Standard Coffee Company v. Watson , 198 Ark. 592 ( 1939 )

I cannot agree with the majority in holding, in effect, that this court has the right to sit as a jury and determine the amount of damages that an injured person is entitled to recover.

It is true that this court has several times decided that verdicts were excessive and reduced the judgment to the amount that this court believes is not excessive, and affirmed the judgment for such amount. I think when it does this, when it constitutes itself a jury to determine the extent of the injury and the amount the injured person is entitled to recover, it violates the Constitution.

Section 7 of art. 2 of the Constitution reads as follows: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law."

"What does the Constitution mean when it says "trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy"? Does that mean that when the jury decides a question of fact, decides the amount that an injured person is entitled to recover, this court, if it happens to disagree with the jury, can pass on the facts and fix the amount and compel the appellee to accept the amount so fixed? I do not think so. I think it means that the finding of facts by a jury, if there is any substantial evidence to sustain the finding, is conclusive; and this court cannot set aside the verdict if supported by substantial evidence. If this court could fix the amount it would be doing exactly what the Constitution says the jury shall do. This court has no more right to substitute its judgment for the judgment of the jury, than the jury has to substitute its judgment for the court's on a question of law. In other words, questions of law are to be decided by the court, and questions of fact are to be decided by the jury.

Section 1538 of Pope's Dig. provides, among other things, that the verdict shall not be held excessive or be set aside as excessive, except for some erroneous instruction or upon evidence, aside from the amount of damages assessed, that it was rendered under the influence of passion and prejudice. Of course the legislature did not intend to say, and did not mean, that a verdict not supported by substantial evidence cannot be set aside; it has always been the rule, before and since the passage of the law referred to, that the verdict of the jury must be sustained by substantial evidence or it would be set aside; but where the verdict is sustained by substantial evidence, no court has any right to set it aside. To do so would invade the province of the jury and would be substituting the judgment of the court as to the facts for the judgment of the jury. If we can do this, there is no reason for having a jury.

It is true that this court, in the case of St. Louis N. Ark. Rd. Co. v. Mathis, 76 Ark. 184, 91 S.W. 763, 113 Am. St. Rep. 85, construed the above mentioned statute to mean "a limit on the jurisdiction conferred on the Supreme Court by the Constitution." That case, however, was first affirmed by this court, and then on rehearing was reversed, the court holding that the amount allowed by the jury was excessive, but it did not reduce it, as was done in this case. The court there held that if the appellee would remit a portion of the judgment, it would be affirmed; otherwise, reversed and the cause remanded for a new trial. That decision means, and can only mean, that the court did not think there was substantial evidence to sustain the full amount, but it did not then undertake to reduce and modify it. To do this is to pass on the facts, and that is the province of the jury and not the court. It is true we have modified and affirmed judgments; have reduced amounts found by the jury; but under the Constitution and laws we have no right to do that. If we do that, we are passing on the facts and substituting our judgment for the judgment of the jury, which we have no right to do.

In the case of M. P. Rd. Co. v. Remel, 185 Ark. 598,48 S.W.2d 548, we said: "The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate the injured party for his injury. The suit is for compensation, and compensation means that which constitutes or is regarded as an equivalent or recompense; that which compensates for the loss or privation, remuneration."

The same declaration of law was made in Coca-Cola Bottling Co. of Arkansas v. Cordell, 189 Ark. 1132,76 S.W.2d 307. In that case we also said: "While the discretion of the jury is very wide, it is not an arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently, and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering."

This court, in the case of Manhattan Const. Co. v. Atkisson, 191 Ark. 920, 88 S.W.2d 819, said: "Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege, but their right, to judge of the sufficiency of the evidence introduced, to establish any one or more facts in the case on trial. The credibility of the witnesses, the strength of their testimony, its tendency, and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given." Cunningham v. Union Pac. Ry. Co., 4 Utah 206, 7 P. 795; Equitable Life Assurance Society v. Felton, 189 Ark. 318,71 S.W.2d 1049; Healy Roth v. Balmat, 189 Ark. 442,74 S.W.2d 242; Browne v. Dugan, 189 Ark. 551,74 S.W.2d 640; C. R. I. P. Ry. Co. v. Britt, 189 Ark. 571,74 S.W.2d 398.

Not only is this right to pass on the facts a constitutional right, and by the Constitution the jury is made the judge of the facts, but if there were no provision in the Constitution prohibiting us from passing on the facts, I am persuaded that there are but few men of such transcendent ability that they can take a printed record, read it in the office, and know more about whether an injured person has suffered pain and anguish, and the extent of such suffering, than twelve disinterested citizens who, under the law, must be of good character, of approved integrity, sound judgment, and reasonable information. These twelve citizens see the witnesses and hear them testify, and frequently may be able to tell something about the pain and suffering by the appearance of the injured party, his expressions and his manner, and they can tell also whether the witnesses are telling the truth; that is, they are in much better position to judge of that than we are. Even if all witnesses told the truth, we would still lack the opportunity that the jury has of seeing the injured party himself. But we have good authority for the fact that all witnesses do not tell the truth.

"A faithful witness will not lie; but a false witness will utter lies." Proverbs 14:5.

How anyone can imagine that he can, from reading the printed record, arrive at a just conclusion or be better able to determine than the jury the extent of one's injury and the amount necessary to compensate him for such injury, I cannot conceive.

I think that if we reach the conclusion that there is not substantial evidence to support the amount of the verdict, the only thing we can rightfully do is to fix an amount which we think is not excessive and give the appellee an opportunity to enter a remittitur, or reverse the judgment and remand the case for a new trial.

I, therefore, respectfully dissent from the holding of the court in reducing the damages and also in holding that we have a right to assess the damages ourselves.

I am authorized to state that Mr. Justice HUMPHREYS and Mr. Justice BAKER agree with me in the conclusions herein stated.