Opinion
No. 12436.
1947-01-22
QUILLET et al. v. JOHNSON et al.
O. W. Hess and G. A. Meekison, both of Napoleon, for plaintiffs. G. W. Williamson, of Wauseon, and C. L. Newcomer, of Bryan, for defendants.
Action by Lyle Quillet, an infant, by his next friend, etc., against Clyde Johnson and Fay Johnson for malicious shooting of plaintiff. On defendants' motion for new trial after verdict for plaintiff.
Motion granted.O. W. Hess and G. A. Meekison, both of Napoleon, for plaintiffs. G. W. Williamson, of Wauseon, and C. L. Newcomer, of Bryan, for defendants.
HAM, Judge.
This cause is before the court on motion for a new trial by the defendants. The ground seriously pressed is that the demages assessed are excessive and that the verdict is not sustained by sufficient evidence. Incidentally the correctness of the court's charge is challenged.
The action was brought by Lyle Quillet, a minor, by his next friend, against Clyde Johnson and Fay Johnson for the alleged maliciously shooting of plaintiff by Fay Johnson acting under the direction of Clyde Johnson, his father.
The verdict was for $1250 nominal damages against both defendants, and for $500 punitive damages against Fay Johnson.
The forms of verdict submitted to the jury followed the rule as announced in: Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152,62 L.R.A. 477;Scrambling Co. v. Tennant Drug Co., 25 Ohio App. 197, 158 N.E. 282. 2 Sutherland on Damages, p. 1327 is not in accord with this practice.
The first question in the instant agenda is, therefore; Is the verdict for $1250 for nominal damages, excessive?
Manifestly, if the word is to be construed as hereinafter indicated, it must be.
The jury was warranted in returning a verdict for substantial compensatory damages. It is more than a mere surmise that they so intended. Can the court guess that they did, and arbitrarily construe ‘nominal’ to mean ‘compensatory?’ We think not. If we did it would in our judgment result in saddling the plaintiff with the costs on appeal.
The second question is:
Can the court set aside the verdict for nominal damages and retain the verdict for $500 punitive damages? That must be answered in the negative for two impelling reasons:
First: the verdict must stand or fall in toto.
Second: the verdict for punitive damages requires either nominal or compensatory damages as a predicate.
In 13 O.J., Sec. 144, p. 243, the author truthfully says:
‘The Ohio Courts do not appear to have passed upon the necessity of a showing of actual damages as a basis for recovering exemplary damages.’
In Sibila v. Bahney, 34 Ohio St. 399, the court held that exemplary damages were recoverable upon showing the right to actual damages. Query; what would the court have said, had there been no such showing?
‘Actual’ is often used to denote either ‘compensatory’ or ‘nominal’ damages.
The court there assumed, it would seem, that nominal damages while uncertain still were actual. There is a wealth of authority of the tenor. 25 C.J.S., Damages, §§ 9, 10, pp. 467, 468.
The court in McClanahan v. Koviak, 62 Ohio App. 307, 309, 23 N.E.2d 975, mulled over the meaning of the word ‘nominal’ as did the annotator in 33 A.L.R. 404.
In our opinion the author of the text (15 Am.Jur. 390) defines the word clearly and tersely when he says:
‘Nominal damages are those recoverable where a legal right is to be vindicated against an invasion that has produced no actual present loss of any kind or where, from the nature of the case, some injury has been done the amount of which the proofs fail to show. The law infers some damage from the breach of an agreement or the invasion of a right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms ‘nominal damages.’
In support of the text the author cites, among other cases, First Nat. Bank v. Western Union Telegraph Co., 30 Ohio St. 555,27 Am.Rep. 485.
In the case of Schumacher v. Siefert, 35 Ohio App. 405, 172 N.E. 420, the trial judge (a jury being waived) found that there was ‘no proof of nominal or actual damages shown.’ The appellate court held that one or the other must exist to sustain a verdict or finding for exemplary damages.
That is the only case which even tends to answer this question, and it does so only partially.
Looking, then, beyond our own courts, we find in the 33 A.L.R. at pages 389 et seq., three different rules are recognized by various jurisdictions (a drastic sharp conflict existing):
1. Exemplary damages must be predicated on a finding of compensatory damages.
2. They may be predicated on only nominal damages.
3. They may be allowed without either predicate.
The annotator, at page 403, says:
‘There is, however, a strong line of authority opposed to the position taken in the cases cited in the preceding subdivision. The view that punitive damages may be recovered where the damage is found to have been merely nominal is supported by the weight of authority.’ See also: 25 C.J.S., Damages, § 119, p. 715, and note 75; 2 Sutherland on Damages, pp. 1323, 1324; 15 Am.Jur. 708.
In its charge the court followed the second rule referred to above.
Third question-the evidence and the charge.
That there were actionable injuries sustained is beyond cavil.
Defendant Fay Johnson admits he shot the plaintiff. While in his answer he says that he did so in order to apprehend the plaintiff for stealing some half dozen melons, yet in his testimony he made no such claim. Nor, when he had apprehended the plaintiff there not only was no attempt to arrest, but in fact subsequent events tended to establish the contrary and that it was a ‘settlement’ that Fay Johnson sought by his acts.
The fact that these defendants pursued the plaintiff in their automobile with a shotgun is some evidence, at least, of their intention. There could hardly be but two reasons for carrying that gun. One would be to hunt coon, but the jury could well have doubted that one hunts coon at night in an automobile on a public road.
Counsel insist that Fay Johnson was lawfully attempting to arrest the plaintiff for $50 injury to growing vines, etc. True the defendant Clyde Johnson says the damage was $50.00. Patently a mere conclusion. Nor did Fay Johnson know prior to the shooting in the public road, that a single leaf had been disturded.
The attempt to justify the shooting as being done to apprehend a felon failed, and the court rightly instructed the jury that as a matter of law the shooting was unlawful.
Counsel cite the case of McClanahan v. Koviak, 62 Ohio App. 307, 23 N.E.2d 975. A careful reading of that case, we think will show that the action of this court in setting aside the verdict is clearly supported by that decision, and in that case the verdict was also set aside.
Courts should be slow in setting aside a verdict which is the judgment of a body entrusted with the duty and power to determine the facts.
Yet when the verdict is not in accord with established rules of law, the law must prevail.
Reluctantly, the court grants the motion for a new trial.
The entry setting aside the verdict shall follow the entry permitting the plaintiff to amend the amended petition, thus preserving the rights of the plaintiff if he desires to present the case for review.
To the same end, the entry may show that the sole ground for the court's action is that the verdict as to nominal damages is excessive. That permits a review with a certainty as to the issue.
Exceptions to plaintiff.