Lorraine Van Lom, a minor, by her guardian ad litem, Frances Van Lom, sued Paul Schneiderman, doing business under the assumed name and style of The Music Hall, for assault and battery.
The Circuit Court, Multnomah County, ALFRED P. DOBSON, J., entered a judgment for plaintiff on a verdict awarding $5,000 compensatory damages and $5,000 punitive damages, and the defendant appealed. *Page 91
The Supreme Court, LUSK, C.J., affirmed the judgment on ground that the Supreme Court under the State Constitution had no power to set aside a verdict in an action for unliquidated damages on ground of excessive damages.
BRAND, J., dissented in part. The plaintiff sued for assault and battery and false imprisonment. At the trial the cause of action based on false imprisonment was withdrawn by the court from the consideration of the jury and the trial proceeded on the charge of assault and battery alone. For that wrong the plaintiff demanded $5,000.00 compensatory damages and $5,000.00 punitive damages. The jury returned a verdict for the full amount asked. From the consequent judgment the defendant has appealed.
There are no exceptions in the record and the defendant's brief contains no assignments of error. The brief sets forth two propositions of law, to-wit: "The verdict of $10,000 rendered in favor of the respondent and against the appellant in this case is manifestly excessive" and "The Supreme Court of Oregon is empowered under Article VII, Section 3, Oregon Constitution, to reduce an excessive verdict." The defendant moved in the Circuit Court for an order granting a new trial on the ground, among others, that the damages were excessive. The court denied the motion. The failure of counsel for the defendant to assign this ruling as error is accounted for by their concession that since the adoption of Art. VII, § 3, of the Constitution it has been uniformly held that the circuit courts of this *Page 92 state have been stripped of the power which they had theretofore exercised of setting aside a verdict for excessive damages. SeeHust v. Moore-McCormack Lines, Inc., 180 Or. 409, 417,177 P.2d 429. They contend, however, that the constitutional provision in question has conferred on this court the authority to inquire into the amount of the verdict and, if it deems the damages excessive, to reduce them and enter a judgment for a lesser amount fixed by the court — this without regard to whether or not reversible error or any error was committed on the trial.
The question being an open one (Hust v. Moore-McCormack Lines, Inc., supra) and one of far-reaching importance, we requested Eugene K. Oppenheimer, Esquire, and B.A. Green, Esquire, to file briefs as amici curiae and to participate in the oral argument. The court desires at this time to acknowledge its indebtedness to these eminent members of our Bar, and to those whom Mr. Green associated with himself in the preparation of his brief, for their willing response to this call to professional duty and the industry and learning which they have brought to its discharge.
A brief statement of the evidence will suffice. The plaintiff, a young woman employed in a Portland shipyard, sought to gain admission to The Music Hall, a tavern of which the defendant was the proprietor, in order to a see a friend who had promised to be there at the time and pay the plaintiff a small debt. According to the plaintiff's evidence, without any provocation on her part, she was roughly evicted from the Music Hall by the defendant's son, who was an employee; was slapped, pushed and kicked by the defendant and his son, who directed profane language at her; was carried downstairs in a "bear hug" by a police officer employed *Page 93 by the defendant, and detained until the patrol wagon arrived and carried her off to the police station. Defendant's version of the episode was quite different; but the jury's verdict settles the conflict.
There is no evidence that the plaintiff was seriously injured. She testified that she had a bruise on her leg and one on her wrist as a result of the assault. She lost no time from her work.
The court is of the opinion that the verdict of $10,000.00 is excessive. Some members of the court think that only the award of punitive damages is excessive; others that both the awards of compensatory and punitive damages are excessive. Since a majority are of the opinion that this court has no power to disturb the verdict, it is not deemed necessary to discuss the grounds for these divergent views.
Article VII, § 3, of the Constitution, adopted by the people in 1910, reads as follows:
"In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict. Until otherwise provided by law, upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine *Page 94 what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court; provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court."
