Kennedy v. Oregon Short-Line R. Co.

• Decision Date: 12 November 1898
• Citation: 54 P. 988,18 Utah 325
• Court: Utah Supreme Court
• Parties: MARGARET KENNEDY, ET AL., RESPONDENTS v. THE OREGON SHORT LINE RAILWAY COMPANY, APPELLANT

54 P. 988

18 Utah 325

MARGARET KENNEDY, ET AL., RESPONDENTS v. THE OREGON SHORT LINE RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

November 12, 1898

Appeal from the District Court of Weber County, Hon. H. H. Rolapp Judge.

Action by plaintiffs as widow, and children and heirs at law, by their guardian, against the Short Line Railway Co. for damages for the death of one Patrick Kennedy, husband and father. From a judgment for plaintiffs defendant appeals.

Affirmed.

Parley L. Williams, Esq., for appellant.

In this case the damages given by the jury are excessive and appear to have been given under the influence of passion or prejudice.

Verdicts in Utah as well as in many other portions of the country are notoriously much larger upon the average, in suits of this nature brought against railroad and other corporations supposed to be possessed of large wealth than under other circumstances. This tendency should be restrained.

As said by Judge Breese in 52 Illinois, 347, in the case of Walker v Martin, "If excessive verdicts are sustained, juries will be regarded as instruments of oppression rather than a bulwark of our liberties." See also City of Decatur v. Fisher, 63 Ills. 407; New Orleans, etc. v. Statham 42 Miss. 687.

Judge Sutherland in his work on Damages, Vol. 1, 2d edition, Sec. 460, discusses the practice of cutting down verdicts where they are found to be excessive, and says: "There is an apparent departure from sound principle in this practice. The court concludes that the jury were influenced by passion or prejudice, or both, because they found such excessive damages, and yet allows that finding, covering the major propositions of the case upon which damages are consequent, to stand. Why should a verdict be in part retained if the jury were really influenced by passion or prejudice? Where their estimate of damages is rejected, and another substituted, is the latter a verdict?" Savannah, etc. Ry. Co. v. Harper, 70 Ga. 119; Carlisle v. Callahan, 78 Ga. 320; Mayer v. Sykes, 94 Ga. 30; Same Case, 47 Am. State Rep. 132; Atchison, T. & S. F. R. Co. v. Cone, Kansas, 15 P. 499.

The error alleged by appellant in refusing to instruct the jury as requested by defendant, presents the same question as that discussed in the case of Croco v. Oregon Short Line Ry. Co., 18 Utah 311, where authorities are cited and the question discussed.

David Evans, Esq., A. G. Horn, Esq., and L. R. Rogers, Esq., for respondent.

In so far as to the question as to whether or not the verdict is excessive, we claim that the same is a question of fact and as has been repeatedly held, will not be reviewed on appeal. Nelson v. S. P. Ry. Co., 15 Utah 325; Mangum v. Mining Co., 15 Utah 537. See also authorities cited in Croco v. Oregon Short Line Ry. Co., 18 Utah 311.

The contention of appellant that the court erred in refusing to instruct the jury as requested by defendant involves the request of defendant to return a verdict in its favor by reason of a so-called champertous agreement entered into between plaintiffs and their attorneys. This proposition was fully discussed in Croco v. Oregon Short Line Ry. Co., 18 Utah 311.

MINER, J. ZANE, C. J. and BARTCH, J., concur.

OPINION

MINER, J.

This action was brought by the widow and children of Patrick Kennedy, deceased, against the defendant, for negligently causing the death of the said Patrick Kennedy while he was a passenger on the defendant's road. The cause was tried and a verdict rendered in favor of the plaintiff on January 27th, 1898, for the sum of $ 9,685. A motion for a new trial was made upon the minutes of the court based upon statutory grounds, and a claim of excessive damages. Thereupon the court held that the damages as found by the jury were excessive, and that a new trial should be granted unless the plaintiffs should remit so much thereof as would reduce the sum to $ 7,085. The remission was made by the plaintiffs' attorneys, and thereupon the court overruled the defendant's motion for a new trial, and a judgment was entered for the sum of $ 7,085. The appellant contends that the judgment is still grossly excessive and unreasonable, and that the judgment recovered is not based on a verdict of a trial by jury.

