F.M. Davis Ironworks Co. v. White

• Decision Date: 12 January 1903
• Citation: 71 P. 384,31 Colo. 82
• Parties: F. M. DAVIS IRONWORKS CO. v. WHITE.
• Court: Colorado Supreme Court

71 P. 384

31 Colo. 82

F. M. DAVIS IRONWORKS CO. v. WHITE.

Supreme Court of Colorado

January 12, 1903

Appeal from district court, Arapahoe county.

Action by Jarvis White against the F. M. Davis Ironworks Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wolcott Vaile & Waterman and W. W. Field, for appellant.

George C. Norris and Emerson J. Short, for appellee.

CAMPBELL C.J.

In this action, brought for the recovery of damages for personal injuries, there was a verdict for plaintiff in the sum of $30,000. Upon a motion for a new trial, based in part upon the 5th subdivision of section 217 of the Code, which declares that a new trial may be granted to the aggrieved party where excessive damages against him appear to have been given under the influence of passion or prejudice, the trial court, having found that the damages as awarded by the jury were excessive thereunder, said to the plaintiff that a new trial would be granted, upon defendant's application therefor on the ground alleged, unless he voluntarily remitted from the verdict the sum of $15,000. The plaintiff consented thereto, and judgment was thereupon entered for the balance of the verdict in his favor, in the sum of $15,000. The case has been appealed by the defendant, and numerous errors assigned and argued by counsel; but, as the judgment must be reversed because of the action of the court with reference to the remittitur, the discussion will be confined to that question alone. The other questions so elaborately presented may not again arise, in the event of another trial.

It conclusively appears from the record that the district court in passing upon the motion for a new trial, held that the verdict was excessive, and that it was given under the influence of prejudice or passion of the jury, in which we concur. The sole question, therefore, is, had that court, or has this court, in the circumstances, power, as against the objection of defendant, to render judgment for the balance of the verdict returned by the jury as the result of passion and prejudice, after the court has remitted from the amount the part which it deems excessive? It would be impossible to reconcile the conflicting authorities upon this question, and we shall not attempt to do so. Neither this court, nor the court of appeals, has squarely passed upon the question, though in several cases both tribunals have recognized the power of a trial court, as well as one of review, to order a remittitur of part of a verdict, and render judgment for the residue. In Town of Salida v McKinna, 16 Colo. 523, 27 P. 810, the trial court, in a personal injury case, required the plaintiff to remit part of his verdict, but no error was assigned to the ruling by defendant. In other cases, in most of which the damages awarded were in accordance with a fixed rule, the practice was recognized, but no objection to it was raised. Consolidated Gregory Co. v. Raber, 1 Colo. 511; Chapin v. Goodell, 2 Colo. 608; Hochmark v. Richler, 16 Colo. 263, 26 P. 818. The nearest approach to the question with which we are now confronted was in Sills v. Hawes, 14 Colo.App. 157, 59 P. 422, wherein it was said that when, on a motion for a new trial on the ground that the verdict was excessive, the court required plaintiff to remit part of the amount, and entered judgment for the balance, it was an error, if at all, that could not prejudice the defendant, and so no ground for reversal on the latter's appeal. That, however, was an action for damages for the unlawful taking and conversion of personal property and for ouster from real estate. There was a fixed standard for the measure of damages in that sort of an action, and the excess, apparently, was easily ascertained from the record. Besides, there was no finding, either by the trial court or the court of appeals, that the largeness of the amount of the verdict was the result of any improper conduct by the jury. It is, therefore, not only on principle, but according to the best authorities, clearly distinguishable from the case in hand. Any general expressions found in the opinion that seem opposed to our conclusion cannot stand.

Appellee says that our Code provision was taken from California, and there received a construction before its adoption in this state upholding his contention, and therefore the California decisions must be taken as controlling in our courts. They are persuasive and instructive, but not conclusive. Railroad Co. v. Farrow, 6 Colo. 498; Insurance Co. v. Ross-Lewin, 24 Colo. 43, 51 P. 488, 65 Am.St.Rep. 215; Dwyer v. Bank (Colo Sup.) 70 P. 323. In Kinsey v. Wallace, 36 Cal. 462, the practice of ordering a remittitur was upheld by a divided court. In the majority opinion it was said that verdicts should not be allowed to stand which so far exceed all reasonable bounds as to raise a just presumption that they proceeded from passion or prejudice. Sawyer, C.J., in a dissenting opinion, held that the verdict in that case was not excessive, and that unless it was, and proceeded from passion or prejudice, the court was not authorized to disturb it on that ground. Gregg v. Railroad Co., 59 Cal. 312, cited by our court of appeals, was an appeal by both parties; but it does not appear from the opinion that defendant objected to the ruling of the trial court allowing a remittitur, and the case went off on plaintiff's appeal only. Some decisions of this court other than those already cited throw light on the question, though they are not exactly in point. In Caldwell v. Willey, 16 Colo. 169, 26 P. 161, the verdict under consideration was clearly the result of a mistake or misapprehension or bias, and the court declared it should have been unhesitatingly set aside, notwithstanding the fact that a court of last resort is loath to interfere with findings of fact by a jury. In Elevator Co. v. Craddock, 5 Colo.App. 203, 37 P. 950, it was said that, where a verdict is evidently the result of bias or prejudice, it should in all cases be set aside. In other cases in both courts similar expressions are found. In the earlier cases in Wisconsin, like Potter v. Railroad Co., 22 Wis. 615, the right of a court, as against the objection of a defendant, to allow the plaintiff to remit the excess and give him judgment for the residue, was denied; but in later cases, as in Baker v. City of Madison, 62 Wis. 137, 150, 22 N.W. 141, 583, the rule was relaxed to the extent of authorizing the court to relieve the plaintiff from the delay and expense of another trial when the only fault in the verdict is that it is given for too large an amount. It was clearly indicated that, if the excess was due to improper conduct on the part of the jury, the proper practice would be to set aside the verdict altogether. In 14 Enc. Pl. & Prac. 763 et seq., and in 18 Enc. Pl. & Prac. 123 et seq., various cases more...