*1 entirely within system, routed part of which is portation justifies I dis- city think that fact limits. do not quoted (7), tinction, I nor do think that section 76—2—1 the line above, requires because tax be collected beyond city limits. runs City my opinion patrons Lake hold that Salt
In
beyond
city
transported
limits should
who are
Lines
riding
taxes,
exempt
patrons
while
under
sales
plaintiff’s
under
cir-
identical circumstances on
buses
subject
tax,
cumstances
this case should
discriminatory
interpretation
of our statute
and such
I
makes it unconstitutional.
therefore dissent.
DUFFY
R. CO.
v. UNION PAC.
May 17,
(
No. Decided 7294. Rehearing August denied 1950. *3 S., Error, See 5 C. J. Sec. 1626. Appeal Leverich, Bronson, Miner, B. P. A. Howard M. J. U. F. Coray, City, appellant. Lake for Salt
Rawlings, Black, City, & Wallace Salt Lake for respondent.
LATIMER, Justice. below, by plaintiff Charles
This action was commenced Act, Liability Duffy, Employers’ under Thomas the Federal seq., personal 45 U. C. A. 51 et to recover for S. § injuries employed by him while the defendant sustained happened as a The accident on Jan- railroad switchman. uary 29, 1947, yards Milford, The at Utah. in defendant’s awarding plaintiff $12,500.00 returned a verdict personal injuries $3,500.00 for and deducted the sum of contributory negligence, making plaintiff’s a net verdict $9,000.00 plaintiff. Neither the defendant nor the has raised question sufficiency to the of the evidence to establish as negligence negligence contributory con- the evidence cerning happening accident will be detailed generally. employed had rail- been the defendant approximately years prior
road for date of the years age approximately accident. He was three question operated before the he been months accident had gall day for the removal his bladder. On question working he was on a rear end brakeman Caliente, Nevada, operating train between Lake Salt City, through proceeding Utah. The train east *4 yards plaintiff’s required Milford and duties that he re- align completed certain switches after the train had switch- ing operations yard. in The between the tracks the by operated him referred “hub” switches are to as the distinguished type type and the are “stand-” switches by operated and use of a lever three are between two and long. ground feet The lever rests horizontal with the and operation upward the of lift the manner is to free end to position push op- a vertical then downward on the again posite parallel of the arc. the lever side When 86 locking ground position the it is
with fastened into device. causing injury especially switch had
The become operate water, presence to of hard because of period over a of time around the base of the had collected of switch. Eeither because an accumulation of rust or freezing day Duffy injury on had considerable difficulty changing position of the switch and he as push an exerted unusual return the handle of the to switch parallel position, injury to a he caused the of which he complains. injury, Duffy sharp the time
At of claims felt a he feeling pain in his side. He described the as though running vicinity previous “it as was felt water out his operation.” burning rupture sensation caused subsided, then lasted or minutes and but the area con- completed Duffy to tinued cause and discomfort. his day’s following day work on the visited a doctor in City, diagnosed time, Lake Utah. Salt At that the doctor gall his condition as incisional at the hernia site operation operation bladder incision. The was not then performed. prescribed Instead the doctor a belt which working February wore until he discontinued on 28, hospital 1947. Plaintiff on entered March operated hospitalized was period days. previous operation Due to the fact the had broken open, necessary the doctor concluded it would be overlap the possibility fascia diminish the aof accomplish recurrence necessary and to this it was pull tightly type fascia more than is normal. repair This work resulted in some additional and discomfort. Plaintiff was released to return to work on June employed by at time the trial was still the de- fendant. The doctor made his last examination of *5 9 months 15, 1947, approximately which was December plaintiff’s abdomen operation at that time after complaints as to completely and no was healed by to the doctor. Com- were made a normal plications not encountered and had were recovery. assignments urged by
A have been number of error necessary only defendant, but deem it to consider we one, is, trial court its discretion in not did the abuse granting a new trial because amount awarded grossly ($12,500) excessive and exorbitant appears passion to have been arrived at because of majority prejudice? In view of the fact that a assignment members of this court have concluded that this assigned taken, is well other errors become immaterial. being presently Because of the size of verdicts rendered this court has been faced on numerous with dis- occasions cussing assignment principles involved in this of error. concepts were Some announced in the case of Bennett v. 57; Denver & Rio Grande R.W. Co. 117 Utah 213 P. 2d majority suggested but a of the court did not concur disposition departure, however, of that case. The line of principles not on the majority enunciated but because the members of this court believed the verdict in that did case necessary principles not meet the tests applica- to make the ble. In this instance the principles facts are such that the apply and, repeat reasoning do we therefore some of the used and authorities cited in that case. (5),
Section 104—40—2 provides U. C. A. jury may a verdict of a granted be vacated and a new trial judge damages the trial when appear are excessive and to have passion been under the influence of prejudice. Trial courts of this and other states grafted provision right on to that of the trial grant court refuse a new trial when the were *6 excessive, winning party if the would consent to reduc- a provision by judicial tion. The was thus extended decision permit require to part trial courts to a remission of of damages consequences or suffer the of a new trial. This placed stamp approval court upon procedure, its of that and, many rights has on occasions that our indicated of review are limited to a determination of whether the trial judge granting abused his discretion in not a new trial unless the consented to a reduction in the amount of the verdict.