1st. In this case we are of the opinion that there is evidence to support the judgment. In so far as the objection relates to the excessive damages we must decline to discuss the question. In such cases this court has repeatedly held that the amount of damages is a question of fact to be found by the jury, from all the evidence in the case, and that if there be evidence to support the verdict this court is not at liberty, under the constitution of this State, to review alleged errors, but will consider the evidence only so far as will be necessary to determine the question of law. Nelson v. So. Pac. Ry. Co., 15 Utah 325, 49 P. 644; Croco v. Oregon Short Line Ry. Co., decided at the Sept. term, 1898, 54 P. 985, 18 Utah 311, and cases cited.

2d. It is also contended that the action of the trial court in holding that unless the plaintiffs consented to a reduction of the verdict in this case to the sum of $ 7085, a new trial would be granted, and that although the plaintiffs consented to such reduction, the action of the trial court was without jurisdiction, and that if the verdict of the jury was wrong for the excess, the whole verdict and judgment as rendered was erroneous and tainted in the same manner.

This question was before the Territorial Supreme Court, and was decided against the contention of the appellant. The court said: "The practice which was pursued in this case is thoroughly established by precedent. 1st. Sutherland on Damages, 813, 815, and cases cited. It is a supervision which courts exercise over verdicts for the protection of defendants, in what are deemed proper cases, and if the rule is ever to be disturbed, it should be on the application of parties injured, and not those who are benefited by it." Reddon v. Railway Co., 5 Utah 344, 15 P. 262; Riley v. Rapid Transit Co., 10 Utah 428, 37 P. 681.

In Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 29 L.Ed. 755, 6 S.Ct. 590, the court held:

"The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand." Hayden v. The Florence Sewing Mach. Co., 54 N.Y. 221; Doyle v. Dixon, 97 Mass. 208; Blunt v. Little, 3 Mason, 102.

The great weight of authority sustains the ruling made, and that such action on the part of the trial court is within its powers and discretion. Kennon v. Gilmer, 131 U.S. 22; Kinsey v. Wallace, 36 Cal. 462; English v. So. Pac. R'y. Co., 13 Utah 407, 45 P. 47.

3d. After the jury were called, and before they were sworn on their voir dire, the defendant challenged the panel on the ground that the jury were selected from a list made by the jury commissioners appointed by order of the court on the 3d day of January, 1898, and that the list was drawn in court on the 4th day of January, 1898, and the names of the present panel were drawn from the jury box from that list so chosen by the jury commissioners. The challenge to the panel was overruled, to which ruling exception was taken by the defendant. Sec. 1302, Rev. Stat. Utah, 1898, reads as follows:

"The judge or judges of the district court of each county shall, prior to December first of each calendar year, appoint for the next calendar year two persons as jury commissioners, who shall be voters of the county, well known to be of opposite politics and of good character for intelligence, morality, and integrity."

Sec. 1306, Id. reads:

It shall be the duty of the jury commissioners, before the fifteenth day of December, after their appointment, to select from the names of the legal voters on the assessment roll of the county for the current year, a written list of names from which the grand and petit jurors shall be drawn to serve in the district court of such county during the succeeding calendar year." * * *

The law existing on the 25th day of January, 1898, at the time this trial was commenced, with reference to preparing the list from which jurors were to be drawn, went into effect on the 1st day of January, 1898, two days before the appointment of the jury commissioners. Rev. Stat. 1898, Sec. 2479.

The question to be determined is, did the court have power to appoint jury commissioners to select jurors, under an order made on January 3, 1898, and whether the time designated by statute for the appointment of jury commissioners is mandatory or directory?

It is held to be a general rule that where a statute imposes upon public officers the duty of performing some act in which the public is interested, and fixes the time for doing such act, the requirement as to time is to be regarded as directory, and not a limitation of the exercise of the power granted, unless the statute contains negative words denying the exercise of the power after the time named; or from the character of the act directed to be performed, the manner and mode of its performance, or its effect upon public interests or private rights, it must be presumed that the legislature had in contemplation that the act had better not be performed at all than to be performed at any other time than that named in the statute.

In Pond v. Negus, 3 Mass. 230, the question...