Lead Opinion
OPINION OF
This is аn appeal by defendant-appellant Johnny Welch from a judgment for plaintiff-appellee, Benjamin F. Johnson, in an action for damages on account of injuries allegedly caused by an assault and battery by Alfred Imperial also known as Freddie Imperial. Alfred Imperial, who was a co-defendant, died before the trial, and as to another defendant Lee E. Sartain, who was in prison, the case was dismissed by the plaintiff.
In September 1952, plaintiff, while eating breakfast at the Mayflower restaurant, was approached by Alfred Imperial who said “Me boss speak you make fight with him.” Plaintiff looked up and asked “What are you
At the close of the plaintiff’s case, defendant Johnny Welch’s motion for a directеd verdict was denied. The jury returned a verdict for special damages in the sum of $250.00, general damages in the sum of $5,000.00, and punitive damages in the sum of $1,000.00. Alter the verdict, defendant’s motion for a new trial was denied.
In this appeal, the defendant first contends that the lower court erred in denying defendant’s motion for a directed verdict on the ground that the evidence was insufficient to warrant the submission of the case to the jury. A careful review of the record clearly indicates that there was substantial evidence to justify and support the verdict returned by the jury. The rule is set out in Ross v. Ins. Co.,
“* * * [I] t is equally well settled in this jurisdiction that it is a question of law, within the province of this court to decide, whether there was before the jury in any given case evidence which was legally sufficient to support the verdict or to justify any particular finding of fact, that a mere scintilla of evidence is not sufficient to support a verdict and that there must be some substantial evidence in order to justify this court in sustaining a verdict or finding. * * *”
Plaintiff testified that as he was having breakfast at the Mayflower restaurant “* * * three men got up and approached the cashier’s desk, talking in a very loud tone of voice. I heard one say to another, ‘You see that black son-of-a-bitch? He think he’s smart. Go over and lay a Sunday punch on him.’ Hearing these words, I looked up and I recognized Mr. Welch nodding towards me. * * *” In response to questioning by his counsel, plaintiff further testified as follows:
*114 “Q You testified a moment ago that you heard somebody say, ‘You see that black so and so. Lay a Sunday punch on him.’ Who said that?
“A Mr. Johnny Welch.
“Q You are sure about that?
“A Yes, sir.”
Further, under cross-examination, plaintiff stated:
“At the time the words was being spoken my attention was naturally аttracted to the parties, and I particularly noticed Mr. Welch using the words and nodding towards me.”
Thus, there was substantial evidence for the jury to find that defendant deliberately instigated and ordered Alfred Imperial to lay a “Sunday punch” on plaintiff. Cf., You Goo Ho v. Dr. Edmund T. K. Ing, 43 Haw 289; Darcy v. Harmon,
Defendant next contends that the trial court erred in denying his motion for a new trial based on the ground of excessiveness of the verdict. Review of a verdict on a motion for a new trial on the ground of excessiveness rests with the trial court. Appellate review of a verdict-on such ground is limited to a consideration as to whether the trial court committed error of law or abused its discretion in granting or denying a new trial. Pooler v. Stewarts’ Pharmacies, Ltd.,
“* * * [A] finding of an amount of damages is so much within the exclusive province of the jury that it will not be disturbed on appellate review unless palрably not supported by the evidence, or so excessive and outrageous when considered with the circumstances of the case as to demonstrate that the jury in assessing damages acted against rules of law or suffered their passions or prejudices to mislead them.” Vasconcellos v. Juarez,
It is not the function of the trial court, nor of this court, to substitute its judgment for that of the jury. In Tsuruoka v. Lukens, supra at 268-69, where the defendant contended that the jury award was excessive, this court in affirming the verdict, said:
“* * * the question is not whether this court would have awarded as much if the case had been tried before it. It is simply whether, upon the evidence adduced, reasonable men could have come to the conclusion * *
This court also said in Lima v. Tomasa,
“Where there is an assertion that the damages awarded are excessive, this court Avill confine its inquiry to whether, upon the evidence adduced, reasonable men could have come to the same conclusion as the jury, or the trial court in a jury-waived case. * * *”
We do not find here any prejudiciаl error of law. See 6 Moore, Federal Practice, § 59.08(6) (2d ed. 1953). Compare Izumi v. Park, supra, with Pooler v. Stewarts’ Pharmacies, Ltd., supra. Appellant contends that the amount awarded is not reasonably proportionate to the injury sustained, asserting that it amounted to no more than a “black eye.” We find in the record no abuse of discretion by the trial court in failing to order a new trial on the grounds of excessiveness of the verdict. See Ahmi v. Cornwell,
