Opinion
No. 34525.
September 22, 1941.
APPEAL AND ERROR.
Where trial court instructed jury not to award plaintiff punitive damages, Supreme Court, on suggestion of error after affirmance of judgment on verdict for plaintiff, must construe verdict as including only actual damages and, if amount thereof is excessive, reverse judgment as to damages, unless plaintiff enters remittitur.
APPEAL from the circuit court of Oktibbeha county, HON. JOHN C. STENNIS, Judge.
Frank F. Roberson, Clinton H. McKay, and Lucius E. Burch, Jr., all of Memphis, Tennessee, and B.M. Walker, Jr., of Starkville, for appellant, on suggestion of error.
In this case the Circuit Court of Oktibbeha County allowed to stand a verdict of $1500 for nervousness, nausea and headache continuing for approximately forty-eight hours, which this Court affirmed without an opinion. Thereupon, appellant availed itself of the privilege of suggesting error in that under the law of the case as fixed by the instructions of the trial court there could be no recovery of punitive or exemplary damages and that as compensatory or actual damages the verdict of $1500 was grossly excessive.
On appeal the jury will be presumed to have followed the instructions of the trial judge.
There is no principle more widely accepted than that an appellate court will presume that the jury performed their sworn duty to obey the judge's instructions as to the applicable law of a case. This Court has long treated this rule as axiomatic, as is illustrated by its language in Illinois Central R.R. v. Harper, 83 Miss. 560, 35 So. 764 (1903).
Unequivocal support for the Mississippi rule is found in general collations of authority. Thus, it is stated in 3 Am. Jur., Appeal and Error, Sec. 951; 2 R.C.L., Appeal and Error, Sec. 186; 5 C.J.S., Appeal and Error, Sec. 1652; 4 C.J., Appeal and Error, Sec. 2717; Van Meter v. Gurney, 240 Ill. App. 165 (1926).
It was held in Armour Co. v. Tomlin, 42 S.W.2d 634 (Tex. Civ. App. 1931), that a jury instructed to restrict damages to such only as were the proximate result of a collision would be presumed on the appeal to have done so.
Spiker v. Ottumwa, 193 Iowa 844, 186 N.W. 465 (1922); Curry v. Franklin County, 135 Ohio St. 435, 21 N.E.2d 341 (1939); Boulton v. Telfer, 52 Idaho 185, 12 P.2d 767 (1932).
Other cases on the general proposition that appellate courts will presume that the jury followed instructions are plentiful. Gregory v. Morris, 96 U.S. 619 (1877); Wock v. Wheeling L.E. Ry., 61 F.2d 674 (C.C.A. 6th, 1932); Woodman v. Peck, 7 A.2d 251 (N.H. 1939); Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413 (1935); Molloy v. Mitchell, 223 Ala. 666, 137 So. 896 (1931).
The trial court charged the jury that it could not award plaintiff punitive damages but actual damages only.
The rule is well-settled in Mississippi that, absent physical injury, there can ordinarily be no recovery of actual compensatory damages for mental anguish or humiliation. Gulf, M. N.R.R. v. Thornberry, 185 Miss. 576, 188 So. 545 (1939); Doherty v. Miss. Power Co., 178 Miss. 204, 173 So. 287 (1937); Bonelli v. Branciere, 127 Miss. 556, 90 So. 245 (1922); Pullman Co. v. Kelly, 86 Miss. 87, 38 So. 317 (1905).
See Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480 (1930).
Equally well-settled as the general rule, however, is its exception that in the case of willful or wanton wrong there can be a recovery of compensatory damages for mental suffering and humiliation irrespective of physical injury. Gulf, M. N.R.R. v. Thornberry, 185 Miss. 576, 188 So. 545 (1939); see Western Union Telegraph Co. v. Rogers, 68 Miss. 748, 757, 9 So. 823, 825 (1891).
Clearly, in the case at bar, it was to take care of the exception to the general rule of no recovery of compensatory damages for emotional disturbances dissociated from physical injury except in cases of willful and wanton wrong that Instruction No. 5, after setting forth the general rule as to actual damages, sets forth the exception by concluding: "unless you believe that plaintiff has shown by a preponderance of the evidence in this case that there was willful, wanton, and gross misconduct on the part of the conductor."
This was not, as appellee urges, an instruction to the jury that punitive, exemplary or vindicative damages could be recovered under the facts in this case. The instruction relates to actual compensatory damages only.
Considered as actual damages only the verdict of $1500 is grossly excessive.
Responding to question (2) propounded by the Court, the damages awarded considered only as actual or compensatory damages are grossly excessive within the rules governing that question.
A verdict of $1500 as compensatory damages for nervousness and mental anguish which caused headache and nausea lasting approximately 48 hours is clearly grossly excessive when tested by the decisions of this Court, to some of which reference is here made.
