[513]*513DURHAM, J. pro tempore
Defendants appeal a jury verdict entered against them for $2,552,566. They make multiple assignments of error. We affirm.
Plaintiff filed three claims against defendant Weyerhaeuser Company (Weyerhaeuser): malicious prosecution, intentional infliction of severe emotional distress and defamation. The jury found for plaintiff and awarded $900,000 noneconomic damages, $2,566 economic damages and $1,500,000 punitive damages against Weyerhaeuser on those claims. The jury found defendant Hoff hahle on plaintiffs claims of intentional infliction of severe emotional distress and defamation and awarded $100,000 noneconomic damages and $50,000 punitive damages against Hoff.
In its first two assignments of error,1 Weyerhaeuser argues that the trial court erred in denying its motions to withdraw from the jury the issue of its vicarious liability for Klamath County Sheriff Deputy Wilson’s conduct. We review the evidence in the light most favorable to plaintiff to determine if there was sufficient evidence to submit the issue to the jury. Turman v. Central Billing Bureau, Inc., 279 Or 443, 445, 568 P2d 1382 (1977).
Weyerhaeuser owns and operates a railroad as part of its business in Klamath County. Plaintiff worked for Weyerhaeuser for 12 years as a member of a section crew on the railroad. Defendant Hoff is a security supervisor, whose duties include investigating thefts of company property. Weyerhaeuser and the Klamath County sheriff’s office entered into a contract under which Klamath County provided “Forestry Patrol and field investigation on Weyerhaeuser’s property.” Klamath County Sheriff Deputy Wilson carried out the county’s responsibilities under the contract. Weyerhaeuser also hired Green, a private security guard, to live on its property and to provide 24-hour security.
On July 6,1988, plaintiff asked Hoff if he could “get some railroad ties.” Hoff told him it was “no problem,” and instructed him to inquire of the company how much they [514]*514would cost. The next day, plaintiff asked Hoff if he could use some company equipment to pick up the ties, and Hoff said “that would be fine.” On July 15,1988, Green informed Hoff that plaintiff had delivered railroad ties to a cattle ranch. Hoff reported to Walt Barnes, his immediate supervisor, and to Steve Kirk, a security supervisor, that he suspected that plaintiff had stolen the ties delivered to the ranch. Kirk then contacted Wilson and asked him to investigate. While Wilson was interviewing the owner of the ranch, he told the owner that plaintiff had stolen 600 ties and sold them to others “around the country.” While being interviewed by Hoff, two of plaintiffs co-workers said that they had helped plaintiff load some ties, and that plaintiff had told them that he intended to pay for the ties. Hoff did not tell his supervisor or Wilson about the information.
Shortly after his investigation began, Wilson went to plaintiffs home and told him that “it didn’t look good” and that if he would admit guilt, he would not be arrested in front of his family. Plaintiff claimed that he had permission to take the ties. On August 1, plaintiff, Hoff, Barnes and a union representative met. Plaintiff admitted taking some ties but repeatedly maintained that Hoff had given him permission. After the meeting, Barnes met with his supervisor, McClure, and told him that plaintiff “had taken ties, and that he really offered no excuses or reasons for taking the ties without paying for them.” Based on that information, Weyerhaeuser terminated plaintiffs employment.
At about the same time, Wilson issued plaintiff a criminal citation for theft in the second degree, and Kirk asked the district attorney to prosecute plaintiff. Wilson’s report to the district attorney did not disclose plaintiffs contention that Hoff had given him permission to take the ties with the understanding that he would pay for them at a later time. Plaintiff was indicted by the Klamath County grand jury. Subsequently, the district attorney moved to dismiss the indictment after learning that some of the ties that plaintiff had been accused of stealing did not belong to Weyerhaeuser, and that plaintiff had paid for them.
There was also evidence in the record that Hoff and other employees at Weyerhaeuser had ill will toward plaintiff. An employee testified that Hoff told him, sometime in 1986, [515]*515that ‘ ‘there’s more than one way to get rid of [plaintiff]. ’ ’ Kirk testified that a Weyerhaeuser manager who was involved in the investigation said, “I don’t care what the court system does or anything else, that I — Iwillhavetheman’sjob.” Kirk also recalled in his testimony that Hoff had come to him after the charges against plaintiff were dropped and said that he had caught plaintiff in possession of marijuana a couple of years ago, that plaintiff was a drug addict, and that he wanted plaintiff “gone.” Hoffs foster son testified that he overheard Hoff tell his wife that plaintiff was a drug user who had a methamphetamine lab in his house, and that he was always drunk at work. Plaintiff denied those allegations at trial.