In the case of Jensen v. Denver & Rio Grande Co., 100, Railroad Utah 138 P. Mr. STRAUP, speaking Justice court, for the stated the rule to be as follows: “* * * vacating granting A court, a verdict and a new trial by merely setting judgment against jury, his or up opinion that of the but usurps judicial jury. power and prostitutes the constitutional trial by Still go cannot be to permitted, unbridled and unchecked. Hence the Code aggrieved granted that a new trial on motion of the be party may by the ground damages appearing court below on the of ‘excessive to have been given prejudice.’ under the influence of passion or Whenever that is made to appear, when its action court, is properly invoked, should require grant a remission or set the verdict aside a new trial. But, before justified the court is that, do it should be made to clearly appear disregarded mistook totally or the rules of law by which the regulated, disregarded were to be or misconceived wholly or all doing gross evidence, committed error palpable by ren- dering outrageous unjust a verdict so enormous or or as to be attributable charge to neither prejudice. nor but evidence, only passion or granted Whether a new trial ground, should or not be should on this largely must necessity, rest within the sound discretion of the trial court. “Still in such court, particular, supreme not or beyond reach. Its action alleged may nevertheless into and inquired reviewed on an abuse of discretion, or a or capricious arbitrary exercise of power in such respect. Such a review a ruling is not review of a question but of fact, law. A
granting refusing or a motion for a new trial is certainly reviewable when proceedings with to it respect are properly preserved and presented. ruling That has not been questioned. Of course, will not be disturbed on involving evidence in or on conflict, matter discretion. Yet our power correct abuse of or plain discretion undo a mere or capricious arbitrary exercise cannot be power doubted.” stray thoughts there
While have been expressed certain court, the rule as in other cases decided Company case, Railroad su stated in the Jensen v. by subsequent generally
pra,
cases.
been
followed
has
123, 126,
Pauly McCarthy,
184 P. 2d
In
v.
Utah
the rule to
as follows:
Mr. Justice
stated
WOLFE
dice,
capriciously
proportionate
to one’s conscience
Utah
as to
necessarily
set
Stephens
decision.
prejudice.
P.
as matter
as a matter
on the
(62
“Where we can
459).
aside and
Utah
85 P. 2d
and the
appear
part
Ranch & Livestock Co. v. U. P.
It
But mere
Jurors cases large injuries verdicts, resulted particularly where the wage costs, permanent disabil- losses, considerable medical gross disfigurement, prolonged ity, bodily function, loss of consequen- pain and combination of all such sustaining have considera- ces. Courts in the verdicts addition, damage, to such tion to those elements of dollar, purchasing power factors as decreased living, possible continuation of the increased cost of present inflationary spiral, the social betterment flowing individual, the loss and the humiliation disfigurement. of limbs or other monetary impossible It is for a court to arrive at the amounts which should be allowed each and all of damage, general judge may, elements of but the trial in a way, injury determine the amount the could award overstepping province. without bounds its reasonably in this case could not find large wage loss, stip had suffered a $1,300; ulated that item amounted to large costs, had incurred medical as the record is silent services; any payments as to for these that there was some *8 permanent disability, form of operation as the was a strengthening operation previous for plain incision and tiff returned to his work approxi as switchman within mately injury; three months after that there was disfigurement, plaintiff visible subjected or that would be prolonged physical pain mental as proven. no such elements are In connection with last item, by the most that can be claimed is that he subjected operation complications to a hernia without physical Moreover, residual effects. suffering subjected he was to was of short duration. Some operation, six plaintiff’s months after the testified, doctor complaint no was made as to or discomfort operation. jury must We assume that awarded $1,300 wages, only sum of for loss of estab- were his damages, special lished $11,200 and this leaves the sum of general damages. get When we in this domain reason- might able minds differ as to what amount excessive. However, beyond there must be a limit which a reasonable jury go cannot and the limit must determined on gross amount of the verdict and not the net amount. Con- ceding jurdrs that in different states and counties have monetary different standards and different ideas as suffering; value of present day costs of living comparatively high; are purchasing power approximately of the dollar has decreased to one-half of years ago; what it was ten that we are in seemingly inflationary spiral; and, all reasonable stand- larger ards they verdicts should be than were at period; are, nevertheless, we opinion in this case that jury awarded have no in foundation fact, grossly and are so excessive and exorbitant as con- vince the members of this Court that the verdict is far excess of what a reasonable could determine as the maximum amount awar type injury. dable for this For appears these given reasons it to us to have been under the passion prejudice. influence of