(1) Power of Circuit Court Notwithstanding the failure of the defendant to assign as error the Circuit Court's denial of their motion for a new trial, we asked counsel to present in argument the question of the trial court's power over the verdict. We did so for the reason that the first sentence of Art. VII, § 3, applies both to the Circuit Court and to this court, and it was thought that consideration of the Circuit Court's power, as affected by the provision, might throw light on the propositions which the defendant seeks to maintain. We have examined the question anew and see no reason to depart from that long line of decisions, beginning with Buchananv. Lewis A. Hicks Co., 66 Or. 503, 133 P. 780, 134 P. 1191, through Timmins v. Hale, 122 Or. 24, 256 P. 770, down to Hustv. Moore-McCormack Lines, Inc., supra, 180 Or. 409,177 P.2d 429, which hold that, since the adoption of the constitutional amendment, the circuit courts of this state no longer have the power to set aside a verdict in an action for unliquidated damages such as this on the ground that the verdict is excessive.
The first sentence of Art. VII, § 3, is not a grant of power to the courts but a limitation on their powers. It reiterates in substance the provision of the Constitution, *Page 95 as originally adopted, that "In all civil cases, the right of trial by jury shall remain inviolate" (Art. I, § 17), and adds a prohibition, "and no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict." This last clause forbids re-examination of a fact found by a jury otherwise than by another jury (see dissenting opinion of Mr. Justice Harris in Hoag v. Washington-Oregon Corp., 75 Or. 588,624, 144 P. 574, 147 P. 756), and is transgressed every time that a court undertakes to revise or correct a jury's finding of fact (unless this be done by the Supreme Court where there is error in the record as in the Hoag case). All that the court may do, so far as the facts are concerned, is to examine the record to determine whether it "can affirmatively say there is no evidence to support the verdict". It has not been disputed, and cannot be, that inquiry into the evidence to determine whether a verdict is excessive and for that reason justifies the granting of a new trial, involves the examination of a question of fact. The decisions of the court construing Art. VII, § 3, are founded on that premise. See also, Lindsay v. Grande Ronde Lumber Co.,48 Or. 430, 438, 439, 87 P. 145, and Oregon Cases there cited; NewYork Central Hudson River R.R. Co. v. Fraloff, 100 U.S. 24,25 L.ed. 531, 535; 5 C.J.S., Appeal and Error, 27, § 1454, and cases cited in note 89; 39 Am. Jur., New Trial, 147, § 140.
The argument is made that the circuit courts "have authority to grant a new trial if there is no evidence to support the verdict in its entirety, although there may be some substantial evidence that the plaintiff was damaged to some extent less than the amount of the verdict". This may be done, it is said, where "the verdict is in excess of an amount that would be regarded *Page 96 by all reasonable men as the maximum recovery justified by the evidence." When the conclusion is reached that the verdict is to that extent excessive, the argument proceeds, the court "can affirmatively say there is no evidence to support the verdict" and no violence is done to the Constitution. This contention has support in the opinion of Mr. Justice Kelly in Johnson v. Ladd,144 Or. 268, 14 P.2d 280, 24 P.2d 17.*
We think the argument is unsound. It is in reality only a formula under which the courts would in practice do the very thing which they were accustomed to do before Art. VII, § 3, was adopted. In trying to give expression to the principles which should guide the trial court in determining whether an award of damages is so excessive as to warrant setting aside the verdict, this court has said that the verdict must be such "as reasonable men would not return under the circumstances of the case".Serles v. Serles, 35 Or. 289, 295, 57 P. 634; Multnomah Countyv. Willamette Towing Co., 49 Or. 204, 213, 89 P. 389. Other statements of the rule are the following: "the damages are palpably or outrageously excessive", Arkansas Valley Land Cattle Co., v. *Page 97 Mann, 130 U.S. 69, 32 L.ed. 854, 9 S. Ct. 458; the amount "must appear to be unreasonable or outrageous, or such as to manifest, on the part of the jury, mistake, misapprehension of duty, or misconduct, indicating that they were influenced by passion or prejudice", 39 Am. Jur., New Trial, 150 § 144; it must be "so great as to appear at first blush to be outrageous, so as to strike every one with its enormity and injustice, so large that no twelve men could reasonably have given it", 4 Sedgwick on Damages, 2673, § 1326; it must substantially exceed "any rational appraisal or estimate of the damages", 15 Am. Jur., Damages, 623, § 205.