Weyerhaeuser asserts that the trial court erred when it submitted the issue to the jury of whether Wilson was “its agent when he engaged in the conduct the jury ultimately found to be tortious.” Weyerhaeuser’s vicarious liability for Wilson’s conduct depends on whether Wilson was an “employee” of Weyerhaeuser and committed the alleged tortious acts within the scope of his employment.2 Stanfield v. Laccoarce, 284 Or 651, 654, 588 P2d 1271 (1978). Although the parties agree that Wilson was an employee of the county, in addition, he could be a “loaned” employee of Weyerhaeuser, if Weyerhaeuser had the right to exercise control over the manner and means by which Wilson performed his duties. See Penrose v. Mitchell Bros., 24(5 Or 507, 512, 426 P2d 861 (1967); Nordling v. Johnston, 205 Or 315, 332, 283 P2d 994, 287 P2d 420 (1955); Nichols v. Baggarley, 79 Or App 505, 508, 719 P2d 914 (1986).
The contract between Klamath County and Weyerhaeuser says:
“[Weyerhaeuser] may increase, decrease or alter work to be done and materials furnished hereunder, and any changes occasioned thereby in amounts to be paid hereunder shall be agreed to in writing prior to performance of such work or furnishing such materials. * * * All work or materials furnished hereunder shall at all times be subject to the inspection and approval of [Weyerhaeuser].”
[516]*516That language could be construed to indicate that the parties intended that Wilson was the employee of Klamath County only and Weyerhaeuser is not hable vicariously for Wilson’s conduct, as defendants argue. However, because the provision says that Weyerhaeuser has the right to “increase, decrease or alter the work to be done and the materials furnished’ ’ and the right to inspect and approve the work, it is also subject to the interpretation that Weyerhaeuser had the right to control the manner and means that Wilson used to accomplish the results sought by Weyerhaeuser. Those alternative interpretations demonstrate the ambiguity in the agreement, and the meaning of an ambiguous contract is an issue to be decided by the trier of fact. David M. Scott Const. v. Roush, 273 Or 877, 880, 544 P2d 162 (1975).
Also, what the parties intended under the contract often is discernible by their conduct in carrying out the terms of the contract. See Tarlow v. Arntson, 264 Or 294, 300, 505 P2d 338 (1973). Wilson testified that Kirk asked him to investigate and told him who to contact. Wilson also testified that he kept Kirk updated on the progress of his investigation and gave him a copy of his report. Kirk testified that Weyerhaeuser had “control” of the investigation and that, whenever it had a problem to investigate, the deputy was at his “disposal.” There was also a handwritten statement by Wilson that said that the “reason [the criminal prosecution] was dropped was per Steve Kirk’s decision.” We conclude that from the entire evidentiary record, the jury could have found that Weyerhaeuser had the right of control over Wilson’s conduct such as to constitute a master-servant relationship. See Meskimen v. Larry Angeli Salvage Company, 286 Or 87, 592 P2d 1014 (1979).
In their third and fourth assignments of error, both defendants contend that the trial court erred in denying their motions for directed verdict on plaintiffs claims for intentional infliction of severe emotional distress. They argue that plaintiff did not present any evidence to prove that defendants’ conduct was an extraordinary transgression of the bounds of socially tolerable conduct. To prove a claim for intentional infliction of severe emotional distress, plaintiff must prove that:
[517]*517“(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant’s acts were the cause of the plaintiffs severe emotional distress, and (3) the defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” Sheets v. Knight, 308 Or 220, 236, 779 P2d 1000 (1989).
It is a question of law whether, viewing the evidence in the light most favorable to plaintiff, defendants’ conduct constitutes “extraordinary conduct which a reasonable jury could find beyond the farthest reaches of socially tolerable behavior.” Hall v. The May Dept Stores, 292 Or 131, 137, 637 P2d 126 (1981).