Previously decided fixing cases are of little value in present day assisting determining standards or in courts excessive awards. Both required the court and are many to deal good guess with unknown factors and a is about the best hoped that can per for. The missible minimum and maximum limits within jury may operate which a injury presently for a are apart far and must continue widespread long to be pain and by money must be measured standards. *9 persons damages jurors all reasonable If award limits, can- we permissible not outside would conclude were substituting judgment our province not invade their theirs, minds that all reasonable but we believe when per- are been exceeded we the limits have would conclude correct the error. mitted to of dis there was an abuse
In
instance we conclude
this
granted
been
new trial should have
cretion and
holding
requested. However,
not
does
a remittitur
our
events,
judgment,
require
in all
that we reverse
rulings
previously announced
we have
under our
Shephard
power
v.
to order a remission. See
Falkenberg
Neff,
Payne,
206 P.
v.
60 Utah
case,
we exercise
It be re- ordered that granted, appellant, and a trial costs versed new with shall, days respondent within 15 from the date of unless filing opinion, file in this court a remittitur in the $5,000; $4,000 accept sum of a net verdict of if such filed, judgment then to remittitur be be modified therewith, modified, accordance and as so affirmed with party. appeal award of costs on either no WADE, WOLFE, McDONOUGH, JJ., concur. PRATT, (concurring dissenting). Chief Justice go opinion I am of the that we should farther than re- grant duce the verdict in this case. should We new accepting privilege trial without a reduced verdict. by appellant It is contended that the trial erred in court giving instruction No. in that the instruction as permitted to award based upon bodily future and future loss of indicating any function when fact there is no evidence *10 possibility, pain that such probability or or even likelihood suffering plaintiff. would occasioned and point Instruction No. as to this reads as follows: measure what both mental that his tion trying mental the reasonable compensation suffering, “* injuries future. plaintiff its [*] the case duration [*] but compensation and that and In is and * for is determining to entitled reasonable physical, [*] is left and its suffering determine *” he will and to to the sound to -which he has endured since the severity. compensation suffering, the amount of such compensation compensate probably he has from a The law furnishes preponderance endured if endure judgment any, the for all for mental in the you or will damages, pain may of the evidence what future; and discretion and no probably take into considera- you physical pain time he sustained way suffering, any physical in are by determining of endure instructed which the if jury any, and in to is court laid rule in relative to This has down the Utah future in the case of instructions on Utah-Apex Mining Co., 900. Picino v. 52 Utah P. 902, as follows: contention, authorities apparently support appellants’ “Some these distinguished others are from the case. We think clearly present while which happen’ is clear distinction between that and that ‘may
there a mere happen.’ may possibility, which ‘will The former probably imply distinction, while the latter that which is to This implies likely happen. recognized many is of the authorities. The rule invoked effect, in degree (reasonably rule) higher certain for a of certainty calls appellants in is true ordinarily required than is civil cases. It quite [that] endeavoring indulge mere in to permitted speculation not be in should litigants. rights of that however, determine It does because follow, not cannot their conclusions with mathematical they precision demonstrate attempting therefore their conclusions are invalid. Even in to de- jurors, already in cases of in the kind, termine sustained this things, That very uncertainty. nature are confronted with more or less light of which is most or that which is all the evi- likely, probable in degree guide. higher is cer- only practical oftentimes If a dence, injustice great is hardship than this it manifest tainty required, is here probability will result cases. Of referred many course, conjectural should not be mere but one based evidence. probability, jury, whose it is to truth from duty The ascertain and declare the conflict- against ing testimony, accept should that which is true probably doing juror is less In the law probable. keeps applicable within accept civil cases. He should that which he to be notwith- true, believes standing it may be more or uncertain.” less analyzes An in 81 annotation A. L. R. collects and degree adopting the cases the different rules as to what certainty should included within instructions to jury. instruction was to the effect case preponderance determine should from a compensation
