Olmstead v. Miller

MESCHKE, Justice,

concurring and dissenting.

I concur that Miller is liable and that Olmsteads’ action is not controlled by Chapter 26-41, N.D.C.C. But, I would hold that the evidence was sufficient to warrant submission to the jury of Olmsteads’ claim of damages for future suffering and medical expenses. I would also hold that evidence of the plaintiffs’ pecuniary circumstances was properly admitted. And, since plaintiffs are obviously entitled to compensatory damages, there is no reason to vacate the award of punitive damages.

Kevin testified that the physical effects of his injury continued up to the date of trial. This evidence demonstrated a continuing physical effect, however modest. For me, that is sufficient evidence to warrant consideration by the jury of future pain and suffering. It does not require an expert to infer that discomfort that has continued for months will, more likely than not, continue in the future.

Our prior cases support the submission of this issue to the jury. In Olson v. Wetzstein, 58 N.D. 263, 225 N.W. 459 (1929), the plaintiff did not offer medical testimony as to the effects of his injury while the defendant had three doctors who testified from their examination of plaintiff that it was only a temporary injury. After the plaintiff testified as to his continuing injury, the court instructed the jury that they could take into consideration whether plaintiffs injury was temporary or permanent. On appeal, the defendants claimed this instruction was error because of the lack of medical testimony. In Olson, this Court stated:

“The plaintiff had testified to continuous weakness of the arm — weakness existing at the time of the trial and which appeared to show no improvement — and inability to lift and grip as before. He was not required to submit medical testimony on his own behalf, though the absence of such testimony could be considered by the jury. The jury had the right also to consider the uncertainty expressed by the physicians as to the future. The rule as to experts stated in Axford v. Gaines, 50 N.D. 341, 195 N.W. 555, is applicable here. It was proper for the court to submit the character of the disability to the jury and leave it to the jury to determine whether under all the circumstances of the case the injuries would probably continue over such a length of time as to be termed permanent in the common vernacular.” 225 N.W. at 461.

Similarly, in Nichols v. Kluver, 61 N.D. 42, 237 N.W. 640 (1931), this Court recognized:

“It can hardly be said that there was no evidence whatever from which it might be deduced that the plaintiff would be subject to pain and suffering in the future, or that to some degree his injuries would not be permanent. The most that can be said is that there is no expert testimony or opinion testimony of experts to this effect. There was no request that the court instruct the jury that there was no evidence justifying a finding on these questions. It is not at all clear that it can be said upon the record here that any error was committed in the instruction as given. In any event, we are agreed that no prejudice could have resulted therefrom.” 237 N.W. at 643.

And, in Clark v. Josephson, 66 N.W.2d 539, 548 (N.D.1954), this Court stated:

“Medical testimony may be used for the purpose of increasing or minimizing the amount of damages. Blashfield Cyclopedia of Automobile Law and Practice, Volume 10, Part I, Section 6421. We have not found, nor has appellant pointed to any cases holding that substantial damages may not be awarded in absence of medical testimony.”

I would hold that when pain or distress is suffered from the time of the injury to the time of trial, damages for future pain, discomfort and mental anguish, as well as future medical expenses, may be inferred by the jury without medical testimony. As to the claim that this verdict for compensatory damages is excessive, I would reiterate what was said in Dahlen v. Landis, 314 N.W.2d 63, 68 (N.D.1981):

“As we have said many times, the determination of damages for pain and suffering and comparable losses is not susceptible of an arithmetical calculation. Its ascertainment must, to a large degree, depend upon the common knowledge, good sense and practical judgment of the jury, [citation omitted] The jury heard [the] ... testimony and saw him on the witness stand. The trial court reviewed the evidence carefully and, with the advantage of having seen and heard the witnesses, concluded that there was sufficient evidence to sustain the jury’s award of compensatory damages. We cannot say that the trial court abused its discretion in concluding that the ... award of compensatory damages was not excessive.”