It is difficult for us to perceive that there is any substantial difference in the standard now suggested, namely, what "all reasonable men" would regard as the maximum recovery justified by the evidence, and these time-honored standards to which the courts have customarily adhered in passing on the question of whether a new trial should be granted for excessive damages. Yet the courts, in exercising that function, never supposed that they were doing otherwise than passing on a question of fact, or that they were holding that there was "no evidence to support the verdict", as a court does when it grants a nonsuit or a directed verdict or enters judgment non obstanteveredicto. If, therefore, the contention that we are discussing is to prevail, it must be concluded that Art. VII, § 3, has, at least so far as verdicts for excessive damages are concerned, made no change whatever in the law and that the courts are as free to deal with such verdicts as they were before the provision was adopted.
Consideration of the language of the Seventh Amendment of the Constitution of the United States *Page 98 and the decisions construing it will throw further light on what the framers of Art. VII, § 3, intended to accomplish. The Seventh Amendment provides:
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."
The guaranty of jury trial in the Oregon Constitution, as originally adopted, is found in the Bill of Rights, Art. I, § 17, and reads as follows:
"In all civil cases, the right of trial by jury shall remain inviolate."
The first sentence of Art. VII, § 3, reads:
"In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is no evidence to support the verdict."
It will be observed that the first sentence of Art. VII, § 3, departs somewhat from the language of Art. I, § 17, of the Oregon Constitution and follows closely the language of the federal guaranty up to the last phrase. The Federal Constitution says that "no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules ofthe common law"; our present Constitution says that "no fact tried by a jury shall be otherwise re-examined in any court of this State, unless the court can affirmatively say there is noevidence to support the verdict." The Supreme Court of the United States holds that, "according to the course of the common law", a trial court may set aside a verdict which it deems excessive *Page 99 and order a new trial, but that an appellate court has no authority to review the refusal of the trial court to do so. NewYork Central Hudson River R.R. Co. v. Fraloff (1879), supra. And see Slocum v. New York Life Ins. Co., 228 U.S. 364,57 L.ed. 879, 33 S. Ct. 523, Ann. Cas. 1914D 1029. The same rule prevailed in this state prior to the adoption of Art. VII, § 3. The federal and Oregon cases are cited in the Hust case, supra,180 Or. 430, 431. As stated by the Supreme Court in the New York Central case:
"* * * If the jury acted upon a gross mistake of facts, or were governed by some improper influence or bias, the remedy, therefore, rested with the court below, under its general power to set aside the verdict. * * * Whether its action, in that particular was erroneous or not, our power is restricted by the Constitution to the determination of the questions of law arising upon the record. Our authority does not extend to a re-examination of facts which have been tried by the jury under instructions correctly defining the legal rights of parties."
It may be assumed that the framers of Art. VII § 3, were not unacquainted with the construction which the Supreme Court of the United States had theretofore placed upon the Seventh Amendment of the Federal Constitution; and it is evident that, while following faithfully the language of the first part of the Seventh Amendment, they deliberately rejected the common law exception therein. When they substituted in the place of that exception the words, "unless the court can affirmatively say there is no evidence to support the verdict", they in effect declared their purpose to eliminate, as an incident of jury trial in this state, the common law power of a trial court to re-examine the evidence and set aside a verdict because it was excessive or in any other respect opposed to the weight of the evidence. *Page 100
(2) Power of Supreme Court We are thus brought to the defendant's proposition that Art. VII, § 3, authorizes this court to reduce an excessive verdict. The first sentence of the section, standing alone, and applying alike, as we have said, to the Supreme Court and the circuit courts, so far from being a grant, is, as we have seen, a denial of the asserted power. The grant is sought to be found in the succeeding sentences, whose provisions apply to the Supreme Court alone. They appear on their face to have been adopted for the purpose of enlarging this court's powers in certain situations so that litigation can be terminated here and the mischief of repeated new trials reduced. Knight v. Beyers, 70 Or. 413, 418,134 P. 787; Hoag v. Washington-Oregon Corp., supra, 75 Or. 611. For the accomplishment of this end either party is authorized to bring to this court the entire record of the trial — the whole testimony, the instructions of the court to the jury, and any other matter material to the appeal. After careful consideration of all the matters thus submitted, the Supreme Court is authorized by the third sentence of the section either to affirm the judgment, notwithstanding any error committed during the trial, or to direct the entry of such judgment as should have been entered in the court below.
