*1 dissent- CROCKETT, in the J., concurs if his land past flow down water WORTHEN, ing it and use J. waiting to another were merely flow it would other used use right land? Such appellant’s past manner a wasteful in such

water any statute or on upon the cases

predicated opinion. concurring in the

cited Riordan case I Nor do see wherein 303 P.2d 279 opin- concurring in the cited Westwood similar any fact situation presents STAMP, ion Clarence M. Plaintiff Respondent, any language Nor does bar. case at conclu- support the in that case used

dicta COMPANY, UNION PACIFIC RAILROAD as- opinion. It concurring sion Appellant. Defendant in issue water conceded sumed and water percolating case was No. 8463. Riordan land naturally subirrigated which Supreme Court of Utah. grounds. higher from percolation Nov. distinc- significant a basic

There Rior- and the case instant between

tion .appel- case Basin In Weber case.

dan District tak- claiming

lant is formerly percolated any water

ing Ap- higher ground.

through his soil threatens

pellant the District claims that spring pressure from

remove the water permitting thereby River,

runoff Weber into back run gravels

water the subsoil wa- said river, which w.as source involved water gravels. in said

ter appel- percolated through

never into and inwas higher ground. It

lant’s soil from any sense percolating

fact not water

that term. P.2d 922.

5. 115

Bryan Leverich, P. M. Bronson, A. U. J. Miner, F.'Coray, Howard Marvin Ber- J. toch, City; appellant. Salt Lake for (cid:127) Black, days' Salt off Wallace, During 12th. was Rawlings, Roberts & the first few he pain quite work the but became respondent. intense City, Lake for progressively during less the balance of period. off work WORTHEN, Justice. Plaintiff recurrent continued to suffer

Appeal judgment from a on a verdict pain particles lodged as which had been plaintiff. injury to Plaintiff sustained eyeballs particles worked out. Such eyes questions appeal and the matter on continued work the case out time till the law, a matter was, whether year was tried about a after the accident. so excessive same as to indicate complained sunny days He on headaches under influence of when he glasses. didn’t wear dark Plain- either a new trial or warranting tiff eye- testified that of his he feared loss remission of of the award conditioned sight worried, he had although on new trial if to remit. refused inquired any jus- of his doctors as to liability No issue is here raised tification his fear. only the amount of action damages. This special- Palmer, eye Dr. Bascom W. an Employers’ arose the Federal Liabil- under by plaintiff, witness testified ist called as *3 ity Act.1 plaintiff that on November he examined 6, 1954, plaintiff, a brake- On November days tes- just injury. his after He defendant, injured sig- was when a man plaintiff’s compara- injuries tified that were in his Blinded torpedo exploded face. nal sight his tively and that was minor 20/20 appeared “per- face to be temporarily, his he He correction. testified that without Plain- quote witness. one to spiring blood” September on plaintiff again examined expert eye an about was examined tiff testified; day that in his before he the injury. During the after hours nine any danger; was not in plaintiff distinguish light could the plaintiff period im- any way had not the accident only. eye After right with his match aof that he vision, and so advised paired his eye right with days could see his two his time of first examination at the plaintiff hospital. the On around sufficiently get to accident, and days the that no dam- after read a chart with third, unable to he was the plaintiff’s ability done to to see. age was day, fourth band- the the eye. On left plaintiff jury facts outlined above went home. On removed age $12,500 damages, about $200 care from the awarded discharged doctor’s He was $2,- work lost. It deducted was for work on the which day and returned to 11th on the seq. 51 et U.S.C.A. § plaintiff’s .contributory account of verdict so excessive as is negligence. show that it must have been motivated by prejudice or ill toward a liti- will jury necessarily have gant, passion or that as anger, such physical and awarded sentment, indignation some kindred suffering. have held pain and We mental emotion has so overcome or distorted is verdict that mere excessiveness jury’s reason that necessarily standard for determin vindictive, vengeful punitive, might be.3 although it ing prejudice,2 unconditionally aside.” set verdict here convinced We are every appears Not fact, suggest that In most excessive. be excessive will warrant remotely any way could be an award award, reduction in the but the considera injury ignore facts. plaintiffs is to related to tion which a court owes have could It inconceivable eyes blind our where here an award under facts made such award can be only by accounted for having motivated been presented, without presence passion prejudice. prejudice. This court passion R. & W. R. G. Denver Wheat v. case of In writer, the verdict Crockett Mr. Co.,4 through speaking appear in this would case to have ar- been said: at rived under the influence of prejudice. that when doubt do not

