Van Lom v. Schneiderman , 187 Or. 89 ( 1949 )

I do not believe that the attacked verdict is excessive, even under the tests which were employed prior to the adoption of Article VII, Section 3, Constitution of Oregon. I do not think that this court is authorized to set it aside. Chancellor Kent, in language which has been many times quoted with approval, said:

"* * * The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess."

Coleman v. Southwick, 9 Johns. (N.Y.) 45, 6 Am. Dec. 253.

The plaintiff was entitled to an award of compensatory damages in a sum representing just compensation to her for all injuries which she sustained as a result of the defendant's wrongful conduct. The jury was authorized to include amounts for the mental suffering, if any, arising from the indignity, disgrace and humiliation which the plaintiff underwent.

The physical injury which the plaintiff sustained was minor, and, in all likelihood, the award of $5,000 compensatory damages was based only in part upon it. The jury had a right to believe, however, that the plaintiff sustained intense mortification when the defendant's son and one of the latter's employees, who wore a police uniform, seized the plaintiff, booted her around, detained her in one of the defendant's rooms, and later placed her in the police patrol wagon which carted her off to the police station. This humiliating treatment which she underwent was experienced in the presence of a large assemblage of persons. If the plaintiff was all that a young woman should be, and we have no right to say that she was not, the award of $5,000 damages cannot be held to outrage one's sense of justice.

It is sometimes said that punitive damages must be in reasonable proportion to the compensatory damages. In the case at bar the compensatory and the punitive damages are in like amount. Section 8-406, O.C.L.A., authorizes the recovery of treble damages against anyone who wilfully injures or destroys a tree. The purpose of trebling the damages, obviously, is to deter others from committing similar offenses. Thus, awarding punitive damages in treble the amount of compensatory damages has been recognized by the legislature of this state as proper — at least, in the instance of injuries to trees. In the case at bar, the jury doubled the compensatory damages. Manifestly, the well-being of a young girl is no less important than that of a tree. InPelton v. General Motors Acceptance Corp., 139 Or. 198,7 P.2d 263, 9 P.2d 128, this court sustained as valid an award of $5,000 punitive damages. The compensatory damages were $255.00. The action was for conversion. No element of physical violence, personal indignity or mortification was present in that case. I do not believe that it can be said that the jury's action in awarding this very young woman $5,000 punitive damages was unwarranted.

I conclude that the verdict must be sustained against the appellant's attacks. The above is the disposition which, I believe, should be made of this appeal. But I shall go on and state my opinion of the interpretation which the majority place upon Article VII, Section 3, Constitution of Oregon.

The adoption of Article VII, Section 3, Constitution of Oregon, was intended to effect a substantial change in the treatment of motions for new trials. The adoption of new procedure and the supplanting of old expressions with new ones are generally made for the purpose of getting rid of old ideas and ushering in new ones. Article VII, Section 3, was intended, of course, to yield new results. Shortly after it was made a part of our constitution the courts of this state construed it to mean that it ended the power of trial judges to set aside verdicts which they deemed unreasonably large. Thus, it terminated the practice of granting new trials on account of excessive verdicts. The holdings just mentioned attracted wide attention, and it is permissible to infer that they conformed to the construction which the people intended should be placed on Article VII, Section 3, because no effort was made to discard those judicial interpretations through a rephrasing of the constitutional provision. After those early pronouncements were made a better understanding of the powers over verdicts reserved to the courts by Article VII, Section 3, would have been facilitated had the expression, "excessive verdict", been abandoned. Article VII, section 3, reserves to the courts, Circuit and Supreme, power to re-examine a verdict if the court "can affirmatively say there is no evidence to support the verdict." Whenever a court can so say, it has a duty to perform.

The work performed by a jury in assessing damages, that is, in computing and estimating them, is materially different from the work performed in "finding" such a fact as the rate of speed of an automobile. The jury "finds" the rate of speed of the automobile by listening to the witnesses and by determining their credibility, in the event that the testimony is contradictory. But the amount of the damages is the result of computation, assessment and estimation. It is reached by applying the law governing damages to the injury as found by the jury. Discretion has its proper place in making the assessment. Notwithstanding this difference between the finding of a fact and the assessment of damages, the amount awarded is generally deemed a fact. The distinction may prove to be material in the event that a litigant against whom damages have been assessed should claim that, although the verdict is regular upon its face, no damages, in fact, were actually assessed because the jury acted arbitrarily or gave itself over to passion and prejudice. In that event, he would argue that he had not been accorded due process of law. This case calls for no pronouncement of views upon those subjects nor for the citation of authorities. There is no basis in this case for believing that the jury acted irregularly. If in the future we should be confronted with contentions of the kind just mentioned, we should not be embarrassed with anything now said concerning our past decisions which spoke upon the subject.

With these reservations and limitations, I concur in the opinion of the Chief Justice.