In numerous cases this court has said that this power to retry the case can be exercised only when there is error in the record.Emmons v. Skaggs, 138 Or. 70, 74, 4 P.2d 1115, and other cases cited in the special opinion of Bailey, J., in Johnson v.Ladd, supra, 144 Or. 291, 292. See, also, Hust v. McCormackLines, Inc., supra, 180 Or. 417. The defendant insists, however, that the power does not depend upon the presence of error in the record and that, "since the amendment deprived *Page 101 the trial courts of discretion and authority to grant relief from excessive verdicts, it is apparent that the inclusion of the third sentence was intended to transfer the power to control an unreasonable verdict to this court." This contention finds support in the opinion of Mr. Justice Kelly in Johnson v. Ladd, supra, 144 Or. 277, where he said, "the view of the writer is that by the terms of the Constitution, error warranting reversal is not made a condition precedent to the exercise of the right by the supreme court to direct the entry of such judgment as should have been entered in the court below."
The suggested construction, in our opinion, is not within the language of the sentence nor relevant to its purpose. The mischief aimed at, as we have already said, was a multiplicity of new trials. But this court had never, prior to the adoption of Art. VII, § 3, in 1910, ordered the retrial of a case in which the record was free from error. The provision is concerned with cases where there is "error committed during the trial", and is a direction to this court as to what it may in its discretion do in such cases only, that is to say, we may affirm the judgment if we think it is right, or change it if we think it is wrong, and can determine what it should have been. The latter power has been exercised to reduce the verdict, as in the Hoag case and Martinv. Oregon Stages, Inc., 129 Or. 435, 277 P. 291 (both personal injury actions), in Paget v. Cordes, 129 Or. 224, 277 P. 101 (assault and battery and false imprisonment), and in other cases involving claims for unliquidated damages. It has never been exercised in any case except as an alternative to granting a new trial for error. We have no occasion now to consider whether this court has correctly applied the constitutional provision in the cases just cited. It is sufficient to say that there is *Page 102 nothing in our prior decisions (with the possible exception of Johnson v. Ladd and one other case commented on below) or in the language of the amendment, which can fairly be said to give countenance to the view that the people, at the same time that they affirmed and emphasized the inviolability of the right of jury trial, intended to confer upon this court the extraordinary power to substitute its judgment as to the facts for a verdict based upon competent evidence, returned by a properly instructed jury. There is enough difficulty, even under the construction adopted in the Hoag case, as the opinions in that case illustrate, in reconciling the injunction in Art. VII, § 3, against the re-examination by a court of a fact tried by a jury, with the power exercised by this court in the Hoag and other like cases, without creating further and insurmountable difficulties by an interpretation which would convert this court into a super jury with authority to revise and correct verdicts in cases free from error.
A number of our decisions are cited as lending aid to the theory that this court may reduce the verdict when it finds that the evidence does not support it "in its entirety". Many of these decisions are of the same type as the Hoag case and do not call for separate discussion. In such cases this court has not undertaken to say that "there is no evidence to support the verdict". Having found reversible error in the record and being of the opinion that we could determine what judgment should have been entered in the court below, we have simply appraised the evidence as a jury would and arrived at our own determination of a proper award of damages. Cases arising under the Jones Act, such as Wychgel v. States Steamship Co., 135 Or. 475,296 P. 863, and Fitze v. American-Hawaiian Steamship Co., 167 Or. 439,117 P.2d 825, may be put out of view *Page 103 since, as was ruled in the Hust case, Jones Act cases are governed by federal law and not by Art. VII. § 3. Moreover, the Wychgel case, in which this court reduced the verdict, was overruled in Hust.
Robertson v. Frey, 72 Or. 599, 144 P. 128, is an instance where this court affirmed the judgment notwithstanding error in the record.
