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Substantial support is found for this view "These, it will be seen, are but the ordiin the case of Wall et al. v. Livezay, 6 Colo., nary cases of permitting a remittitur where at page 465, where this is said:

the measure of damages is matter of law, "In relation to the amount of damages and the court can determine with certainty awarded the plaintiff, we have to say that, what damages the piaintiff is entitled to rein cases of this character, the law does not cover by applying the law to the evidence. warrant us in disturbing the verdict where But the present is a very different case. no important error has occurred on the trial, Here the law furnishes no other criterion by unless the amount of damages allowed is so which to measure the damages wbich may be manifestly disproportionate to the injury re- given than the discretion and sense of right ceived as to make it apparent that the jury and justice of the jury; and reserves to the were influenced by prejudice, misapprehen- court no other control over the verdict than sion, or by some corrupt or improper consid- to grant a new trial, where the damages are eration."

so excessive as to bear the evident impress And again in City of Denver v. Dunsmore, of prejudice, passion, gross ignorance or cor7 Colo. 328, 3 Pac. 705, this court said: ruption. In cases where there is no certain

“Second. Upon the exception reserved to measure of damages the court will not subthe overruling of the motion for a new trial, stitute its own sense of what would be the on the ground assigned by appellant, that proper amount of the verdict, and will not the damages given by the jury were exces- set aside a verdict for excessive damages, sive, many of the same principles just an- unless there is reason to believe that the nounced apply. The true measure of dam- jury were actuated by passion, or by some ages is, as contended for, compensatory only. undue influence, perverting the Judgment. No But where the amount of damages does not more will the court substitute its sense of depend on computation, as in cases for per- what would be the proper amount of the versonal injuries, as we said in Wall et al. v. dict where it is so excessive as to warrant Livezay, 6 Colo. 465: 'It is exclusively the the belief that the jury have been misled eiprovince of the jury to estimate and assess ther by passion, prejudice or ignorance; but the damages, and the amount to be allowed will set the verdict aside altogether, and in such cases rests largely in their sound dis- grant a new trial. For to permit the verdict cretion.' And, as there announced, to war- to be reduced to an amount which the court rant the court in interfering with that dis- might think reasonable in such a case would cretion, it must be apparent that the amount be to substitute the opinion of the judge for of damages given by the jury is so dispro- the verdict of the jury, and, in effect, to deportionate to the injury received as to show ny the aggrieved party the right to a trial that the jury were influenced by prejudice, by an impartial jury. Where the verdict misapprehension, or by some corrupt or im- was confessedly so flagrantly excessive, as proper consideration."

the remittitur admits it to have been in this To the like effect is D. & R. G. R. Co. v. case, it must be ascribed to prejudice, parHeckman, 45 Colo. 470, 101 Pac. 976.

tiality, passion, or some undue or improper In 18 Ency. P. & P., at page 125, it is said: influence or cause, perverting the judgment

"When by statute a new trial is given as of the jury; and to permit any part of it to of right to the defendant and the recovery stand would not be consistent with the presis excessive, a remittitur cannot be entered ervation of the impartiality, integrity and without his consent."

purity of the trial by jury.” In 14 Ency. P. & P., page 756, it is said: [2] The right, by this provision, to grant

"Where the damages are unliquidated or new trials, because of excessive verdicts, unthere is no fixed rule by which the measure less influenced by passion or prejudice, havof damages can be ascertained, as in torts ing been withdrawn from the courts, it logiand personal injury cases, the amount is re-cally follows that when, under this particuferred to the discretion of the jury, and the lar subdivision of the Code, it was found that court will not ordinarily interfere. In such the verdict was excessive and a remittitur cases no mere difference of opinion as to the of nearly three-fourths of it was required, amount of damages will justify an interfer- such finding, although the judge may have ence by the court unless the amount is so declared that he was not able to say that the unreasonable and excessive as to be indica- verdict was returned as the result of passion tive of passion, prejudice, partiality, or cor- or prejudice, was, as matter of law, a findruption of the jury."

