Van Lom v. Schneiderman
| Decision Date | 27 September 1949 |
| Citation | 210 P.2d 461,187 Or. 89 |
| Parties | VAN LOM, A MINOR, <I>v.</I> SCHNEIDERMAN |
| Court | Oregon Supreme Court |
1. Since adoption of constitutional provision that no fact tried by jury shall be re-examined in any court, unless there is no evidence supporting the verdict, circuit courts no longer have common-law power to set aside a verdict in an action for unliquidated damages on ground that verdict is excessive. Const. Or. art. 1, § 17; art. 7, § 3; U.S.C.A. Const. Amend. 7.
Appeal and error — Amendment to constitution — What judgment should have been entered — Excessive verdict
2. That part of amendment to constitution providing that if judgment appealed from should be changed and Supreme Court is of opinion that it can determine what judgment should have been entered it shall direct entry of such judgment would not be construed as authorizing Supreme Court to reduce an excessive verdict, in view of prior provision in amendment that no fact tried by jury shall be re-examined in any court, unless there is no evidence supporting verdict. Const. Or. art. 1, § 17; art. 7, § 3; U.S.C.A. Const. Amend. 7.
Damages — Exemplary, vindicative or punitive damages — Tort — Malice
3. Exemplary, vindicative or punitive damages are assessed against defendant in tort action whose acts are characterized by malice or other circumstances of aggravation, as an example to deter others from committing like offense and to punish defendant, and such damages are allowed over and above those which fully compensate plaintiff for his loss, including injury to his feelings, mental anguish, humiliation, and the like.
4. The allowance of exemplary damages in a proper case is approved in Oregon.
Damages — Exemplary — Judge determines as matter of law whether there is evidence of malice
5. In trial where exemplary damages are sought, judge determines as matter of law whether there is evidence of malice, and, if he decides that there is, the assessment of such damages is committed to discretion of jury.
Appeal and error — New trial — Constitutional provision — Unless no evidence to support verdict — Divests courts of power to interfere with exemplary damages
6. The constitutional provision that no fact tried by jury shall be re-examined in any court, unless there is no evidence supporting verdict, divests both circuit courts and Supreme Court of power to interfere with exemplary damages as well as with compensatory damages. O.C.L.A. § 5-802(5, 6); Const. Or. art. 1, § 17; art. 7, § 3; U.S.C.A. Const. Amend. 7.
See: 5 A.L.R. 2d 59
15 Am. Jur. 386
25 C.J.S., Damages § 117
Appeal from Circuit Court, Multnomah County.
Hugh L. Biggs, of Portland, argued the cause for Appellant. With him on the brief were Manley Strayer, George H. Fraser, Hart, Spencer, McCulloch & Rockwood, and James Cole, of Portland.
Elton Watkins, of Portland, argued the cause and filed a brief for Respondent.
E.K. Oppenheimer, of Portland, amicus curiae, made an oral argument and filed a brief.
B.A. Green, of Portland, amicus curiae, made an oral argument. With him on the brief were William M. Dale, Jr., Burl L. Green, Donald S. Richardson, Thomas H. Tongue, III, William M. Davis, Nels Peterson, Edwin D. Hicks and James Landye, of Portland.
Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY, HAY and PAGE, Justices.
Lorraine Van Lom, a minor, by her guardian ad litem, Frances Van Lom, sued Paul Schneiderman, doing business under the assumed name and style of The Music Hall, for assault and battery.
The Circuit Court, Multnomah County, ALFRED P. DOBSON, J., entered a judgment for plaintiff on a verdict awarding $5,000 compensatory damages and $5,000 punitive damages, and the defendant appealed.
The Supreme Court, LUSK, C.J., affirmed the judgment on ground that the Supreme Court under the State Constitution had no power to set aside a verdict in an action for unliquidated damages on ground of excessive damages.
The plaintiff sued for assault and battery and false imprisonment. At the trial the cause of action based on false imprisonment was withdrawn by the court from the consideration of the jury and the trial proceeded on the charge of assault and battery alone. For that wrong the plaintiff demanded $5,000.00 compensatory damages and $5,000.00 punitive damages. The jury returned a verdict for the full amount asked. From the consequent judgment the defendant has appealed.
There are no exceptions in the record and the defendant's brief contains no assignments of error. The brief sets forth two propositions of law, to-wit: "The verdict of $10,000 rendered in favor of the respondent and against the appellant in this case is manifestly excessive" and "The Supreme Court of Oregon is empowered under Article VII, Section 3, Oregon Constitution, to reduce an excessive verdict." The defendant moved in the Circuit Court for an order granting a new trial on the ground, among others, that the damages were excessive. The court denied the motion. The failure of counsel for the defendant to assign this ruling as error is accounted for by their concession that since the adoption of Art. VII, § 3, of the Constitution it has been uniformly held that the circuit courts of this state have been stripped of the power which they had theretofore exercised of setting aside a verdict for excessive damages. See Hust v. Moore-McCormack Lines, Inc., 180 Or. 409, 417, 177 P. (2d) 429. They contend, however, that the constitutional provision in question has conferred on this court the authority to inquire into the amount of the verdict and, if it deems the damages excessive, to reduce them and enter a judgment for a lesser amount fixed by the court — this without regard to whether or not reversible error or any error was committed on the trial.
The question being an open one (Hust v. Moore-McCormack Lines, Inc., supra) and one of far-reaching importance, we requested Eugene K. Oppenheimer, Esquire, and B.A. Green, Esquire, to file briefs as amici curiae and to participate in the oral argument. The court desires at this time to acknowledge its indebtedness to these eminent members of our Bar, and to those whom Mr. Green associated with himself in the preparation of his brief, for their willing response to this call to professional duty and the industry and learning which they have brought to its discharge.
A brief statement of the evidence will suffice. The plaintiff, a young woman employed in a Portland shipyard, sought to gain admission to The Music Hall, a tavern of which the defendant was the proprietor, in order to a see a friend who had promised to be there at the time and pay the plaintiff a small debt. According to the plaintiff's evidence, without any provocation on her part, she was roughly evicted from the Music Hall by the defendant's son, who was an employee; was slapped, pushed and kicked by the defendant and his son, who directed profane language at her; was carried downstairs in a "bear hug" by a police officer employed by the defendant, and detained until the patrol wagon arrived and carried her off to the police station. Defendant's version of the episode was quite different; but the jury's verdict settles the conflict.
There is no evidence that the plaintiff was seriously injured. She testified that she had a bruise on her leg and one on her wrist as a result of the assault. She lost no time from her work.
The court is of the opinion that the verdict of $10,000.00 is excessive. Some members of the court think that only the award of punitive damages is excessive; others that both the awards of compensatory and punitive damages are excessive. Since a majority are of the opinion that this court has no power to disturb the verdict, it is not deemed necessary to discuss the grounds for these divergent views.
Article VII, § 3, of the Constitution, adopted by the people in 1910, reads as follows:
1. Notwithstanding the failure of the defendant to assign as error the Circuit Court's denial of their motion for a new trial, we asked counsel to present in argument the question of the trial court's power over the verdict. We did so for the reason that the first sentence of Art. VII, § 3, applies both to the Circuit Court and to this court, and it was thought that consideration of the Circuit Court's power, as affected by the...
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