Belknap v. Boston & Maine Railroad

49 N.H. 358

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1870
• Status: Published

Opinion

Sargent, J.

The rule for exemplary damages is, that they are not to be given except in cases of fraud, malice, gross negligence or oppression; that where neither of these is found, the damages are to be confined to compensation for the injury. But when either of these elements mingles in the controversy, the law,, instead of adhering to the system or even the language of compensation, adopts a wholly different rule, and permits the jury to give what it terms punitory, vindictive, or exemplary damages ; in other words, blends together the interests of society and of the aggrieved individual, and gives damages, not only to recompense the sufferer, but to punish the offender. Sedgw. on Damages, *38, and cases.

It is not easy to see from the evidence as reported in this case, what ground for exemplary damages there was ; but, perhaps, it may and should be assumed that there was some evidence, supposed to bear upon this question by the court, as it seems that the court gave full instructions upon the subject, though the objection was made that there -was no evidence on which they could properly be based; and it is claimed that even under the instructions of the court, and upon tl: e facts stated, the damages are so excessive that the verdict ought to be set aside for that cause alone.

It is suggested in Hill v. New Haven, 27 Vt. 501, 512, that where the motion is to set aside a verdict as being contrary to or unsupported by the evidence in the case, the consideration of that motion should be by the court at the trial term, where the cause was heard, and Poland, C. J., says: “In our judgment, the power to grant new trials for this cause should be confined to the court before which the case is tried, who saw the witnesses and heard them testify, and should not be entrusted at all to another tribunal, who have only a meager outline of the case afforded by the judge’s notes of the evidence taken at the trial.” It is no doubt within the discretion of the judge at the trial term to set aside the verdict, if it is entirely unsupported by the evidence; or he may refuse to do so upon motion, and in either case we should not reverse his decision, unless he expressly reserved that question of discretion.

But where the claim is that the verdict is in favor of the right party, but is excessive in amount, there might be more reason why the judge at the trial term might desire to consult with the other members of the court and obtain their views of the subject. It is more a question of judgment, and we think may often be properly reserved for the consideration of the whole court. The motion in this case was properly made at the trial term to set aside the verdict on the ground that the damages were excessive, and that question has been specially reserved for the consideration of the whole court by the judge who tried the cause.

Sedgwick, in his work on damages (5th Ed.), p. 707, says : “ The court again holds itself at liberty to set aside verdicts and grant new trials, in that class of cases, where there is no fixed legal rule of compensation, whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance;” and numerous authorities are cited which sustain that position.

In Massachusetts, that has long been settled to be the law. In Coffin v. Coffin, 4 Mass. 1, in an action of slander, the court refused to set aside the verdict of $2500, saying: “ Before we can set aside this verdict, on account of these damages, we must infer from their magnitude that the jury acted intemperately, or were influenced by passion, prejudice, or partiality.” The same doctrine was announced in a similar case, in Clark v. Binney, 2 Pick, 121. And where a sheriff’s jury had assessed land damages caused by the location of a turnpike at a greater rate than $900 per acre, and the court of sessions rejected that verdict because the damages were excessive, the supreme court refused to issue a mandamus to the sessions to allow and record the verdict. Com. v. Norfolk, 5 Mass. 435.

In Lincoln v. Hapgood, 11 Mass. 350, it was alleged that the damages were inadequate, but the verdict was not set aside, though the general question is considered. And in actions of slander, it is said that the court must be satisfied that the rule of fair compensation has been departed from; that passion, not reason, has decided it; that some undue influence has swayed the minds of the jury. Shute v. Barrett, 7 Pick. 82.

A new trial will be granted where the damages ai*e too small as well as when they are excessive. Taunton Manfg. Co. v. Smith, 9 Pick. 11.

• To justify the interference of the court, the damages must be manifestly exorbitant; and so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken views of the merits of the case. Worster v. Canal Bridge, 16 Pick. 541; Treanor v. Donohoe, 9 Cush. 228 ; Shaw v. Boston & Worcester R. R., 8 Gray 45.

So in New York, the question has been pretty fully considered. McConnell v. Hampton, 12 Johns. 234, was an action for assault and battery and false imprisonment, with a verdict for plaintiff for $9000 damages. The defendant being a man of education and worth $60,000, was in command of the U. S. army at Burlington. Plaintiff came to him to make some communication concerning the enemy, when defendant had him arrested and confined in the guard-house from Tuesday till Sunday. Upon a motion for a new trial, on the ground that the damages were excessive, Thompson, C. J., said: “ To refuse a new trial in this case would, in effect, be saying that a new trial ought never to be granted in actions of this description. Although the defendant is a man of very lai-ge fortune, the plaintiff’s injury is not thereby enhanced. Under all the circumstances, I am inclined to think it will be a discreet exercise of the power of granting new trials to send this cause back for the consideration of another jury-”

And in Coleman v. Southwick, 9 Johns. 45 ; and in Southwick vStevens, 10 Johns. 443 ; and in Sargent v. -, 5 Cow. 106, 119,— it is held that to warrant the court in interfering, the damages must be so very excessive as to warrant an inference of prejudice, partiality, passion, or corruption in the jury; while in Collins v. Albany & S. R. R. Co., 12 Barb. 492, it is said that the right of the court thus to interfere, when the damages found by the jury are clearly excessive, though it has always been cautiously exercised, has never been denied. Such a right is absolutely necessary to the safe administration of justice, and ought, in all proper cases, to be asserted and exercised. That when the damages found by the jury are either so large or so small as to force upon the mind of any man familiar with the circumstances of the case, the conviction that, by some means, the jury have acted under the influence of a perverted judgment, ic is the duty of the coui’t in the exercise of a sound discretion to grant a new trial.