ing to that effect, and the verdict must be so The case of Thomas v. Womack, 13 Tex. treated. Upon such a verdict defendant had 580, was an action for damages for assault an absolute right, under the Code, to a new and personal injury; there was a verdict for trial, and the court had no more authority to $10,000; upon motion for new trial the deny it, or disregard a portion of the verplaintiff remitted $8,500; thereupon the mo- dict and enter a judgment upon the residue, tion was denied and judgment entered for than it had to deny the plaintiff a jury trial, $1,500. From this ruling defendant appeal- or enter judgment against it without any ed, and assigned error upon it, and the court, trial at all. Still, without a verdict for that after commenting upon the authorities relied sum, and indeed without any lawful verdict, upon to support the ruling, said:

judgment was given for $10,000 upon the

mere consent of plaintiff to accept it. That, ered in comparison with verdicts in similar action was a plain violation of law, because cases, which our own and other courts of what the Code of Civil Procedure gives, in last resort have said furnish inherent evithe situation here' disclosed, and all that it dence, solely because of the large sums algives, is a right to the losing party to have, lowed, of having been returned through the and it makes it the duty of the court to influence of passion or prejudice, such, or grant, a new trial.

like considerations, must also be held to In Sloan v. N. Y. Cen. & Hud. River R. R. have been the moving cause for the one unCo., 1 Hun, 540, a personal injury case, the der review. We are all the more persuaded New York court said:

to this view because another jury, at a for"The court cannot, in action of tort, re- mer trial, having equal opportunity with the duce a verdict of a jury, because it is deem- one that returned this verdict, to ascertain ed excessive. The only remedy in such a and know the character and extent of the case, is to set it aside and order a new injuries sustained, and as well all the facts trial."

and grounds upon which plaintiff's right to In 18 Ency. P. & P., page 144, it is said : recover at all were based, fixed the sum of

"Where the damages are so excessive as to $5,200 as proper compensation; and by the be accounted for only on the ground of pas- further fact that the presiding judge at the sion or prejudice on the part of the jury, a trial in which this particular verdict was remittitur will not cure the error, as such returned, required that $28,750 should be repassion or prejudice will be deemed to have mitted therefrom; and also by the further influenced the finding of the jury on the is- fact that the plaintiff consented to the sursues of fact."

render of that vast sum. 'If $38,750 fairly In Gulf, etc., Ry. Co. v. Coon, 69 Tex. represented the amount which plaintiff just730, 7 S. W. 492, the court, in a suit for perly ought to recover, for the injuries, temsonal injury to a passenger, said: “The porary and permanent, which he sustained, trial judge concluded that it was excessive, and for his mental suffering and physical as he required plaintiff to enter a remittitur pain, we are quite persuaded that it is highof three thousand dollars as a condition to ly improbable that another jury would have his overruling the motion for a new trial. declared less than one-seventh as much sufIf the judge was of opinion the verdict was ficient to satisfy his claim; nor is it likely excessive he should have granted a new that the judge presiding at the trial in which trial. The damages are assessed by the the verdict was returned, being well and fuljury; if the verdict is excessive the judge, ly advised, with all material facts before in actions like this, has no measure by him, would, or could, under such circumwhich to determine how much it is exces- stances, say that the amount returned was sive; his attempt to do so is an invasion of almost four times the sum, which in his the rights of the jury. His only course in calm, impartial and judicial judgment, the such a case is to grant a new trial." jury should have given; nor does it seem

Since, therefore, on principle and author- possible that had the plaintiff himself, or ity, the finding of the court that the verdict his counsel, believed that he was entitled, was excessive must be treated, in legal ef- in fairness and truth, to $38,750, there would fect, as a finding that it was returned under have been voluntarily remitted of that the influence of passion or prejudice, it was amount, once secured to him, more than reversible error to allow plaintiff to remit two-thirds of it. a portion of it, and enter judgment for the The plaintiff was by occupation a miner residue, because the gist of the whole mat- and able, according to proofs, by working ter is that no trial by an impartial jury has continuously, to earn approximately $1,200 a been had. To permit the court, in such sit- year. That plaintiff was seriously, painfully uation, to substitute its judgment, as to the and to a degree permanently injured, seems amount which the plaintiff ought to have, clear from the evidence. It appears that his for that of a jury, would be in effect to right collar bone was fractured, and three deny the right of the defendant to such a ribs of the lower left side broken ; that his trial as the general laws provide and the general circulation was impaired, and that Constitution guarantees.