Lyons v. Browning, 170 Or. 350, 133 P.2d 599; McDanielsv. Harrington, 80 Or. 628, 157 P. 1068; and Weatherspoon v.Stackland, 127 Or. 450, 271 P. 741, have certain features in common. In Lyons v. Browning we sustained the action of the trial court in setting aside the verdict in an action to recover for the killing and injuring of a large number of turkeys. The verdict included an allowance of damages for the killing of six tom turkeys notwithstanding uncontradicted evidence that only four had been killed. On of the grounds of our decision was that the court erred in instructing the jury in effect that they were authorized to find a verdict for the plaintiff in the amount of $1,575.00 (the full amount prayed for) when the evidence would not support such a verdict. In McDaniels v. Harrington, where the plaintiff sued to recover, among other items, the reasonable value of work and labor performed and failed to offer evidence of such reasonable value, it was held that the trial court erred in not withdrawing this claim from the jury. Rather than remand the case for a new trial this court determined the amount to which plaintiff was entitled from the evidence before it. InWeatherspoon v. Stackland, an action to recover the sales price of apples, the jury failed to give the defendant credit in their verdict for a sum which the pleadings admitted that he had paid. The trial court, with the plaintiff's consent, reduced the judgment accordingly, and it was held *Page 104 that the defendant, who appealed, had no ground of complaint since he benefited by the ruling. Further, the jury allowed the plaintiff to recover for the number of boxes of apples alleged in the complaint at the price alleged, whereas the plaintiff's evidence showed a lesser number of boxes sold at a lower price. This court made a reduction in the verdict accordingly. Not only was there error on the part of the trial judge in submitting the case as alleged in the pleadings, but, the claim being a liquidated one, the court was able to determine with absolute certainty that there was no evidence to support it "in its entirety", and likewise was able to ascertain the exact amount to which the plaintiff was entitled.
British Empire Ins. Co. v. Hasenmayer, 90 Or. 608,178 P. 180, was an action to collect the balance due on a subscription to corporate stock — a liquidated claim — in which we approved the action of the court below in setting aside a verdict of $1.00 for the plaintiff because it was not and could not be supported by either the evidence or the pleadings.
We think that no discussion is necessary to show that none of these cases tend in any way to support the proposition that either this court or the Circuit Court is authorized to declare that in a case like this the evidence does not support the verdict "in its entirety" simply because the court thinks that the verdict is too large.
Our attention is also called to Shives v. Chamberlain,168 Or. 676, 687, 126 P.2d 28, a malpractice case, in which the court said, in answering a complaint that the verdict was excessive:
"As to the contention that the verdict is excessive and the result of passion or prejudice on the part of the jury, while we fully realize that it is a *Page 105 large verdict, we cannot affirmatively say that there is no evidence to support it in its entirety."
This language does seem by implication to be in accord with the defendant's theory. It may be that here we find the birth of the notion that a verdict for unliquidated damages for a single wrong (there being no separate and clearly distinguishable items of the claim to which separate and distinguishable items of evidence apply, as in Lyons v. Browning for example), can be split up by the court, as it were, into separate verdicts, one of them said to be supported by the evidence and the other to have no such support. At all events, the statement is dictum, and its implication is disapproved.
(3) Passion and Prejudice Prior to the oral argument we asked counsel to brief the following question:
"Can a valid distinction be made with respect to the application of Article VII, Section 3, between the power to grant a new trial on the ground of damages which are merely excessive and on the ground of excessive damages appearing to have been given under the influence of passion and prejudice?"
The statutory grounds for granting a new trial are set forth in § 5-802, O.C.L.A., and include the following: "(5) Excessive damages, appearing to have been given under the influence of passion or prejudice; (6) Insufficiency of the evidence to justify the verdict or other decision * * *". Before the adoption of Art. VII, § 3, it was held that either of these subdivisions constituted a grant of authority to the trial court to set aside an excessive verdict. Adcock v. Oregon R.R. Co., 45 Or. 173,181, 182, 77 P. 78. And see Hust case, 180 Or. 436. Since the adoption of the amendment it has been directly *Page 106 ruled that the power to set aside a verdict upon the ground stated in subd. 5 of § 5-802, O.C.L.A., has been taken away by the amendment. Timmins v. Hale, supra, 122 Or. 43. To the same effect are McCulley v. Homestead Bakery, Inc., 141 Or. 460,465, 18 P.2d 226; Pierce v. Northern Pacific Railway Co.,127 Or. 461, 472, 271 P. 976, 62 A.L.R. 644; Noble v. Sears,122 Or. 162, 170, 257 P. 809; Hanson v. Johnson Contract Co.,117 Or. 541, 543, 244 P. 875; Buchanan v. Lewis A. Hicks Co., supra, 66 Or. 512.