There was evidence of actual injuries to these plaintiffs, not only for personal injuries but for the damage to their mobile home. Therefore, even if the verdict for compensatory damages is set aside and remanded for a new trial, there is no reason to vacate the award for punitive damages. Our statute, N.D.C.C. § 32-03-07, does not require actual damages to flow from the tort before punitive damages can be assessed. See Lipinski v. Title Insurance Company, 202 Mont. 1, 655 P.2d 970, 977 (1982). And, an award of punitive damages should stand where a plaintiff is entitled to compensatory damages even if, for some reason, no actual award of compensatory damages is made. James v. Public Finance Corporation, 47 Cal.App.3d 995, 121 Cal.Rptr. 670 (1975); Fauver v. Wilkoske, 123 Mont. 228, 211 P.2d 420, 427 (1949). See also, Annot., 17 A.L.R.2d 527, Actual damages as a necessary predicate of punitive or exemplary damages (1951), particularly at 539.

Whether plaintiffs’ pecuniary circumstances should be considered by the jury is a difficult question of first impression in North Dakota. Although the cases cited in Justice VandeWalle’s opinion do support his conclusion, there are other decisions which suggest that evidence of the plaintiffs’ financial circumstances is relevant to the issue of punitive damages: Grable v. Margrave, 4 Ill. (3 Scam.) 372 (1842); Heneky v. Smith, 10 Or. 349, 45 Am.Rep. 143 (1882); Utlaut v. Flick Real Estate Company, Inc., 246 S.W.2d 760, 764 (1952). 22 Am.Jur.2d. Damages § 322 (1965) states that “[a]s a general rule, evidence of the plaintiff’s pecuniary circumstances is admissible where the case is such as will justify the award of exemplary or punitive damages, although there is some authority to the contrary.”

Because the circumstances of both parties may often be relevant to issues of exemplary damages against a defendant, I would hold that the trial court has broad discretion to admit such evidence pursuant to Rules 103, 401, 402 and 403, N.D.R.Ev., and did not commit reversible error in admitting such evidence here.

Normally, a jury will be cognizant of a plaintiff’s circumstances anyway. Any jury is going to recognize the difference between a janitor and a General Motors seeking punitive damages, just as they knew the difference between the farm laborer and the farmer in Dahlen v. Landis, supra. Direct evidence on the subject should be better than speculative inferences which jurors may make from appearances alone.

But, more importantly, it seems to me that the circumstances of both parties are relevant to awarding exemplary damages “for the sake of example and by way of punishing the defendant.” N.D.C.C. § 32-03-07. How can “oppression” be measured without considering all of the circumstances of the one “oppressed”? The wantonness of a defendant’s misconduct cannot be measured without considering its impact on the injured party, and that impact necessarily includes consideration of the injured party’s circumstances. A person of modest means, who lives from paycheck to paycheck suffers greater distress from economic injuries than one who can comfortably cover unexpected bills. A jury should be able to consider the economic anguish of a plaintiff as well as the economic ability of a defendant in assessing exemplary damages.

This brings us back to another rationale of the trial court, which Justice Vande-Walle’s opinion implicitly recognizes: a plaintiff’s financial circumstances are often relevant to the scope of the injuries for compensatory damages. Thus, evidence of the plaintiffs’ circumstances is frequently admissible for another reason, so the jury will consider the circumstances anyway in setting exemplary damages. The trial court noted this additional reason in its memorandum opinion denying defendant’s motion for a new trial, when it observed that “the court allowed such testimony because of the element of mental anguish” in addition to its bearing on punitive damages. I believe that the trial court’s ruling should be upheld for this reason as well.

Few young people, dependent upon a regular paycheck to meet their bills and living expenses, can afford to lay in bed and nurse their bruises and hurts. I believe the fact that these plaintiffs promptly returned to work, while suffering bruises and pain from the injuries inflicted by the defendant, demonstrates that they are not malingerers, rather than suggesting any minimal nature of their injuries. “Working hurt” is more common among people who work than “playing hurt” is in professional sports. We should neither penalize the stoic efforts of these plaintiffs, nor reward the misconduct of this defendant, by substituting our own view of the seriousness of Olmsteads’ injuries for the conclusions of the jury and the trial judge.