In Hall v. The May Dept. Stores, supra, the plaintiff was suspected of stealing money and was interrogated based on “scant” evidence. The court said that
“the jury could find that [the security officer] knew that he did not have ‘proof of plaintiffs guilt, that he knew he did not have evidence sufficient to have her arrested, that he nevertheless told her that he had sufficient proof to have her arrested and charged with embezzlement, and that he shouted at plaintiff and pounded the desk, referring to sheets of paper which he did not explain to her.” 292 Or at 141.
From this evidence, the court held that the jury could infer that the security officer was engaging in a deliberate and systematic tactic to threaten and frighten the plaintiff into a confession and to make her an example to other employees. The court said that,
“if a jury, drawing all possible inferences favorable to plaintiff, found an intentionally oppressive method of browbeating an employee into a confession, it could also decide that this method went beyond the outer bounds of socially tolerable employer practices.” 292 Or at 142.
Furthermore, in Woods v. First American Title Ins. Co., 102 Or App 343, 348, 794 P2d 454 (1990), rev den 311 Or 151 (1991), we said that
“ [falsely accusing someone of being aliar, a thief and a fraud before a third person, knowing that the accusations are not true, and persuading a police officer to harass the accused person on the basis of those assertions, constitute more than every-day rude behavior.”
[518]*518We concluded that the plaintiffs complaint stated a claim for intentional infliction of severe emotional distress.
Here, the crux of plaintiffs claims for intentional infliction of severe emotional distress is that employees at Weyerhaeuser intentionally and in bad faith made accusations that plaintiff had stolen the ties, despite having knowledge that he was given permission to take them and that he intended to pay for them. The jury could infer that Hoff knew that plaintiff had permission to take the ties, but that he, along with other Weyerhaeuser employees, triggered an unfounded criminal investigation to get plaintiff fired, to defame him, and to cause him to be prosecuted by the district attorney. We hold that a jury reasonably could find that defendants’ conduct exceeded the bounds of socially tolerable conduct under the circumstances. Therefore, the trial court did not err in denying defendants’ motion for directed verdict on plaintiffs claims for intentional infliction of severe emotional distress.
Next, Weyerhaeuser assigns as error the trial court’s denial of its motion to modify the judgment to reduce the amount awarded to plaintiff for noneconomic damages to $500,000 in accordance with ORS 18.560. The jury awarded plaintiff a total of $900,000 in noneconomic damages on his three claims against Weyerhaeuser.3 Plaintiff argues that, although ORS 18.560 limits his recovery for noneconomic damages to $500,000 per claim, he may recover more than $500,000 in noneconomic damages, because he prevailed on more than one claim. Weyerhaeuser argues that the limitation on damages in the statute means that the total award of noneconomic damages for all tort claims arising out of the same operative facts cannot be more than $500,000.
In construing statutes, our task is to discern the intent of the legislature. ORS 174.010; Mattiza v. Foster, 311 Or 1, 4, 803 P2d 723 (1990). We first look to the text of the statute to ascertain “what is * * * contained therein, not to insert what has been omitted, or to omit what has been inserted.” ORS 174.010; Sanders v. Oregon Pacific States [519]*519Ins. Co., 314 Or 521, 527, 840 P2d 87 (1992). If the meaning of the statute is not apparent on its face, we look to the statute’s context, and if that is not dispositive, then we examine its legislative history. PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993).
ORS 18.560 provides, in part:
“Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person * * *, the amount awarded for noneconomic damages shall not exceed $500,000.” (Emphasis supplied.)
The language of ORS 18.560 limits noneconomic damages to $500,000 in any “civil action.” We cannot ascribe a plain meaning to the phrase “civil action,” because “action” has been interpreted in a variety of ways. See East Side Mill Co. v. SE Portland Co., 155 Or 367, 372, 64 P2d 625 (1937). Likewise, the statute’s context is not dispositive and we find no express legislative history to indicate what the legislature meant by the phrase.4 In the absence of such evidence, we will consider the objective of the statute to determine the legislative intent. See State v. Parker, 299 Or 534, 540, 704 P2d 1144 (1985).