the broken ribs have never united, but ex[3] Independent of a consideration of the tend out from the general contour of the finding of the court in its purely legal effect, chest about an inch, and do not give such in the light of former decisions of this full protection to some of the vital parts, as court, and of the courts of last resort in they should and would afford in normal conother states, upon the same question, it is dition. That the right collar bone is shortinconceivable that, upon the facts proven, a ened one-half an inch and also the left leg, verdict for the extraordinary sum of $38,- to a like extent, which makes him perma. 750 represents the sound, wholesome, unim-nently lame. He is compelled to constantly passioned and impartial judgment of a jury, wear a belt, to mitigate the discomfort whose sole duty, under the law and facts, caused by the condition of the broken ribs. was to award just and reasonable compensa- No injury is shown to his mental faculties; tory damages only. Upon all of the evi- none of his limbs were broken, and none of

shows that at the time of the trial he was ing with verdicts of juries, and that an apable to be about without the aid of crutches pellate court should hesitate not only because or other assistance, and that he had recent of the delicacy of undertaking to set aside ly been upon prospecting tours. The only the finding of the constitutional triers of direct evidence going to his ability to work i fact, but because of the concurrence with the at the time of the trial was the answer of jury of the judge presiding at the trial. Bur the physician who attended him in his ill- if, after giving due weignt to the verdict of ness, to the question whether in his present the jury and the approval of the circuit condition he could do a man's work, which judge, this court is clearly convinced, in a was, "Not' at the present time."

case in which the plaintiff is only entitled to The nature and extent of the injuries con- recover compensatory damages, that the jury sidered, the verdict is quite the largest to has gone beyon'l compensation and inflicted be found in the annals of judicial history. punishment on the defendant under the inThe deliberations of the jury are secret, fluence of passion or prejudice, it is bound by the presence or absence of passion or preju- the weightiest considerations of duty to didice concerning them must therefore, as a rect a new trial. To refuse to do so is to rule, be determined from the amount of the abandon the defendant to the arbitrary will verdict itself. If there is in the verdict in- of the jury. The supervising control of the herent evidence of such passion or prejudice courts, both of original and appellate juristhere should be no hesitancy on the part diction, is, in this country, an integral part of the court to so declare, and act according of the jury system, and as indispensable to ly. There are three cases of special inter- the right administration of justice as the est which have been determined by this panel of twelve men. court, where it was held that the verdicts, "We are well satisfied that the damages because of their respective amounts, carried are excessive and the result of passion or inherent evidence that they were induced by prejudice in the jury, and the judgment is passion or prejudice. We refer to the rea- reversed and the cause is remanded with disoning in these opinions in support of our rections to grant the appellant a new trial.” conclusion here, as being in harmony with These suggestions are specially applicable it. The cases are Deep Mining & Drainage here and correctly, as we think, indicate the Co. v. Fitzgerald, 21 Colo. 533, 43 Pac. 210, duty of the court in the present case, as upon Davis Iron Works Co. v. White, supra, and a full consideration of the entire record, with D. & R. G. R. R. Co. v. Scott, 34 Colo. 99, all inferences legitimately to be drawn there81 Pac. 763. In each the record shows the from, we reach the irresistible conclusion injuries to have been certainly as grievous that, when viewed in the light of the facts as those received by plaintiff, and without and circumstances disclosed by the evidence, doubt in the Fitzgerald Case vastly more a verdict of such unusual proportions must serious and abiding.

