Summary
In Benjamin v. Stewart, 61 Cal. 605, at page 608, the court says: "Section 657 provides that a new trial may be granted for the cause of `excessive damages, appearing to have been given under the influence of passion or prejudice'.
Summary of this case from Bakurjian v. PughOpinion
[Syllabus Material] [Syllabus Material] Department One Rehearing Granted 61 Cal. 605 at 610.
Appeal by the defendants, J. D. R. Stewart and James Morgan, from an order granting a new trial in the Fifteenth District Court, in and for the City and County of San Francisco. Dwinelle, J.
COUNSEL
The statement, on which alone the motion for new trial was made, contains no specification of any error in law or fact as to the defendant Morgan, and, therefore, as to him should have been " disregarded on the hearing of the motion." ( C. C. P., § 659.)
This statute is mandatory. (Partridge v. San Francisco , 27 Cal. 416; Hidden v. Jordan , 28 id. 312; Zenith G. & S. M. Co. v. Irvine , 32 id. 303; Martin v. Matfield , 49 id. 43; Coleman v. Gilmore, id. 340; Smith v. Christian , 47 id. 19; Doherty v. Enterprise M. Co. , 50 id. 187; Eddelbuttel v. Durrell , 55 id. 277.)
As to J. D. R. Stewart, against whom there was a verdict for plaintiff, with fifty dollars damages, the only ground upon which the new trial could have been granted, was insufficiency of the damages, as that is the only ground specified in the statement. There was no evidence by which any actual damage could have been estimated or measured by the rule of compensation. Therefore, under the general rule adopted by our Civil Code (Sec. 3274), making compensation the proper measure of damages, no more than nominal damages could have been found.
The only exception to this general rule is that contained in Section 3294 of the Civil Code: " Where the defendant has been guilty of oppression," etc., which, as a rule of law, simply defines the class of cases in which exemplary damages " may" be given; but furnishes no measure by which they may be ascertained, except the honest, unbiased judgment of the jury; hence, there can be no ground for inteference by the Court, except that the verdict " is the obvious result of passion, prejudice, or corruption." (Sedgw. on Dam. (6th ed.) 661, and note; Id. 570; Dorsey v. Manlove , 14 Cal. 554.) In actions of tort, " the general rule is, that a new trial will not be granted for smallness of damages." (Sedgw. on Dam. (6th ed.) 766.)
P. Vanclief, for Appellants.
G. F. & W. H. Sharp and John L. Love, for Respondent.
The second, third, and fifth specifications are sufficient to include Morgan. The verdict of the jury was certainly irregular in this, that it did not find on the issue raised by plaintiff's complaint and Morgan's answer.
The verdict of the jury should have been vacated, and a new trial granted by the Court on its own motion, without the application of either party, because there was a plain disregard by the jury of the instructions of the Court and the evidence in the case, and because the verdict was rendered under the influence of passion and prejudice, and under a misapprehension of the instructions of the Court. ( Code of Civ. Proc., § 662.) " Damages must in all cases be reasonable." ( Civil Code, § 3359.) The jury should have rendered exemplary damages. (Id., § 3294; Sedg. on Dam. (5th ed.) 710; Richards v. Rose, 24 Eng. L. & Eq. 406; Richards v. Sanford, 2 E. D. Smith, (N.Y.) 349; Collins v. Albany & Schenectady R. Co., 12 Barb. (S. C.) 492; Clapp v. Hudson R. R. Co. , 19 Id. 461; Hilliard on New Trials, 574, c. 17, Sec. 27 (2d ed.); Levi v. Milne, 4 Bing. 195; Mariani v. Dougherty , 46 Cal. 26; Bacot v. Keith, 2 Bay, 466.)
JUDGES: McKinstry, J. Ross and McKee, JJ., concurred.
OPINION
McKINSTRY, Judge
After the foregoing decision was rendered, a rehearing was had in bank, upon which the following decision was rendered:
The Court:
We are satisfied with the views expressed by Department One of this Court in its opinion in this case, filed March 20, 1882 (9 P. C. L. J. 273), and for the reasons therein given the order appealed from is reversed and the cause is remanded.