ORS 18.560 was enacted as part of the 1987 “Tort Reform Act.” Or Laws 1987, ch 774, § 6. According to the legislative history, the purpose of imposing a cap on non-economic damages was to stabilize insurance premiums and to decrease the costs associated with tort litigation. Minutes, House Judiciary Subcommittee, April 29, 1987, pp 11, 15. In the light of that purpose, we are persuaded that the modern definition of an “action,” adopted by the Supreme Court in Dean v. Exotic Veneers, Inc., 271 Or 188, 193, 531 P2d 266 (1975), best fulfills the objective of the statute:
[520]*520“The most convenient [definition] is to consider a cause of action as an aggregate of operative facts giving rise to a right or rights termed ‘right’ or ‘rights of action’ which will be enforced by the courts. The number and extent of operative facts included within a single cause of action are to be determined pragmatically, mainly by considerations of practical trial convenience.” (Emphasis supplied.)
The relevant factors for determining what connotes an “aggregate of operative facts” are “their relatedness in time, space, origin, or motivation, and whether, taken together they form a convenient unit for trial purposes.” Troutman v. Erlandson, 287 Or 187, 206, 598 P2d 1211 (1979). In this case, plaintiff’s factual allegations about Weyerhaeuser’s course of conduct are an aggregate of operative facts that give rise to several “rights of action.” We conclude that the statute directs the trial court to reduce the noneconomic damage award to $500,000.
However, plaintiff contends that ORS 18.560 violates Article VII (amended), section 3, of the Oregon Constitution, which provides, in part:
“In actions at law, where the value in controversy shall exceed $200, the right of trial by jury shall be preserved, and no fact tried by a juiy 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.”
“Reexamine” means to subject to “a second or new examination.” Websters Third New International Dictionary 1907 (unabridged 1976). We cannot discern from the text and context of Ajrticle VII (amended), section 3, whether a court “re-examines” a “fact tried by a jury” when it reduces a damage award that exceeds the statutory limit. See Comeaux v. Water Wonderland Improvement Dist., 315 Or 562, 570, 847 P2d 841 (1993). To resolve that question, we look for guidance to the circumstances surrounding the adoption of Article VII (amended), section 3. See PGE v. Bureau of Labor and Industries, supra, 317 Or at 611.
Van Lom v. Schneiderman, 187 Or 89, 98, 210 P2d 461 (1949), discusses the evolution of Article VII (amended), section 3. The framers of the United States Constitution preserved the right of trial by jury, as it was know at common law, in the Seventh Amendment, which provides:
[521]*521“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 reexamined in any Court of the United States, than according to the rules of the common law.”
That amendment protected the jury trial right as it had developed in England. At the time of the adoption of the Seventh Amendment, English common law reserved to the jury the determination of the amount of damages. 3 W. Blackstone, Commentaries 396. However, the English system authorized the court, in a damage action, to grant a new trial if the judge believed that the verdict awarded excessive damages. Van Lom says 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.” 187 Or at 112.
Oregon preserved that federal jury trial right when it adopted Article I, section 17, as part of its Bill of Rights.5 That section provides:
“In all civil cases, the right of Trial by Jury shall remain inviolate.”
Before 1910, Oregon also retained the tradition of allowing courts to set aside “excessive” verdicts. Van Lom v. Schneiderman, supra, 187 Or at 105. For example, OCLA, § 5-802, authorized a new trial for:
“(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[.]”
See 187 Or at 105.
In 1910, the people of Oregon adopted Article VII (amended), section 3. The amendment repeats the substance of Article I, section 17, but also creates a limitation on the [522]*522authority of an Oregon court to reexamine a jury’s determination of any fact, through the proscription: “no fact tried by a jury shall be otherwise re-examined in any court of this State.” Buchanan v. Lewis A. Hicks Co., 66 Or 503, 510, 133 P 780, 134 P 1191 (1913), describes the problem that the amendment was intended to correct:
“Pursuant to the provisions of that statute [Lord’s Oregon Laws, § 174] it had been the practice of many trial courts in Oregon, prior to the amendment of the organic law * * * to set aside judgments and grant new trials, when, from a consideration of all the evidence given at the trial of an action, it was believed the verdict was excessive. In order to inhibit such practice and to uphold verdicts, the Constitution was amended so as to preclude a court from re-examining any fact that had been tried by a jury, when the verdict returned was based on any legal evidence * * *.”
In Van Lom v. Schneiderman, supra, 187 Or at 95, the court said:
“This last clause forbids re-examination of a fact found by a juxy otherwise than by another jury* * *, 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 * * *). 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.’ ”
The Supreme Court has held that the amendment was intended to prohibit courts from deciding that a jury’s factual determination of the amount of damages is improper when measured against a statutory standard, such as “excessive,” and nullifying the verdict.