have been the result of either passion or prejAn instructive and leading case, also in ac- udice, or of a total misconception by the jury cord with our views, where a large number of its duties and obligations under the law. of authorities are reviewed and discussed. In either event it is vitiated in its entirety. is that of Louisville & Nashville R. R. Co. v. Upon the authority of Davis Iron Works Co. Fox, 11 Bush (Ky.) 495. That was an action v. White, supra, such a verdict could not for personal injuries, to recover the sum of properly be made the basis for any judgment $150,000, with $5,000 added for medical whatever. A new trial should have been treatment and attendance, and $500 for bag- granted. gage lost. The verdict was for $35,500. The [4] There is no general charge of negligence opinion states that the value of the baggage in the complaint. The negligence complained was shown to have been $500, and the ex- of is alleged specifically, and is charged in pense of medical treatment and attendance these words: $5,000; and for personal injuries $30,000. "Plaintiff alleges that on the said first day There was no evidence in the case of pas- of May, 1905, when the plaintiff entered on sion or prejudice, except as furnished by the the first work of the day the defendant Walamount of the verdict. Upon a full consid- ter Swanson entered the stope and ordered eration of the whole record, and a search- him to get a bar and spread the top posts ing analysis of the entire transaction, the of the top square set so as to allow a discourt reached the conclusion that the amount placed cap to slip back in its place; that of the verdict alone furnished evidence that plaintiff refused to do so, replying to Swanit must have been reached through the in- son that the braces below were shot away fluence of passion or prejudice. The injuries and it was dangerous to spread top posts to Fox seem to have been far more severe without restoring them and that if let alone and permanent, and his suffering far great he would restore the cap to its place safely er, than plaintiff's. In concluding the opin- and properly; that said Swanson then knowion, having reference to the duties and ob- ing that the braces were shot away and that ligations of courts under such circumstances, pressure spreading the top posts would probit was said:

ably cause the entire timbering to collapse, “We concede that courts of all grades without replacing the braces negligently should exercise extreme caution in interfer- spread the top posts with a cross-bar and

thereby caused the whole timbering at the , and in possession either personally or through point to collapse burying plaintiff in the a tenant, amounted to an affirmative statement ruins, without any fault or negligence on his of a fact, and not a mere expression of opinion.

[Ed. Note.-For other cases, see Exchange of part."

Property, Cent. Dig. 88 3,5; Dec. Dig. $ 3.*] The testimony of the plaintiff shows that the thing which in fact caused the timbering 2. EXCHANGE OF PROPERTY ($ 3*)–EXCHANGE

OF REAL ESTATE — MISREPRESENTATIOXS to collapse, burying him in the ruins, was the RELIANCE. act of Swanson in giving a violent surge on Plaintiff, a resident of Colorado, negotiated the bar and throwing his weight heavily exchange of land in Colorado for land in Mis

with defendant, a resident of Missouri, for the against one of the posts of the square set. souri. L. fendant represented that he was the Upon his cross-examination the following tes- owner of his land and in possession through a timony was adduced to this point:

tenant. His contract to sell to the party in pos"Q. Do you mean to tell the jury that the on an abstract, so his possession of the land was

session was not recorded, and would not appear collapse occurred without the stoping bar be the only notice of his rights. Held, that the ing tightened any more at all?

defendant was entitled to rely on plaintiff's "A. Yes, sir.

representations. "Q. How did that happen?

[Ed. Note. For other cases, see Exchange of "A. Mr. Swanson was standing here, and Property, Cent. Dig. $$ 3, 5 ; 'Dec. Dig. $ 3.*] I stepped back, started to step out from here, 3. EXCHANGE OF PROPERTY ($ 3*)–EXCHANGE