On the other hand, the court has on several occasions indulged in dicta which it is claimed cast doubt upon the correctness of these rulings. See Weatherspoon v. Stackland, supra, 127 Or. 453; Malpica v. Cannery Supply Co., 95 Or. 242, 248,187 P. 596; Sigel v. Portland Ry. L. P. Co., 67 Or. 285, 290,135 P. 866.
Since the submission of the case the court has reached the conclusion that it cannot say, either from the size of the verdict itself or from any incident of the trial, that the damages were given under the influence of prejudice and passion. We therefore deem it inappropriate to discuss the question above stated and leave for future consideration, in a case where that question shall be directly involved, whether we should adhere to our previous decisions holding that Subd. 5 of § 5-802, O.C.L.A., has been repealed by Art. VII, § 3, of the Constitution.
(4) Punitive Damages On the argument it was suggested from the bench that the court might have the power to interfere with a verdict for exemplary damages even though it lacks that power with respect to compensatory damages. The basis of this suggestion seems to be that in awarding exemplary damages a jury acts something like a judge *Page 107 in passing sentence on the defendant in a criminal case; and, further, that, since the allowance of such damages is committed entirely to the discretion of the jury, an excessive award amounts to such an abuse of discretion as the court has the power to correct.
What are called exemplary, vindictive or punitive damages are, as the terms indicate, assessed against the defendant in a tort action whose acts are characterized by malice or other circumstances of aggravation, as an example to deter others from committing a like offense and to punish the defendant. Such damages are allowed over and above those which fully compensate plaintiff for his loss, including injury to his feelings, mental anguish, humiliation and the like. It has been vigorously objected in the past, and in a few jurisdictions in this country it is still maintained, that there can be no such thing as damages for tort beyond full reparation. And it has been said that the doctrine has its origin in a misreading of the English cases in which the judges, in their charge to the jury, or in ruling on motions to set aside verdicts, referred to the damages as "exemplary" — not to indicate that they included or could include anything beyond compensation, but because, being large, they would, at the same time as they compensated the plaintiff, operate as an example to deter others. The question was vigorously debated three-quarters of a century or more ago by Professor Greenleaf (2 Greenleaf on Evidence (14th ed.) § 253, Note 2), Professor Sedgwick (1 Sedgwick on Damages §§ 347-354), and by some of the courts, conspicuously by Foster, J., in his scholarly and very lengthy opinion in Fay v. Parker,53 N.H. 342. Mr. Justice Foster asks: "What kind of a civil remedy for the plaintiff is the punishment of the defendant?" and he answers: "The idea is wrong. It *Page 108 is a monstrous heresy. It is an unsightly and an unhealthy excrescence, deforming the symmetry of the body of the law." (53 N.H. 382.) Another court has characterized the doctrine as "a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine." Haines v. Schultz, 50 N.J.L. 481,484, 14 A. 488. Mr. Justice Stone in Pizitz Dry Goods Co.v. Yeldell, 274 U.S. 112, 71 L.ed. 952, 47 S. Ct. 509, 51 A.L.R. 1376, called the distinction between punitive and compensatory damages "a modern refinement".
The allowance of exemplary damages in a proper case is approved in Oregon. Harper v. Interstate Brewery Co., 168 Or. 26,51, 120 P.2d 757; Coates v. Slusher, 109 Or. 612, 631,222 P. 311; Bingham v. Lipman, 40 Or. 363, 370, 67 P. 98; and in most of the other states of the union. McCormick on Damages § 78.