In Clapp v. Hudson River R. R. Co., 19 Barb. 461, the same doctrines are reiterated; and, in both these cases, the verdicts were set aside as excessive. In the last case, the court say : “ More injustice has been done by refusing to interfere with verdicts which were confessedly extravagant, than by any indiscreet exercise of the power on the part of the court. See, also, Murrey v. Hudson R. R. Co., 47 Barb. 196, and cases cited.

It is said in Travis v. Barger, 24 Barb. 614, that in cases of criminal connection and seduction, the court have never exercised this power; although it is conceded that they possess it. To the same effect is Sedgw. on Dam. 709.

The same general principles are followed in England, and in the other states of our Union. See authorities cited in Sedgw. on Dam. 706, 7, 8 : also, cases cited in Collins v. Railroad, 12 Barb, supra; Rand v. Redington, 13 N. H. 76, and cases cited.

In the light of these well-established principles, let us examine the case before us. The plaintiff was in no way injured or maltreated in his person; no bruises, wounds, contusions, or marks of any kind were left upon him ; no blows were struck; no force applied, except such as was necessary to remove him from the cars in the easiest manner possible. This caused no pain or bodily suffering whatever at the time or afterwards.

He was not insulted by the use of'profane, vulgar, or ungentlemanly language, but, on the contrary, the plaintiff testifies that the conductor used no ungentlemanly language, and was as gentle as he could be. Plaintiff’s clothing was not injured in any way, nor -was any property of his lost, destroyed or in any way damaged by his being removed from the cars.

After considerable discussion with the conductor, the plaintiff was notified that he must either pay his fare or leave the cars, both of which he refused to do, knowing that the result must be, that he would be removed ; and the plaintiff himself does not pretend in his testimony that any more force was used than just what was necessary to remove him in the easiest manner possible. It is said that the public attention was called to the matter, and that there were circumstances of indignity and unfavorable notoriety, and disgrace, attending such a removal, which are matters of great aggravation. But these Avere nothing more than must be attendant upon any similar case, and nothing more than the plaintiff kneAv beforehand, must necessarily attend and accompany such an act, and all Avhich he chose to meet and face, and to risk, rather than pay some dollar and a half for fare to Exeter. If he had offered to pay his fare and the company had refused it, then he would have had no alternative but to leave voluntarily or be removed. He could have paid his fare undci protest, and have sued the company for the breach of their contract to carry him to Exeter upon his ticket, and have tried the question of right in that Avay just as Avell; or he could have left the car Avithout force or compulsion, after his notice to leave, without damaging his rights in the least. He could in either of these Avays have avoided all the notoriety and publicity of which he noxv complains, without sacrificing his lights in the least. But he evidently sought to be made as much of a martyr as possible.

The real damage to the plaintiff was the loss of three hours’ time. He started to go home at twelve o’clock, noon ; was put off the cars at Melrose, some seven or eight miles from Boston ; returned to Boston, the fare being about twenty cents, and left for home on the three o’clock P. M. train. Whether he procured a dinner or lunch, or neither, does not appear. He should have reached home at íavo o’clock, but did not arrive until five P. M. He does not offer to prove any special damage, such as loss of business, or the opportunity to make good bargains, or anything of that kind. On the score of compensation, then, he is entitled to pay for three hours’ time and his necessary expenses ; and for that, the road has confessed judgment for $5, probably a fair equivalent for the time and expense. All the other Avrongs and indignities he could have avoided by the payment of his fare to Exeter, and have saved his three hours’ time and expenses besides, and not have waived or affected his right against the road, to have sued them for damages.

What, then, ought this plaintiff to recover as compensation for all his injury proved in this case ? We must remember that in considering this question of actual damage, of compensation for actual injury, it is immaterial what may be the character, standing, condition or means of the defendant. The rule of damages is compensation for the plaintiff’s injury; that is all, and that Avould be the same, whether the defendant be a railroad or a private individual; or whether that private individual were rich or poor. The.question is not Iioav much the defendant is able to pay, but what is a fair compensation to this plaintiff for all the injui’y he has suffered ? That injury is the same, whether the defendant is the richest railroad or the poorest individual in the community. What is the plaintiff’s injury for which he is to receive compensation in damages ? And what amount in damages will compensate him for that injury 9 These are the only questions to be settled, so far as determining the actual damage which the plaintiff is entitled to recover. If this defendant had been a private individual, no doubt most juries would have held that under the circumstances of this case, enough had been confessed in the suit, to meet, all the defendant’s actual injury; but if some juror should stick for a higher verdict than that, we think it would trouble him to give any valid reason for going as high as $25.