OF REAL ESTATE-FRAUDULENT REPRESENwhere it was perfectly safe, and Mr. Swan

TATIONS IN NEGOTIATIONS. son yelled at me; he said, 'The bar isn't tight Defendant proposed to plaintiff for an exyet,' at the same time giving a violent surge change of their lands and made representations on the bar, throwing his weight heavily as to his ownership of his land. Plaintiff made

a counter proposition, and negotiations resulted against this corner post here, and the square in an exchange on terms specified. Defendant's sets collapsed, and caught both of us.” representations made were never changed, but There was other testimony by plaintiff, tions. The representations were false because

were permitted to stand throughout the negotiawhich showed that the bar between the defendant was not the owner and in possession, square sets had not been tightened and that but was under contract to sell to a third person there was no pressure from it against the who was in possession. Held, that the repretimbers, and that the violent surge upon the change, and justified a rescission of the transac

sentations effected the final contract of exbar and pressure of Swanson upon the corner tion. post, in throwing his weight heavily against [Ed. Note,-For other cases, see Exchange of it, was in fact the proximate cause of the Property, Cent. Dig. $$ 3, 5; Dec. Dig. $ 3.*] collapse. It is urgently argued by counsel 4. EXCHANGE OF PROPERTY ($ 3*)-EXCHANGE that there is such variance between the OF REAL ESTATE-FRAUDULENT REPRESENproofs which show the particular negligence

TATIONS. which resulted in the injury complained of, for the land of plaintiff, and represented that

Defendant proposed to exchange his land and that which is specifically charged in the he was the absolute owner of his land in fee complaint, as having occasioned it, that a re- simple and in possession thereof by himself or covery in the present state of the record can- alleged tenant was not such, but was in posses

through a tenant, while as a matter of fact the not properly be sustained. While we do not sion under a contract of purchase. Plaintiff place the reversal of the judgment upon this relied on the representations, and contracted assignment, we recognize the force of the for the exchange. Held, that the misrepresen

tations related to the subject of the transaction, claim, and suggest, in the event of a new tri- and must be presumed to have been made to be al, that the complaint, out of proper caution, relied on, and to induce the exchange. be amended to correspond to the proof. [Ed. Note.--For other cases, see Exchange of

Since we conclude that the judgment must, Property, Cent. Dig. $$ 3, 5; 'Dec. Dig. $ 3.*] in any event, be reversed for the reason stat-5. EXCHANGE OF PROPERTY (8 3*)-FRAUDed, we deem it unnecessary and unwise to

ELEMENTS consider or pass upon the other numerous er-concerning the title to land exchanged for other

The making by a party of false statements rors assigned and argued. The judgment is land, knowing them to be untrue, and made reversed and the cause remanded to the trial for the purpose of inducing the other party to court for further proceedings, in conformity rely thereon and enter into the transaction, and

actual reliance thereon by the other party, is with the views here expressed.

ground for rescission. Reversed and remanded.

[Ed. Note.-For other cases, see Exchange of

Property, Cent. Dig. $$ 3, 5; Dec. Dig. $ 3.*] (50 Colo. 443)

6. PLEADING ($ 17*) — ACTIONABLE FRAUD

COMPLAINT-SUFFICIENCY.
BROWN v. LINN.

A complaint which alleges that defendant

represented that he was the absolute owner in (Supreme Court of Colorado. May 1, 1911.) fee and in possession of his land, and that plain1. EXCHANGE OF PROPERTY (8 3*)—EXCHANGE tiff, relying on the representations, made the

OF REAL ESTATE-FRAUDULENT REPRESEN- exchange, and that defendant had contracted to TATIONS.

sell the land to a third person who was in posStatements by one in negotiations for the session as purchaser under the contract, suffiexchange of lands that he was the absolute own- ciently alleges that the representations were er in fee of his land and in possession thereof false. through his tenant, and conduct naturally in [Ed. Note-For other cases, see Pleading, ducing the conclusion that he was the owner Cent. Dig. $$ 38, 41, 350 ; Dec. Dig. $ 17.*]

7. JUDGMENT (253*)-CONFORMITY TO PLEAD-, and that Brown would make Jackson surINGS.

render. A short time after this, Linn went A defendant alleging in his answer a specified payment by him may not complain of the to Missouri to investigate. He found that judgment granting him relief only to the extent Jackson was in possession of the land, under demanded in the answer.

the contract, and had been in such posses[Ed. Note.-For other cases, see Judgment, sion several months before Linn and Brown Cent. Dig. $$ 443, 444; Dec. Dig. $ 253.*]

had exchanged deeds, and Jackson said he Appeal from District Court, Mesa County; I expected to remain in possession until be Sprigg Shackleford, Judge.