evidence what reasonable for both mental any, physical pain if “will probably in the endure” future. All references to future *11 pain bodily function, and in or future loss plaintiff the instruction are couched in terms of what the probably Thus, “will endure.” court has the instructed substantially approved the manner in the case in Picino question phrase where the under was almost identical. question appellant however, serious raised as is not type indicating to what proper of instruction is the de- gree proof necessary recovery in order for future suffering pain may granted, and but to rather is as any whether there was evidence introduced in case this justify giving any which would the court in instruction at all pain suffering. for future It appellant contention of the that there is no evidence from which a pain suffering find just- could future to ify giving instruction which would allow jury to damages. even consider these items as an element of Dr. Anderson testified that in about 5 to 10% cases, incisional operations; hernias follow ex- he plaintiff 15, 1947, amined December his examined abdomen completely it was healed and there were complaints; earlier, no plaintiff complained had chiefly which came because of the method of over- lapping the adopted strengthen fascia in order to closing incision, of the expect and that he would go away to adjusted as the abdominal walls change. operation After this last the doctor considered plaintiff completely healed. question
On the injury of recurrence and future Dr. Anderson testified: any hernia, tendency “A. In to recur is considerable. This man developed safeguard any hernia from his incision. We wanted to future development site, of hernia at this and that was the reason we imbricated overlapped fascia, give suturing us least at two or three lines of be, guess, ‘re-enforced,’ you might you
so that it would I call if were sewing your up pants.” What, your opinion, might “Q. cause a recurrence in this case?” poor tissue, poor fascia, improper healing.” “A. I believe the appears No evidence the record of 15, 1947, after December which was the date of the last examination patient by as a Dr. may helpful Anderson. It relationship fix of this date to the other 15, 1947, dates in the case. December was some six months after the had returned to work; more than nine operation; months after the second six months filed; before this action was and more than nine months before the case was tried. The doctor’s state- ment, notes, based on his with reference the December was, 15th examination abdomen, completely healed, “I examined his and there were no com-
plaints.” stipulated It plaintiff wages was $1,300 had lost away while from operation. his work after the second jury verdict of $12,500. the was for Of the total verdict $3,500 deducted, by jury, contributory negli- gence plaintiff, leaving $9,000. a net verdict of If jury given, followed the they instructions as then no question doubt considered the pain suffering of future and bodily future loss of function, yet, as we and. have indi- cated, there is no evidence in the any record to show reason- probability plaintiff able undergo any will pain future suffering. Had there pain been evidence of and suffer- ing at trial, the time history of pain and a suffering of leading up to the trial, time possibly then this instruc-
96 testimony any as to sustained, absent tion could might then since pain and future likelihood suffering pain and fairly future inferable have been 600, 2d 145 P. Loper Morrison, 2d 23 Cal. v. result. would contrary, authority see: Although there is also 1. 445, L. R. A. 150, 40 Griffith, Iowa 72 N. W. v. Shulz however, as to indicated, record silent As 117. months or several time of trial even at the pain suffered negative testimony to before, seems doctor’s and the suffering 1947. December after pain or existence back to had been case was tried At the time this slightest months, hint and there is not work some past the time pain inconvenience or that he has suffered ordinary adjust and the for the abdominal walls it took post-operative to wear off. effects injury one of ob
If the
had been
is,
permanency was
jective nature,
one
obvious,
in the exercise
common
and from which
suffering
probably
say
future
would
could
sense
suffering
occur,
future
then the instruction on
testimony. Pretty
might
any direct
be sustained absent
(Del.)
Tropkis,
recovery pain future the absence it.” evidence to warrant City Boone, 285, also: v. 108 Iowa See Wheeler 821; Frank, App. N. 44 L. R. A. v. W. Sherman 63 Cal. 704; Caldwell, 2d P. 2d Cookman v. 64 Colo. 952; S., Damages, p. 170 P. 25 C. J. 185. Whether § may degree proof perhaps the amount be of a lesser case, supra, change require- under Picino does not jury ment there must be evidence from which the reasonably could probably find that will endure pain such before such an instruction is au- case, thorized. No such evidence exists in this and there- fore the instruction is erroneous.
The verdict in this case is excessive. I am at loss concluding account for it jury without did con- sider the gave matter of future weight considerable words, those elements. In other convincing the size of the verdict is rather belief did they consider these matters when should not so; have done and included in their verdict substantial sum based thereon. The prejudiced defendant has been merely this erroneous instruction. To reduce the ver- is, assuming believe, dict I the amount of the verdict approximately would have been was, same as it had not been instructed as to future and suffer- ing words, considering other without —in future suffering. We have no foundation for such assumption.