In the trial of a case where exemplary damages are sought the judge determines as a matter of law whether there is evidence of malice, and, if he decides that there is, the assessment of such damages is committed to the discretion of the jury. Choliav. Kelty, 155 Or. 287, 291, 63 P.2d 895; Martin v. Cambas,134 Or. 257, 262, 293 P. 601; Gill v. Selling, 125 Or. 587,591, 267 P. 812. The Supreme Court of the United States says: "This has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." Day v. Woodworth, 13 How. 363, 371, 14 L.ed. 181. And the jury has entire discretion to refrain from giving any punitive damages at all even though all the elements of malicious and damaging misconduct may have been established. McCormick on Damages 296, § 84, 4 Sedgwick on Damages 2660, § 1318. *Page 109
The case which, as Professor Sedgwick says (Vol. 1, 689, § 350), is generally cited as establishing the rule of exemplary damages in its present form, is Huckle v. Money, 2 Wils. 205, (1763). Lord Chief Justice Pratt, afterwards Lord Camden, in refusing to set aside the verdict as excessive, said "that it is very dangerous for the judges to intermeddle in damages fortorts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages." He thus explained the nature of the court's duty when it undertook to pass upon a motion for a new trial:
"In all motions for new trials, it is as absolutely necessary for the court to enter into the nature of the cause, the evidence, facts, and circumstances of the case, as for a jury; the law has not laid down what shall be the measure of damages in actions of tort; the measure is vague and uncertain, depending upon a vast variety of causes, facts, and circumstances; torts or injuries which may be done by one man to another are infinite; in cases of criminal conversation, battery, imprisonment, slander, malicious prosecutions, etc. the state, degree, quality, trade, or profession of the party injured, as well as of the person who did the injury, must be, and generally are, considered by a jury in giving damages. The few cases to be found in the books of new trials for torts, shews that courts of justice have most commonly set their faces against them; and the courts interfering in these cases would be laying aside juries. Before the time of granting new trials, there is no instance that the judges ever intermeddled with the damages."
In our own time it would appear that the courts are even more reluctant to set aside verdicts for exemplary than for compensatory damages. It is not done except *Page 110 "in cases of such abuse as indicates the influence of passion or prejudice." McCormick on Damages, 296, § 85. The same author at p. 278, § 77, says that "the criterion to be applied by the judge in setting aside or reducing the amount is concededly a vague and subjective one." In 4 Sedgwick 2670, § 1325, the author says: "In cases where exemplary damages are allowable, verdicts are rarely set aside. The obvious reason for this custom is that it is not easy to decide that such a verdict is so large as to be against evidence." See 1 Sedgwick 755, § 388. Nevertheless, "The power of the court to set aside a verdict for exemplary damages is the same power, and is exercised upon the same principle, as in any case of excessive verdict." 1 Sedgwick 756, § 388.
In our judgment no valid distinction, so far as the present question is concerned, can be drawn between compensatory and exemplary damages. It is impossible for the jury to arrive at the amount to be assessed against the defendant by way of punishment without considering and deciding questions of fact. It must determine first whether there was malice, and, if so, the degree of that malice, both of them questions of fact. It may give consideration to all those elements enumerated in Huckle v.Money, supra, and in doing so it necessarily determines what are the facts. See 4 Sedgwick 2659, § 1318. In fixing the amount of damages the jury, of course, may abuse the discretion committed to it. But in actions for tort, in general, one of the incidents is "that a very large discretion is given to the jury as to damages" (Pollock, The Law of Torts (13th ed.) 196), so that, if a verdict for exemplary damages may be set aside for abuse of the jury's discretion, then the same power would exist as to all those classes of *Page 111 actions in which, as Lord Camden said, "the law has not laid down what shall be the measure of damages"; with the result that by the device of using some such language as "correcting an abuse of discretion" the prohibition in Art. VII, § 3, against re-examination by a court of a fact tried by a jury would be effectually nullified.
It is quite true that the infliction of punitive damages in a civil action bears a resemblance to a criminal penalty, so much so that one of the reasons given against the doctrine by its opponents is that it would sanction double punishment and violate, at least in spirit, constitutional provisions against double jeopardy. Fay v. Parker, supra. And see "The Indiana Doctrine of Exemplary Damages and Double Jeopardy", 20 Ind. L.J. 123. But, while considerations of this kind serve perhaps to emphasize to some extent the anomalous character of exemplary damages, they are irrelevant to the question before us. They do not alter the essential nature of the jury's task. Under a system such as ours, where the court responds to the law and the jury to the facts, it would be difficult indeed to say that a question which for centuries has been submitted to the decision of a jury is other than a question of fact. And the reluctance of the courts, having power to do so, to interfere with the jury's decision, gives added weight to this conclusion.