See Meridian Coca-Cola Co. v. Illges, 187 Miss. 27, 191 So. 817 (1939); Pullman Co. v. Anderson, 119 Miss. 791, 81 So. 276 (1919); Mobile Ohio R. Co. v. Farrior, 115 Miss. 96, 75 So. 777 (1917); Yazoo M.V.R. Co. v. Smithart, 111 Miss. 299, 71 So. 562 (1916); Burns v. Alabama V.R. Co., 93 Miss. 816, 47 So. 640 (1908); Case v. Yazoo M.V.R. Co., 114 Miss. 21, 74 So. 773 (1917); Yazoo M.V.R. Co. v. O'Keefe, 125 Miss. 536, 88 So. 1 (1921); Gulf, M. N.R. Co. v. Jones, 155 Miss. 639, 125 So. 114 (1929); Alabama V. Ry. v. Bell, 29 So. 818 (Miss. 1893); Mobile, J. K.C.R. Co. v. Kranfield, 92 Miss. 494, 46 So. 71 (1908); New Orleans, etc., R. Co. v. Ward, 132 Miss. 462, 96 So. 401 (1923).
John D. Greene, Jr., of Starkville, for appellee, on suggestion of error.
"The Court desires a response from counsel for the appellee to the following propositions:
"The Court below charged the jury that in the event it should find for the appellee, it could not award her punitive damages but actual damages only, because of which two questions arise:
"(1) Should the Court presume that the jury obeyed these instructions and did not include punitive damages in its verdict? Should this question be answered in the affirmative, then
"(2) Are the damages awarded considered only as actual damages excessive within the rules governing that question."
If we take only the instructions granted the defendant, after reading them as a whole, it is readily seen that the punitive and actual damage instructions were given on the condition, and subject to the charge: "unless you believe that plaintiff has shown by a preponderance of the evidence in this case that there was willful, wanton, and gross misconduct on the part of the conductor."
Under the rule of law regulating the court in granting instructions allowing exemplary damages, the Court can not instruct the jury to assess exemplary damages for the plaintiff, as a matter of law, even if the testimony in the case justifies such damages for the reason that the assessment of exemplary damages is a question left solely and entirely to the dicretion of the jury.
In this case, the declaration claims punitive damages which the evidence warranted; the instructions granted by the Court, taken as a whole, fully and clearly authorized the jury to assess exemplary damages; and the verdict rendered in this case is clearly one of exemplary damages and under the evidence of the case the amount could not be held excessive even if the jury had rendered a verdict for the full amount sued for, because the evidence is ample to sustain such finding.
A few cases on the rules of law established in the consideration and construction of inaccurate and erroneous instructions:
Walker v. Dickerson, 184 So. 438, 183 Miss. 642; Yorkshire Ins. Co., Limited, et al. v. Brewer, 175 Miss. 538; Metropolitan Life Ins. Co. v. Moss, 192 So. 343; City of Hattiesburg, to Use of Coston v. Beverly et al., 123 Miss. 759, 86 So. 590; Cumberland Telephone Telegraph Company v. Edward H. Jackson, 95 Miss. 79.
Appellee respectfully shows unto the Court that this suit is based on a claim for exemplary damages; that the evidence shown by the record sustains the allegations set out in the declaration, and that the verdict of the jury was fully justified by the evidence; and that the only logical and reasonable presumption that can be had or arrived at from every angle of the case is that the jury included in its verdict exemplary damages and that the verdict of the jury reflects a fair and impartial finding under the evidence in this case.
At a former day of this Court this case was affirmed without a written opinion. A suggestion of error filed by appellant particularly directs our attention to its instruction No. 3, which is as follows: "The court instructs the jury for the defendant that there can be no recovery of punitive damages in this case."
Our attention is called in this connection to the amount of the verdict in the sum of $1500. We are compelled to construe the verdict as including only actual damages, since no other assumption may be indulged except that the jury obeyed the instruction not to consider punitive damages. Illinois Cent. R. Co. v. Harper, 83 Miss. 560, 35 So. 764, 64 L.R.A. 283, 102 Am. St. Rep. 469; Burns v. Alabama, etc., Railway Co., 93 Miss. 816, 47 So. 640; 3 Am. Jur., Appeal and Error, sec. 951. Adjudged as such the verdict is so excessive as to warrant a reversal. Whether or not the appellee is entitled to punitive damages is not before us and we express no opinion thereon.
The suggestion of error will be sustained and the cause and judgment reversed insofar as it fixes the amount of damages awarded, unless the appellee will enter a remittitur of $1000, in which event the judgment of the court below will be affirmed as to the remainder.
So ordered.