Pauly v. Mccarthy

• Decision Date: 28 August 1947
• Docket Number: 6846
• Citation: 109 Utah 431,184 P.2d 123
• Court: Utah Supreme Court
• Parties: Pauly v. Mccarthy Et Al.

184 P.2d 123

109 Utah 431

Pauly v. Mccarthy Et Al.

No. 6846

Supreme Court of Utah

August 28, 1947

Appeal From District Court, Third District, Salt Lake County; J Allan Crockett, Judge

Action under the Federal Employers' Liability Act, 45 U.S.C. A 51 et seq., for personal injuries by Harry 0. Pauly against Wilson McCarthy and another, trustees of the Denver & Rio Grande Railroad Company. From a judgment for plaintiff defendants appealed. On mandate from the Supreme Court of the United States, 67 S.Ct. 962, 91 L. Ed., which reversed a decision of the Supreme Court of Utah, 109 Utah 398, 166 P.2d 501, reversing a judgment in favor of plaintiff with instructions to dismiss.

Judgment of trial court affirmed.

Farnsworth & Van Cott and Grant H. Bagley, all of Salt Lake City, for appellants. Rawlings, Wallace & Black and Brigham E. Roberts of Salt Lake City, for respondent.

WOLFE Justice.

On mandate from the Supreme Court of the United States.

This is the second time this case has been before this court. Plaintiff commenced this action against the defendants under the Federal Employers' Liability Act, 45 U.S.C. A. 51 et seq., and recovered a net verdict of $50,000 in the Third District Court. With plaintiff's consent, the court ordered a remission of $15,500 of the verdict, and denied defendants' motion for new trial. On appeal by the defendants we reversed, considering only the questions of negligence and causation, 109 Utah 398, 166 P.2d 501. The Supreme Court of the United States granted certiorari, 67 S.Ct. 102, 91 L. Ed., and reversed, 67 S.Ct. 962. Two questions, not considered in our former opinion, remain to be decided.

The jury returned a gross verdict for $75,000 and deducted $25,000 for contributory negligence of the plaintiff. Defendants contend that the jury's finding that plaintiff was damaged $75,000 in spite of the court's instruction that no permanent injuries were claimed is so grossly excessive and contrary to the court's instructions that the court abused its discretion in not setting aside the entire verdict as tainted by passion and prejudice.

In the early days of our statehood, this court 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." Kennedy et al. v. Oregon Short Line R. Co., 18 Utah 325, 54 P. 988. See also Croco v. Oregon Short Line R. Co., 18 Utah 311, 54 P. 985, 44 L. R. A. 285; Budd v. Salt Lake C. R. Co., 23 Utah 515, 65 P. 486; Braegger v. Oregon Short Line R. Co., 24 Utah 391, 68 P. 140; Palmquist v. Mine & Smelter Supply Co., 25 Utah 257, 70 P. 994; Burt v. Utah Light & Power Co., 26 Utah 157, 72 P. 497; Oregon Short Line R. Co. v. Russell, 27 Utah 457, 76 P. 345; and Nichols v. Oregon Short Line R. Co., 28 Utah 319, 78 P. 866.

Some of the early cases recognized, at least impliedly, that the trial judge might order a remission from an excessive verdict. Kennedy et al. v. Oregon Short Line R. Co., supra; Nelson v. Southern Pacific Railroad Co., 15 Utah 325, 49 P. 644. But from the language used in these and other decisions, a view developed that this court was powerless to interfere with a jury verdict, no matter how outrageous. This view was exploded in the case of Jensen v. Denver & R. G. R. Co., 44 Utah 100, 138 P. 1185, 1192, where, after citing with approval many of the cases above cited, we said:

"Still the jury cannot be permitted to go unbridled and unchecked. Hence the Code that a new trial on motion of the aggrieved party may be granted by the court below on the ground of 'excessive damages appearing to have been given under the influence of passion or prejudice.' Whenever that is made to appear, the court, when its action is properly invoked, should require a remission or set the verdict aside and grant a new trial. But, before the court is justified to do that, it should clearly be made to appear that the jury totally mistook or disregarded the rules of law by which the damages were to be regulated, or wholly misconceived or disregarded all the evidence, and by so doing committed gross and palpable error by rendering a verdict so enormous or outrageous or unjust as to be attributable to neither the charge nor the evidence, but only to passion or prejudice. Whether a new trial should or should not be granted on this ground, of necessity, must largely rest within the sound discretion of the trial court.

