Webber v. Town of Jonesville , 94 S.C. 189 ( 1913 )

We concur in affirming the judgment against all the defendants for the recovery of the strip of land sued for, but we think the Court erred in allowing the verdict for punitive damages to stand against the defendant, Scott, after granting the other defendants a new trial. While it is true that the liability of tort feasors is joint and several, and all, or any one or more of them, may be sued in the same action, and a recovery may be had against all, or any one or more of those who are joined as defendants; or, the plaintiff may bring several actions and recover several judgments against them, as he may elect, and he may even recover different amounts against them, and while it may also be true that the Court has the power to set aside a verdict as to one or more of the defendants and allow it to stand as to the others, when they are sued jointly, nevertheless, we think this should be done, when the verdict is joint, only where it is reasonably certain that no injustice will result to the defendant or defendants against whom the verdict is allowed to stand. The discretionary power of granting new trials should always be exercised so that injustice will not be done, if it can be avoided.

It is the province of the jury, and not of the Court, to assess damages. Nevertheless, in cases where the amount of damages sustained as the result of a tort is certain, there might be no injustice in setting aside the verdict therefor as to one or more of the defendants and allowing it to stand as to the other or others, for the latter, being both jointly and severally liable therefor, the plaintiff has the right to look to him or them alone.

But where the amount of damages is uncertain, and dependent, in a great measure, upon the ability of the defendants, or some of them, to pay, and upon the discretion of the jury, as in this case, where punitive damages alone were awarded, the verdict should not be set aside as to one or more of the defendants, without setting it aside as to all, except, perhaps, under special circumstances from which it may appear reasonably certain that no injustice will be done.

In this case, the jury awarded a verdict for $150, punitive damages, against six defendants, to wit, the town of Jonesville, Scott, Gault, Fairbanks, Ellerbe and Mobley. In estimating punitive damages, the jury have the right to consider the ability of the defendants to pay. And while there was no testimony as to the wealth of any of the defendants, yet we know that juries consider such matters, when they know the facts, even in the absence of testimony. Who can say that the jury would have rendered the same verdict against Scott, if his liability and ability to pay had alone been considered? Let us suppose the case of a poor man and a rich man, joined as defendants in an action of tort. Even without any testimony as to their wealth, the jury, if they knew that one was a man of wealth, would probably render a much larger verdict against the two, where the amount was in their discretion, than they would have rendered against the poor man, if they had thought that he alone would have to pay it. Now, would it be just to set aside the verdict as to the rich man and allow it to stand as to the other? An amount which would be moderate punishment for the one might result in financial ruin to the other. It stands to reason that the jury rendered a bigger verdict against all the defendants, supposing that all would have to share the burden, than they would have rendered against any one of them. Therefore, to set it aside as to all except one imposes upon that one a greater burden than the jury intended he should bear, and the result is that the Court indirectly becomes the assessor of damages against him, and not the jury, which violates the spirit, if not the letter, of the right of trial by jury. See Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543, and Albright v.McTighe, 49 Fed. 817, which is cited with approval in the former case. In Carson v. Ry., 68 S.C. 55, 46 S.E. 525, and Bedenbaugh v. Ry., 69 S.C. 1, 48 S.E. 53, the actions were against master and servant, and the jury found against the master and in favor of the servant. Therefore, those cases are not in point. But suppose the jury had found a heavy verdict against both, would it have been fair to the servant to let it stand as to him, and set it aside as to the railroad company?

There is another reason why we think the verdict should have been wholly set aside. The Court clearly and positively instructed the jury that they must not find a verdict against the town for damages. In the face of this instruction, the verdict was against all the defendants, including the town, for damages. This may have been a mere inadvertence or it may have been intentional. The record does not disclose, and we are left to conjecture, whether it was the one or the other. As that question cannot now be determined with certainty, there is only one safe course to pursue, and that is to set aside the verdict. In Thompson v. Lee, 19 S.C. 491, the Court said: "The jury are bound to take the law of the case from the Court, and whenever they undertake to disregard the instructions of the Court as to the law, their verdict should be promptly set aside and a new trial ordered. We need not undertake to add anything to what is so well said in the case cited upon this point (Dent v. Bryce, 16 S.C. 14) as it must be manifest that any other course would be utterly at variance with the principles governing a trial by jury, and would tend to undermine the authority of the Court."

The verdict for damages must, therefore, be set aside, and a new trial granted to all the defendants on that issue.

MESSRS. JUSTICES WOODS and FRASER concur.