Westover v. Calder

Mr. Justice Galen,

Concurring Specially: I concur in the result reached. The basis for an award of exemplary damages in this case was the oppression used by the defendants, but in view of all of the facts and circumstances connected therewith an allowance of $5,000 is altogether too great. The rule with respect to the award and disallowance of exemplary damages has been defined by this court (Luther v. Lee, 62 Mont. 174, 204 Pac. 365; Cornner v. Hamilton, 62 Mont. 239, 204 Pac. 489) ; and while in my opinion some punishment would be proper in this instance by way of example, to deter others from interference with the sacred constitutional guaranties possessed by the plaintiff or another in like situation, yet it is impossible for this court on appeal to scale or proportion the allowance of punitive damages on any proper basis, considering all of the facts in this particular case. It is evident to me that passion and prejudice entered into the verdict of the jury in the award of damages made by it by way of punishment; however, it is my opinion that the ends of justice will be best subserved by affirming the judgment as to compensatory damages alone.

Honorable Roy B. Ayers, District Judge, sitting in place of Mr. Chief Justice Brantly, disqualified, concurs in the views expressed by Mr. Justice Galen.

Modified and affirmed.