In regard to the question of exemplary damages, though upon the evidence, there is great doubt whether there should have been any allowed at all, yet if any were to be allowed the rule for assessing it Avould be very different from the one we have been considering. In that case the jury undertake, first to give the plaintiff damages, as a compensation for his injury, and second they undertake also to punish the offender for the wrong he has done, and Avhen that element is introduced it becomes proper to inquire into the condition and circumstances of the defendant, because what would be a severe punishment for a poor man by Avay of fine or exemplary damages, might not be felt by one that was rich. What would be sufficient as damages, by way of example and of punishment, for a day laborer, would be nothing by way either of example or as a punishment for this defendant, as a corporation. Not only the ability of defendant, but the motives and intentions accompanying the act, the malice or oppression exhibited, the wrong and injustice of the act, may be inquired into, with a view to fix the proper measure of punitory or exemplary damages.

That the actual damages Avhich plaintiff suffered ; that his injury for Avhich he is to receive compensation, was anything in amount like the sum found by the jury, viz: $435.00 seems simply absurd. We think it evident that the jury Avere affected by some partiality or prejudice from some cause, and that their verdict ought for that reason to be set aside.

In assessing the exemplary damages, they had a right to adopt a different rule from that applied in assessing the actual damages, yet it is fair to presume that in assessing the exemplary damages, they Avere affected by the same improper influences, and in the same proportion as in case of the actual damages.

The question is, whether the verdict must be wholly set aside, or, whether it can be reduced to what is reasonable and the plaintiff allowed to take judgment for that amount. We find the latter course has oftener been adopted in practice, than the former. In Sedgw. on Dam. (5 Ed.) 709, it is said “where the jury have given such excessive damages, that the court feel bound to set aside the verdict, they will, instead of simply ordering a new trial, give the plaintiff the option of reducing the verdict to the sum which the court considers reasonable, and on his remitting the excess, will deny the motion for a new trial, and this in actions for tort, as well as upon contracts.”

This has been a very common practice in this country and in England. It was so in Armytage v. Haley, 4 Adol & Ellis N. R. (4, Q. B.) 917, where one farthing damages was given; the court ordered a new trial, unless the defendant would consent to increase the damages so as to cover the surgeon’s bill.

In Diblin v. Murphy, 3 Sandf. (N. Y.) 19, the court ordered the verdict set aside, unless the plaintiff, within ten days, would stipulate to reduce the verdict from $1,500 to $600.

A similar order was made in Blunt v. Little, 3 Mason 102, by Judge Story. The verdict of $2,000, was to be set aside unless the plaintiff remit $500 of his damages.

In Collins v. Albany & S. R. R. Co., 12 Barb. supra, the verdict for $11,000, was ordered to be set aside, unless plaintiff should reduce it to $5,000, in twenty days.

To the same effect are Lambert v. Craig, 12 Pick. 197 ; Doyle v. Dixon, 97 Mass. 208, and cases cited.

In Texas the power of reducing the verdict by the court, has been limited to those cases where the measure of damages is matter of law, upon the ground that in other cases, the court has no right to substitute its opinion for that of the jury. Thomas v. Womack, 13 Texas 580.

While in Louisiana it is held that the court have power to reduce the verdict, to what is reasonable, and to render judgment absolutely and unconditionally for the reduced amount. Black v. Carrolton R. R. Co., 10 Lou. Ann. 33.

In this case our judgment differs so very materially from the finding of the jury, as to the proper amount of damages, that we might hesitate to fix the amount of damages, to which we think the plaintiff' entitled. But we are not compelled to rely upon our own judgment alone, for this case has once before been tried by a jury, upon a declaration which was defective to be sure, and for that reason, judgment was arrested. But the declaration contained one count in tort, and the court instructed the jury, that they might give exemplary damages, if the evidence in their judgment warranted it. Thus the whole question was submitted to the jury, and their verdict taken, -which verdict, we think, may be a proper guide for us, in this case. That verdict was rendered in 1868, when the jury were, perhaps, much less likely to be prejudiced, and much more likely to be impartial, than at the present time, if any attempt has been made by those interested, to affect the public sentiment on that subject. For there are other cases pending, upon the docket of this county against this defendant, growing out of this same transaction, the plaintiffs in which have been important witnesses in this case.

That first verdict was for the sum of $200, and though that a nount might seem large, we think it safer to adopt that verdict as the true rule of damages, than to make any estimate of our own.

If, therefore, the plaintiff elects to reduce the verdict to $200, judgment may be rendered thereon, for that amount, with full costs of suit. Plaintiff to make his election and notify clerk on or before the — day of-next.

To the other questions in the case we have given no attention. We see no objection to the rulings made at the trial.