"Still that court, in such particular, is not supreme or beyond reach. Its action may nevertheless be inquired into and reviewed on an alleged abuse of discretion, or a capricious or arbitrary exercise of power in such respect. Such a review is not review of a question of fact, but of law * * * our power to correct a plain abuse of discretion or undo a mere capricious or arbitrary exercise of power cannot be doubted.

"We have said this much, in view of plaintiff's contention and of opinions heretofore somewhat loosely expressed at the bar, that in a case of tort tried to a jury, no matter how enormous or flagrantly outrageous a verdict may be, the trial court alone is authorized to grant relief; and though that court may, by a clear abuse of discretion, and by an arbitrary exercise of power, have gone as wild as did the jury and suffered an outrageous and unjust verdict to stand, or on mere whimsical and capricious grounds set a verdict aside amply supported by competent evidence, yet we are powerless to interfere. We do not so understand the prior decisions. In all of them where it was said this court is not authorized to review a question of excessive damages, such question being one of fact, the statements are qualified, except to ascertain 'if there is any evidence to support the verdict,' 'except so far as may be necessary to determine questions of law.' We reaffirm that. And since an assignment based on a ruling alleged to have been made by an abuse of discretion or by a mere capricious or arbitrary exercise of power, in granting or refusing a new trial, presents a question of law, not of fact, we may as such review it." (Italics added.)

Since the Jensen case above quoted, it is well settled that this court has power to, and will, consider assignments of error based on excessive verdicts. Brostrom et al. v. Lynch-Cannon-Engineering Co. et al. 46 Utah 103, 148 P. 423; Thomas v. Ogden Rapid Transit Co., 47 Utah 595, 155 P. 436; Stephens Ranch & Livestock Co. v. Union Pac. R. Co., 48 Utah 528, 161 P. 459; Eleganti v. Standard Coal Co., 50 Utah 585, 168 P. 266; Shepard v. Payne, 60 Utah 140, 206 P. 1098; Browning v. Bank of Vernal, 60 Utah 197, 207 P. 462; McAfee v. Ogden Union Ry. & Depot Co., 62 Utah 115, 218 P. 98; Geary v. Cain, 69 Utah 340, 255 P. 416; Morgan v. Ogden Union Ry. Co., 77 Utah 325, 294 P. 541; and Ward v. Denver & R. G. W. R. Co., 96 Utah 564, 85 P.2d 837. But, although we have the power to order a new trial in case of an excessive verdict, it is a power which we have rarely, if ever, exercised. However, in the case of Shepard v. Payne, supra, we ordered a remission of $2,500 from a $10,000 verdict. In that case, the excess was not the result of passion or prejudice, but was determinable as a matter of law.

Where we can say, as a matter of law, that the verdict was so excessive as to appear to have been given under the influence of passion or prejudice, and the trial court abused its discretion or acted arbitrarily or capriciously in denying a motion for new trial, we may order the verdict set aside and a new trial granted. Jensen v. Denver & R. G. R. Co., supra; and other cases cited above following that decision. But mere excessiveness of a verdict, without more, does not necessarily show that the verdict was arrived at by passion or prejudice. Stephens Ranch & Livestock Co. v. Union Pac. R. Co., supra. It is true that the verdict might be so grossly excessive and disproportionate to the injury that we could say from that fact alone that as a matter of law the verdict must have been arrived at by passion or prejudice. But the facts must be such that the excess can be determined as a matter of law, or the verdict must be so excessive as to be shocking to one's conscience and to clearly indicate passion, prejudice, or corruption on the part of the jury. McAfee v. Ogden Union Ry. & Depot Co., supra; Ward v. Denver & R. G. W. R. Co., supra, this is not such a case.

The verdict here was admittedly liberal. But the mere fact that it was more than another jury, or more than this court, might have given, or even more than the evidence justified, does not conclusively show that it was the result of passion, prejudice, or corruption on the part of the jury.

There is no question but that plaintiff was grievously injured. He stepped from the caboose of a freight train and fell into a gully, landing on his feet. He was stunned for an instant. When he regained consciousness he suffered from pains in his back and foot, and his legs. He remained where he had fallen until an ambulance came some time later (the exact length of time is not clearly shown by the record). He remained in the hospital at Glenwood Springs, Colorado, for seven days where he was kept under opiates because of his pain. His lower limbs were paralyzed and he was unable to control the functions of his bowels and bladder. He also suffered severe gas pains. Plaintiff developed erysipelas, and was transferred to the hospital at Salida, Colorado, where he was kept in isolation for three days. After that he was placed in a hyper extension bed for 35 days, during which time he...