paid for the land under his contract, unless Action by Charles Linn against Addison Brown bought him out. Linn returned at F. Brown. From a judgment for plaintiff, once to Colorado, and three or four days defendant appeals. Affirmed.

thereafter began this action to obtain a reGriffith & Watson, for appellant. A. H. scission of the contract with Brown and a Davis and T. M. Morrow, for appellee. reconveyance of the Mesa county land, aft

er being informed by Brown that the latter MUSSER, J. The appellant, Brown, who had made no settlement with Jackson, and resided in Missouri, exchanged 100 acres of after offering to restore to Brown all that land situated in that state for 14 acres sit- Linn had received, and being informed that uated in Mesa county, in this state, belong- Brown would do nothing until twelve men ing to appellee Linn, who resided thereon. said he should. Deeds were exchanged through Brown's son The foregoing facts appear mostly from in-law, who resided in Mesa county, and uncontradicted evidence, and from the preLinn delivered possession of the Colorado ponderance of evidence where there was any land to Brown. As a part of the transac- conflict. The findings and judgment of the tion, Brown paid Linn $200 in cash, and as- lower court were in favor of Linn, and were sumed an incumbrance of $600 on the Mesa in line with the facts as above stated. county land. The negotiations were begun Among the findings was the following: “The several months before, when Brown was transaction, so far as the defendant was visiting in Mesa county, and continued aft- concerned, shows an utter lack of good faith er his return to Missouri by direct corre and fair dealing on his part." Brown enspondence and through the son-in-law. The deavored to make it appear by his evidence, first proposal was not accepted by Linn. He and his answer alleges, that he had Jackmade a counter proposition through the son- son's consent to trade the land, and that he in-law, which was accepted by Brown, and secured the surrender and cancellation of the deeds were exchanged. In the course of the contract, and settled with Jackson after the negotiations, Brown, in a letter to Linn, the exchange of deeds and a few days bedescribed the land, its location and improve-fore the action was brought, and that at the ments, and said that he had “a good ab- time of the cancellation he rented the land stract of title and deed and the land is paid to Jackson under authority from Linn. The for and clear,” and in another letter, writ-court, however, found that Brown did not ten a few days afterwards, Brown said he settle with Jackson and procure the cancelhad sent a deed and abstract of perfect tilation of the contract until about three tle to his son-in-law; that he would give full months after the action was brought. Even possession of the Missouri land on a certain if Brown did secure a settlement with Jackdate and wanted to know at once what Linn son a few days before the commencement of would do, so that the man on the land might the action, it is not shown that Linn was have sufficient time to enable him to move informed of it and that he knew anything conveniently before that date. Delay in the about it. negotiations prevented the exchange of deeds [1] What Brown said in his letters could until a few days after the date mentioned by but produce the conviction that he was the Brown for delivery of actual possession. A absolute owner of the Missouri land in fee few days after the exchange of deeds, simple, and in possession thereof through a Brown came to Mesa county, and, upon in- tenant of some kind. These were not mere quiry from Linn, informed the latter that expressions of opinion with reference to the the Missouri land had been leased for the matter, but were statements of facts. Aside year to one Jackson for $90 and payment of from this, Brown's conduct and bearing in taxes. This appears to have been satisfac- the negotiations prior to and at the time of tory to Linn, and his only concern seems to the exchange of deeds, as shown by the genhave been as to the time when Jackson would eral tone of his letters, were the conduct pay him the rent. A short time after this, and bearing of an absolute proprietor whose Linn learned that Brown and Jackson had right to trade his land and to convey it ab entered into a contract of purchase and sale solutely was unquestioned, and were such as of the land more than a year before. Upon would naturally produce the conviction that inquiry, Brown informed Linn, in substance, he was such owner and in possession of the that Jackson had forfeited the contract of land either personally or through a tenant. purchase and sale and was to surrender it, Such conduct and bearing was an affirma*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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