* * * In ancient times, as is recounted in 1 Holdsworth's History of English Law (3d ed.) 337-347, when a jury brought in what seemed to be a false verdict the court examined by means of an attaint jury whether it was correct. If the original jury was convicted by the attaint jury they were imprisoned for a year, forfeited *Page 112 their goods, became infamous, their wives and children were turned out, and their lands laid waste. See, also, Campbell v.Sutliff, 193 Wis. 370, 376, 214 N.W. 374, 53 A.L.R. 771; dissenting opinion of Dean, J., in Smith v. Times PublishingCo., 178 Pa. 481, 36 A. 296. The barbarity of this practice finally led to its abandonment. But "It was obvious", says Holdsworth (p. 346) "that some regular method of controlling the verdicts of juries was essential to the proper working of the jury system. This regular method of control was found in the growth of the practice of granting new trials if the verdict was clearly contrary to the weight of evidence." And, again, he says in speaking of the value of the jury system as it developed in England, "the jury would never have won this popularity, it would never have attained these results, if it had not been controlled by the action of the courts, the legislature and the Council." (p. 321)
The guaranty of the right to jury trial in suits at common law, incorporated in the Bill of Rights as one of the first ten amendments of the Constitution of the United States, was interpreted by the Supreme Court of the United States to refer to jury trial as it had been theretofore known in England; and so it is that the federal judges, like the English judges, have always exercised the prerogative of granting a new trial when the verdict was clearly against the weight of the evidence, whether it be because excessive damages were awarded or for any other reason. The state courts were conceded similar powers. 46 C.J., New Trial, §§ 136-141; 39 Am. Jur., New Trial, § 129. In this state these powers were written into the statute, § 5-802, O.C.L.A., Subds. 5 and 6; and up to 1910, when the people adopted Art. VII, § 3, of our Constitution, there was *Page 113 no state in the union, so far as we are advised, where this method of control of the jury did not prevail.** Oregon today occupies in this respect a lonely eminence. Whether it be a "bad eminence" it is not for the courts to say. If the removal from the judges of this power to correct a miscarriage of justice by ordering a new trial constitutes a blow to the jury system, there is nothing a court can do about it. "It must never be forgotten", as Chief Justice John Marshall said in McCulloch v. Maryland, 4 Wheat. 316, 406-407, 4 L.ed. 579, 602, "that it is a constitution we are expounding." Whatever our individual opinions may be about the policy involved in Art. VII, § 3, we have no right or authority to subvert its obvious purpose or to refuse to apply its provisions to the full extent of their evident meaning. The people may be misled; they may, through ill-considered legislation, bring on themselves evils worse than those they hope to cure; but it is not the business of a court to attempt to save them from the consequences of what it may conceive to be a misguided policy by ignoring or misinterpreting their expressed will. This is so even though we should think that a system of trial by jury in which the judge is reduced to the status of a mere monitor cannot be expected to survive.
The judgment is affirmed.
* While the opinion of Mr. Justice Kelly appears in the Reports as the opinion of the court it is not entirely accurate to speak of it as the prevailing opinion. Mr. Justice Kelly, Mr. Justice Belt, and Mr. Justice Rossman agreed that the verdict was excessive and that the court had the power to reduce it; Mr. Justice Campbell, while concurring with them on the question of the court's power, thought that the verdict was not excessive. Mr. Justice Bailey wrote an opinion concurred in by Mr. Chief Justice Rand and Mr. Justice Bean, holding that the Supreme Court had no power over the question of excessive damages. Since a majority of the court did not express themselves as believing that the verdict was excessive, all that was said in the opinion for the court about the courts' power might well be deemed unnecessary to the decision. It was this which led us to observe in the Hust case (180 Or. 417) that Johnson v. Ladd cannot be said to settle the question whether the Supreme Court, in a case free from error, may reduce a verdict thought to be excessive.
** With the apparent exception of Mississippi. See, Lewis v. Black, 27 Miss. 425.