“The purpose of this amendment [to Article VII, section 3] was to prohibit courts from setting aside or modifying judgments founded upon verdicts of juries, where there is no prejudicial error in the record. In this case the jury was properly instructed, and there is no assignment of error except as to the amount of the verdict. Under such circumstances, it was for the jury only to fix the amount of plaintiffs damages, which it did by a unanimous verdict.
cent * * * *
“Although in the opinion of this court the amount of damages awarded might be deemed excessive, we cannot affirmatively [523]*523say that there is no evidence to support it. Under the record in the case, this court is powerless to grant relief. ’ ’ Malpica v. Cannery Supply Co., 95 Or 242, 247, 187 P 596 (1920).
Malpica v. Cannery Supply Co., supra, is but one of many cases that hold that Article VII (amended), section 3, is a limitation on the court’s power to set aside or modify a jury’s factual determination of damages, or a judgment that embodies that determination, following a fair trial. In Sigel v. Portland Ry. L. & P. Co., 67 Or 285, 291, 135 P 866 (1913), the court held that, after the plaintiff presented the evidence of her injury,
“[i]t therefore became the duty of the juiy to determine the amount of her damages. * * * The judgment on the verdict could not be set aside without the re-examination of a question of fact which had been tried by a jury upon legal evidence and under proper instructions as to the law.”6
Roach v. Mead, 301 Or 383, 385, 722 P2d 1229 (1986), states:
“In Shepler v. Weyerhaeuser Company, 279 Or 477, 484, 569 P2d 1040 (1977), which concerned a jury verdict for plaintiff in a negligence action, we defined our scope of review in civil actions at law:
“ ‘* * * Since the verdict was for plaintiff, we could not find error * * * unless we could affirmatively say there is no evidence to support the verdict. (Oregon Constitution, Amended Art. VII, § 3.)’”
The Supreme Court has applied that limitation on appellate review authority since the earliest cases construing Article VII (amended), section 3.
“[T]he Supreme Court, on appeal, is powerless to re-examine any fact tried by a jury, unless it, like the lower court, in passing upon a motion for a new trial, can affirmatively say there is no evidence to support the verdict. * * *
[524]*524“[T]he right, upon appeal, to correct a judgment rests upon an error of law committed by the trial court and not upon the re-examination of any fact tried by a jury, except in cases where the Supreme Court can affirmatively say there is no evidence to support the verdict.” Buchanan v. Lewis A. Hicks Co., supra, 66 Or at 511.
Sullivan v. Wakefield, 65 Or 528, 535, 133 P 641 (1913), says:
“Under this section of the Constitution, a court cannot legally set aside the findings of the jury, where there has been no error of law, without affirmatively finding that there was no evidence to support the verdict.” (Emphasis in original.)
In Love v. Chambers Lumber Co., 64 Or 129, 133, 129 P 492 (1913), the court said:
“Where there is evidence to support a verdict, and the facts have been submitted to a jury under proper instructions, we are precluded from disturbing such verdict. Article VII, Section 3, of the constitution as amended November 8, 1910 * * *.”
Similarly, the court said in State v. Hill, 63 Or 451, 459, 128 P 444 (1912):
“Under the recent amendment to our constitution (Artiele VII, section 3), if there is any evidence to support the verdict, this court cannot disturb it. The jury are the exclusive judges of all questions of fact.”
ORS 18.560 reinstitutes the practice of courts reducing excessive jury awards, except that it substitutes a statutory monetary standard, $500,000, for statutory criteria controlling judicial discretion (e.g., “excessive damages,” “passion or prejudice,” and “insufficiency of the evidence”). It requires the court to apply the monetary standard in every case, whether or not the evidence supports the jury’s higher damage award. Article VII (amended), section 3, was designed to prevent that practice, because the people chose to make jurors the exclusive judges of the facts regarding the extent of a plaintiffs damages. We have examined the context of the adoption of Article VII (amended), section 3, and the problem that it sought to remedy. From our examination, we conclude that a jury’s verdict on damages, which is supported by the evidence, is a “fact tried by a jury” under that amendment, and that ORS 18.560 violates that amendment, because it [525]*525compels the court to reexamine the verdict by requiring the court to nullify the jury’s factual determination to the extent that it exceeds the legislature’s damage cap.
