous. He gave her a sedative — a little tonic that soothes the nerves — that was to overcome a nervous shock. She was quite bad when witness first saw her in October. That was why he prescribed a nurse. It was several weeks before she began to rally. She could not be controlled before she got the nurse. She appeared to have lost weight. She looked haggard and pale. She complained of considerable soreness in her stomach and chest at that time. Witness made an examination, but found no fracture. He could not take an X-ray unless she had gone to the hospital, and that seemed unnecessary. On further examination witness testified he found no organic trouble, and, so far as his knowledge went and his examination showed, she was fairly sound physically. He stated that a "shocked condition is not a normal condition, but there is no disformity, and there is no change in the organ itself"; that he could determine the shocked condition without a history of the case; that there was an injury to the nervous system; that her condition was rather grave at certain times for several weeks. Witness meant those "profound symptoms that, when looking at the patient, a preliminary examination, you would suppose she might die at almost any time. * * * It was sufficient to keep one on the anxious seat regarding it." Witness then testified concerning his former acquaintance with plaintiff, and stated that she looked wholly well when he met her on the street and when he was first introduced to her husband, and many times after she seemed well and happy. She had been married three or four years, and appeared in better health than before.

It is unnecessary to state the evidence on the part of the defendant. It is sufficient to say he categorically denied every statement of plaintiff and her witnesses tending to prove the various assaults and forms of abuse alleged in her complaint. The question is, Can this court, from the evidence appearing in the record, find that the trial court abused its discretion in denying defendant's motion for a new trial?

In view of the present state of the law as declared by this court in previous cases, it is not satisfactorily established that a trial court may not, with the consent of the prevailing party, reduce the damages awarded and deny a new trial, even though the damages are excessive apparently as a result of passion or prejudice.

We have referred to Stephens Ranch Case, 48 Utah, 528,161 P. 459 and the Jensen Case, 44 Utah, 100, 138 P. 1185, in which for the first time there appears to have been a philosophical discussion of the question. Prior to those cases the uniform holding of the court appears to have been against interfering with the verdict of a jury in a law case, whether the damages were excessive or not, and notwithstanding they may have been the result of passion or prejudice. Upon this point see the following cases: Budd v. Salt Lake City,23 Utah, 515, 65 P. 486, in which previous cases are collated at page 519; Braegger v. Salt Lake City R.R. Co., 24 Utah, 391,68 P. 140; Palmquist v. M. S.S. Co., 25 Utah, 257,70 P. 994; Burt v. Utah L. P. Co., 26 Utah, 157, 72 P. 497;Railroad v. Russell, 27 Utah, 457, 76 P. 345; Nichols v.O.S.L.R.R. Co., 28 Utah, 319, 78 P. 866; Sargent v. UnionFuel Co., 37 Utah, 392, 108 P. 928.

In the foregoing cases and in the cases collated in 24 Utah, supra, the court invariably appeared to be of opinion that this court had no power to review the question as to whether or not the damages awarded by the jury were excessive. In some of the cases it was even held that the Constitution forbids it. The first departure from this view I have been able to find in the decisions of this court is in Jensen v. Railroad Co., supra, in which, as before stated, there is a philosophical discussion, and some effect is attributed to the Code which authorizes a new trial where damages are excessive as a result of passion or prejudice. The next case in order is Thomas v. Ogden RapidTransit Co., 47 Utah, 595, 155 P. 436, which is in line with the Jensen Case, though not discussed to the same extent. The last is the Stephens Ranch Case, supra, which also discusses the question on principle, but, as before stated, the court was divided on the question we are now considering. There may be other cases which the writer has overlooked, but such as I have cited illustrate the present state of the law as determined by the court. I am of opinion the question is still open as to whether this court may review a question of this kind, unless it is manifestly clear as matter of law that the trial court has abused its discretion in denying a new trial. And upon that question it seems to me, in case of doubt, the deliberate action of the trial court should prevail. Otherwise this court will sooner or later find itself usurping the functions of both the jury and the trial court, in violation of the spirit, if not the letter, of the Constitution.

I am unable in the instant case to find any tangible support for the view that the trial court abused its discretion in making the order it did and in denying the defendant's motion for a new trial. That there is evidence in the record 6 to sustain a verdict for damages no one will deny. The elements of damage entering into the case are set forth in the court's instruction No. 9, which reads as follows:

"The court instructs you that, if you find the issues in favor of the plaintiff, you should assess the amount of damages to which you think the plaintiff is entitled; and in assessing the same you should take into consideration the actual damage sustained by reason of the assault, in which is included the physical injury suffered, if any, the mental suffering, shock, and injury to the nervous system, humiliation, mortification, and injury to her feelings, and sensibilities resulting from such assaults, together with the disgrace, insult, and indignity to which the plaintiff was subjected by said assaults, and from which, if any, she now suffers, as well as the effects of such assaults upon her present health and the future condition thereof, and also its effects, all of which the court charges you are proper elements of damage to be considered by you in arriving at your verdict; and, if you further believe that said assault was wilfully, wantonly, or maliciously done, you may assess an additional sum as punitive or exemplary damages, as a punishment to defendant and to deter others from the commission of a like offense. Some of these elements of damages are not susceptible of measurement by any exact rule. They are therefore left to you to be determined from the evidence in the case in the light of your experience in the affairs of life which you have in common with all mankind, and in the exercise of your sound judgment and common sense."

Assuming that the damages awarded by the jury are excessive, what evidence is there that they were awarded under the influence of passion or prejudice? No exception was taken to the jury, or any member thereof, when they were impaneled, no conduct on their part, or any of them, evincing prejudice or passion, was noted during the progress of the trial, and no complaint is made whatever except as to the amount of the verdict. With all of the elements of damage to consider and pass upon, assume that the damages were excessive and too liberal, what evidence have we that it was anything more than an honest mistake of judgment as to what the damages should be, and what assurance is there that upon that question our judgment would be more accurate than that of the jury?

It is not my purpose to review and comment upon the evidence. The jury saw the litigants and the witnesses and how they appeared during the trial. So also did the trial court. They have passed upon the questions here involved, and, as I view the case, without stronger convictions than I possess at the present time, it would do violence to my own conscience and judgment to undertake to disturb the order made by the trial court. I cannot find that the jury was influenced either by passion or prejudice, or that the trial court abused its discretion in denying defendant's motion for a new trial.

The judgment is affirmed at appellant's cost.

GIDEON, C.J., and FRICK and CHERRY, JJ., concur.