Thus, construing the record in this case most favorably for the amount of damages awarded, Vasconcellos v. Juarez, supra at 366, sufficient weight must be given to plaintiff’s own testimony with respect to the permanency of the injuries he sustained. There being evidence of pain and suffering endured by him up to date of the trial, recovery may be had therefor. Reinhardt v. County of Maui,
By agreement, the court instructed the jury, under the head оf general damages, that it was left to their sound discretion “what amount will fairly compensate an injured person for his injuries, pain, suffering and mental anguish.” As to punitive or exemplary damages, the jury was instructed that such damages were designed “to punish one for an unlawful act” and “to set an
In the present case we must review the verdict under the instructions agreed to, and accordingly consider the punitive damages of $1,000.00 as having been awarded by way of punishment and as a deterrent. We must consider the general damages of $5,000.00 to include such mental anguish and suffering “found to be the necessary and inevitable consequence of the physical injuries and physical suffering.” Choy v. Otaguro,
This is not a case where damages were measurable to some degree of certainty or were capable of ascertainment by calculation, or one where fixed standards or scales were available. Cf., Izumi v. Park,
“* * * Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence and perspicacity in appraising the jury’s conduct.’ ”
“[T]he appellate court should have due regard for the trial court’s ffeel for the case.’ ” Rainbow Is. Prod. v. Leong Agency,
One further matter must be discussed. In orally denying the motion for new trial after the verdict had been rendered, the trial court stated in part as follows:
“As far as the $5,000 goes, from the evidence it appears that this was an absolutely deliberate attack on Mr. Johnson, and Mr. Johnson did show the red mark that was still on the white portion of his еye, if I remember correctly. At least there was a red mark still on his eye at the time of the trial, which he said came from being punched, and he testified also, I think, to a scar above the eye.
“And then as far as the $1,000 damages go, the evidence shows that this was a deliberate attack and that Mr. Welch, the defendant, told somebody else to punch Mr. Johnson.
“It appears to the Court that the verdict is reasonably based on the evidence and not excessive, and that the motion for a new trial should be denied on all grounds. So it is denied on all grounds.” (Emphasis added.)
The above statement is seemingly open to the interpretation that the trial court considered the “deliberate” character of the attack to bear upon the compensatory aspects of the damages recovered by the plaintiff. Counsel for appellee argued that this was an inadvertent remark made by the trial judge when he orally denied the motion for a new trial. We find it unnecessary to reach the question whether the trial court erred in this regard for the amount of $5,000.00 for compensatory damages is adequately supported by the record and conforms to the instructions given by agreement.
Affirmed.
As to the alleged excessiveness of the verdict, the matter primarily is one for the trial judge, subject to review by this court of the question whether he abused his discretion. I am in agreement with the opinion on that point. However, I find it necessary to reach the question whether the trial judge erred in cоnsidering the deliberate nature of the attack in reviewing the $5,000 aAvard of general damages.
It is Avell settled that, in an action for assault and battery, compensatory damages may be allowed for the mental anguish “caused by the insult of the blows received.” 1 Sutherland, Damages, § 95 at 339 (4th ed.); id., vol. 4, § 1243 at 4668-69; 4 Am. Jur., Assault and Battery, § 184; C.J.S., Assault and Battery, § 54b (2); Restatement of the Law of Torts, § 905(b) comment c; Webb v. Gilman,
As the cited cases show, damages for the mental anguish caused by the circumstances of the assault and battery may be allowed in addition to punitive damages. Likewise, such damages may be allowed though punitive damages are not allowable against the particular defendant, as in the case of a principal who has not authorized or ratified the malicious act. See Maisenbacker v. The Society Concordia,
Choy v. Otaguro,
It was alleged and proved in this case that the attack Avas violent, unprovoked and without justification of any kind. After the assault plaintiff, a cab driver, sought out another cab driver to take him back to his place of business, he being unable to drive, and at that time was in such a state that he had difficulty in explaining to the other cab driver Avhat he wanted.