Weyerhaeuser argues that its motion did not threaten any interference with the jury’s factual determination on damages because ORS 18.560 operates as a limitation after the jury makes its award.7 We give the same response to that argument as the Washington Supreme Court gave to it in Sofie v. Fibreboard Corp., 112 Wash 2d 636, 655, 771 P2d 711, 780 P2d 260 (1989):8
‘ ‘Respondents also contend that the damages limit affects only the judgment as entered by the court, not the jury’s finding of fact. This argument ignores the constitutional magnitude of the jury’s fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner. As we once stated:
“ ‘The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name * * *. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding. State v. Strasburg, 60 Wash. 106, 116, 110 P. 1020 (1910), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L. Ed. 356 (1866).’ ”
[526]*526Weyerhaeuser also contends that, if the statute compels a reexamination of a fact found by the jury, courts are similarly barred from applying the statutes that govern contributory negligence, ORS 18.470,9 and contribution, ORS 18.455.10 Those statutes are not analogous because, under them, the court gives effect to the jury’s findings on damages. Under ORS 18.470, the court carries out the jury’s findings on the amount of the plaintiffs damages and the plaintiffs proportionate fault. Under ORS 18.455, the court reduces the damage award by the amount that the plaintiff has already recovered from a co-defendant to ensure that the plaintiff receives only the amount of damages found by the jury. In contrast, ORS 18.560 directs the court to nullify the jury’s verdict on damages to the extent that the verdict exceeds the amount that the legislature has determined is a fair award in all cases, regardless of the jury’s contrary determination from the evidence in a particular case.
Weyerhaeuser’s motion invited the trial court to set aside the jury’s verdict, because it was too large when measured by the damage cap in ORS 18.560. Article VII (amended), section 3, forbids the court to reexamine the verdict unless no evidence supports it. Because evidence in [527]*527the record supported the verdict, the court correctly refused to set it aside.11
Defendants’ remaining assignments of error challenge the jury’s punitive damages award. They assert that the award was excessive and, therefore, violated their rights under Article I, section 16, of the Oregon Constitution, the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.12 They assign as error the denial of their motion for a new trial on that basis. ORCP 64B. In Oberg v. Honda Motor Co., 316 Or 263, 275, 851 P2d 1084 (1993), cert granted _ US _, 114 S Ct 751, 127 L Ed 2d 69 (1994), the Supreme Court held that Article I, section 16, applies only to criminal cases, and that the award in that case did not violate the Due Process Clause under the holding in Pacific Mut. Life Ins. Co. v. Haslip, 499 US 1, 111 S Ct 1032, 113 L Ed 2d 1 (1991).13 Similarly, Article I, section 16, does not apply in this case and the punitive damages award does not violate defendants’ due process rights in the light of the court’s instruction that outlined objective criteria on which the jury was required to base its decision,14 and because of the availability of post-verdict review.
[528]*528Regarding the Eighth Amendment, the United States Supreme Court held in Browning-Ferris v. Kelco Disposal, 492 US 257, 264, 109 S Ct 2909, 106 L Ed 2d 219 (1989), that the clause does not apply to awards of punitive damages in cases between private parties “when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.” The Court left open the question we must answer in this case: whether the amendment applies to a civil action when the government has a right to share in the award. In reviewing the purpose and the history of the Eighth Amendment, it said that the framers were concerned with “the potential for governmental abuse of its ‘prosecutorial’ power” and that the Excessive Fines Clause was “intended to limit only those fines directly imposed by, and payable to, the government.” 492 US at 266, 268. (Emphasis supplied.) Furthermore, it said that it
“has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with the criminal process and with direct actions initiated by government to inflict punishment. Awards of punitive damages do not implicate these concerns.” 492 US at 259. (Emphasis supplied.)
Under ORS 18.540,15 the government becomes a beneficiary of a portion of a punitive damages award after a [529]*529verdict has been entered. In this case, a private party brought an action against defendants, and the jury directly imposed the judgment against defendants to punish and to deter future misconduct. The government of Oregon did not initiate this action. Because the purpose of the Eighth Amendment would not be furthered if applied under the circumstances, we reject defendants’ arguments. The trial court did not err in denying their motion for a new trial.
Affirmed.