Keller v. Safeway Stores, Inc.

On motion for rehearing I have given further consideration to the question of the size of the verdict. I agree that it is large, but I have come to the conclusion, upon further study, that it is not so shockingly large as to indicate passion and prejudice on the part of the jury. If we impute passion and prejudice on the part of the jury, we must make the same accusation against Judge Lynch who approved the verdict by denying the motion for a new trial.

Here it has been established that defendant falsely accused plaintiff of the commission of a crime. That crime was a felony, carrying a maximum penalty of ten years in the state penitentiary. We have often stated that we will be slow to interfere with the judgment of the trial court on the question of excessiveness of the verdict. (Staff v. Montana PetroleumCo., 88 Mont. 145, 291 P. 1042; Autio v. Miller, 92 Mont. 150,11 P.2d 1039; Fulton v. Chouteau County Farmers'Co., 98 Mont. 48, 37 P.2d 1025.) I think we should not interfere with his judgment here or with that of the jury even though had we been jurors we might not have been willing to agree to a verdict in that amount. There are cases sustaining $10,000 verdicts in slander or libel cases where the charge was no more opprobrious than that here. (Pfister v. Milwaukee Free PressCo., 139 Wis. 627, 121 N.W. 938; Estelle v. Daily News Pub.Co., 101 Neb. 610, 164 N.W. 558.) And a verdict for $5,000 for injured feelings alone has been sustained. (Cyrowski v.Polish-American Co., 196 Mich. 648, 163 N.W. 58.)

The amount of compensation for the mental suffering endured by plaintiff was peculiarly within the province of the jury. There is no exact standard by which to measure in money the amount that will compensate for mental anguish. If the amount "is a matter of guesswork, the jury can guess as well as we." (Autio v.Miller, supra.) The accusation made against plaintiff might cause grievous mental suffering to one person and only slight mental disturbance to another under the same circumstances, depending upon the sensitiveness of the person against whom the charge is made. Jurors must understand that they have a conscientious duty to perform in fixing the amount of damages awarded to a litigant in a tort action. They must not be led to believe that the matter of fixing damages is unimportant — that if they make the award too small the supreme court will increase it to what it should be, and if they make it too large the supreme court will pare it down to what it ought to be. The more we interfere with their verdicts, the more apt are they to conclude that what they do on that question is merely a matter of form. The record here fails to show any extrinsic matters which might have created passion or prejudice on the part of the jury as was the case in Wise v. Stagg, 94 Mont. 321,22 P.2d 308, and in Tanner v. Smith, 97 Mont. 229, 33 P.2d 547, which we pointed out in Fulton v. Chouteau County Farmers'Co., 98 Mont. 48, 37 P.2d 1025, as the reason for disturbing the verdicts in those cases. I think the statement made by Lord Camden in Huckle v. Money, 2 Wils., (K.B.) 207, 95 Eng. Rep., Reprint, 768, is correct wherein he said: "It is very dangerous for the judges to intermeddle in damages for torts; it must be a glaring case indeed of outrageous damages in tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages."

What we said in Wallace v. Wallace, 85 Mont. 492,279 P. 374, 382, 66 A.L.R. 587, is here applicable. This court in that case said: "A new trial on the ground of the excessiveness of the verdict can be granted only when the verdict is so excessive as to evidence passion and prejudice on the part of the jury. (Sec. 9397, Rev. Codes 1921.) If we should reverse the judgment and remand the cause for a new trial on this ground alone, we would, in effect, substitute our judgment for that of the jurors and instruct a subsequent jury that it should render a verdict for a less amount, and how should we determine what would be a reasonable amount under the circumstances? We might reduce the verdict, but on what facts found in the record could we say: So much would be reasonable, so much excessive? How are we to gauge the loss or suffering of the plaintiff for the loss of the affection and companionship of a wealthy and pleasure-loving husband and the assistance of a father in the case of an ailing child? These matters are best left solely to the sound judgment of the jury, and such a judgment should be set aside only when it is manifest that the verdict was rendered under the impetus of passion and prejudice. Here we cannot say that such a showing was made."

I am persuaded that though the verdict is large, since it has received the sanction of the trial judge who had the advantage of seeing the witnesses, and since there are no extrinsic facts in evidence calculated to show passion or prejudice, we ought not to interfere with it and that the judgment entered thereon should be affirmed.