In some cases other evidence may negative thе aggravation of the injury. See Mecham v. Foley,
Notes
Dеfendant did not offer any medical testimony as to the present condition of plaintiff’s right eye, although defendant had the right to have plaintiff submit to a physical examination under H.R.C.P., Rule 35(a), and R.L.H. 1955, § 225-2.
In some jurisdictions exemplary damages are not deemed punitive but instead are based on the aggravation of the injuries by the circumstances. 15 Am. ,Tur., Damages, § 266 at 702; Annot.,
Dissenting Opinion
In my opinion, a realistic appraisal of the evidence in the record discloses that the injuries sustained by plaintiff resulted in, at most, a “black eye,” albeit a severe one. I am of the conviction that the award of the jury of $5,000 as general damages for such injury was clearly excessive under the rule applicable in this jurisdiction as set forth in Vasconcellos v. Juarez,
The verdict of the jury in this case in making this unsupportable award for general damages is understand
The intimation in the main opinion that it is incumbent on a defendant in a personal injury case to offer medical testimony concerning the extent of plaintiff’s injuries to counter the self-serving statements of plaintiff, who himself offered no medical testimony, is particularly disturbing. Such a requirement, simply because we have a statute giving thе defendant a right to have a plaintiff submit to a medical examination in personal injury cases, would seriously affect the burden of proof in such cases. It is basic, in my understanding, that a plaintiff has the burden to sustain by adequate evidence the extent of damages suffered by him. To require the defendant to meet the self-serving statements of the plaintiff concerning the damages sustained by him by competеnt medical testimony would in effect require the defendant, to some extent, to establish the case against himself.
In Cherry v. Hawkins,
“* * * An eye injury is one which particularly indicates the need for expert medical testimony, where a plaintiff is seeking substantial damages, as here. The physiology and prognosis of eye injuries are complex medical questions. Plaintiff’s evidence leaves the jury and the court completely in the dark as to the precise injuries to his eyes and the future effects, if any, of those injuries.
“The burden was on plaintiff to show the extent of his injuries and loss of earnings. His evidence fails to meet that burden, gives no indication of the medical nature of the injuries to his eyes, and no possible measure of the loss of earnings. For these and the other stated reasons, the verdict is grossly excessive.”
The court in Duty v. Gunter,
“* * * we are very firmly of the view that the evidence in the instant case does not support the amount of judgmеnt, i.e., the injuries do not appear to be so substantial or disabling as to justify the amount awarded. Gunter was not in the hospital more than thirty or forty minutes, and was released, leaving by taxi. His medical expense was nominal; his visits to the doctor after the collision appear to be infrequent, and neither the broken rib, nor the ‘sleeplessness’ complained of, was corroborated. Appellant strongly argues the failure of Gunter to offer supporting medical evidence. This, of course, is noticeable, but*125 it is likewise true that appellant offered no medical evidence to minimize the asserted injuries.
“Determining the proper amount of award in a personal injury suit is indeed difficult, but when we give the evidence its greatest probative value, as we must, we are of the opinion that the рroof introduced will not justify a judgment for personal injury damages in excess of $2,300.”
Further, the absence of medical testimony casts grave doubts that the assault here perpetrated on the plaintiff caused the conditions complained of at the trial. In Kimmel v. Solow,
“There was no testimony in open court by the doctor who treated respondent or by the doctors who examined her; in lieu thereof thе doctors’ reports were received in evidence pursuant to the consent of the parties. There was no direct issue of the doctors’ credibility to be determined by the trier of the facts. In our opinion, the evidence did not require or justify findings that the accident was the competent producing cause of all the conditions testified to by respondent and that such conditions were permanent.”
Cf., Raphael v. Chicago & West Towns Rys.,
I would remand the case with a remittitur offering the plaintiff the opportunity to accept a substantially lesser sum on general damages in lieu of a new trial.