“We In McCarthy,5 disproportionate to case grossly dict is case in injuries which the admitted could were damages any amount both permanent, severe and make cal- well fairly awarded been culated to warrant suf- this court verdict was so manifest observed page at 109 Utah, at prejudice fused page 126 P.2d: a fair not have had could the defendant issues, trial court should trial on can say, “Where we aas matter of ** unconditionally a new trial. law, that the verdict was so excessive *4 appear given to have been under said what was “Notwithstanding be the influence of rule to therein, regard the true we Utah, 932, 4. McCarthy, Utah 184 250 P.2d 935. v. 2. 123. P.2d 5. 109 Utah 184 P.2d 123. Co., Duffy 118 Utah Pacific Union P.2d 1080. Duffy Pacific were of v. Union R. Co.6 discretion court abused its the trial longer in well much duration and calculated capriciously arbitrarily or or acted may permanent Duffy, in trial, disability. more result we motion for new denying a Stamp, pain; like suffered extreme he was and a new set aside order the verdict off work three and one-half com- months granted.” trial pared days plaintiff to the 13 in this of language is called Attention case was off. pages follows, at court in that case as this Utah, page and at of 434-436 of jury Duffy $12,500 awarded and de- 184 P.2d: $3,500 plaintiff’s ducted the sum for of con- tributory negligence, making the net language from the $9,000. court, dict This in ordering a new decisions, used in these and other respondent days unless within 15 developed pow- that this court view filing the date of file a remitti- jury interfere with a erless to tur $4,000 accept sum of net outrageous. how This view no matter of $5,000, page observed at exploded in the case of Jensen Utah, page at 1084 of 218 P.2d: Co., 44 Denver and G. R. R. 1185, 1192, where, citing after “We must assume jury approval many above cases plaintiff awarded $1,300 sum of cited, said: ‘Still the we cannot wages, loss were his es- go be unbridled and un- special tablished damages, this checked. Hence the Code that a new leaves the sum general aggrieved motion of party trial on damages. get When we domain granted be the court below on might reasonable minds differ as to ground “excessive damages ap- However, what amount is excessive. pearing to have been under beyond must be a limit which a influence prejudice.” go cannot reasonable limit Whenever that is made to appear, the gross determined court, when its properly action is in- the net amount. require voked, should a remission or set jurors Conceding that in different aside the verdict newa states and counties different mone- ” (Emphasis added.) trial.1 different tary standards and ideas as to pain justly suffering; In value our denied day living costs injuries present suffered are com- 118 Utah 218 P.2d *5 as to excessive fact. an award is so purchasing Such high; the paratively to to and shocking be to one’s conscience has decreased power of the dollar' and clearly what it indicate approximately one-half it evi- abundantly is no appears are seem- that there years ago; that we some ten and, spiral; justify verdict. inflationary support dence to in an ingly re- The trial in by standards court its discretion all reasonable abused they were ordering than larger fusing to in dicts should be a new trial or nevertheless, of are, we a period; at that remittitur. dam- that the opinion this case in do, Holding as we no jury have awarded ages is without all for reasonable bounds grossly are so fact, and foundation in duty of injury, detailed we then have the convince toas and exorbitant

excessive ordering trial, new a remitti ordering a the ver- this Court members of no jury’s tur. Since the be of verdict can what a reason- in excess of is far dict help us, judg we must best exercise our maxi- determine could jury able arriving ment in just at fair type of for this awardable mum amount compensate plaintiff injury. appears to it reasons these injury. For Therefore, re judgment influ- under given been to have us versed and a costs granted, prejudice. passion and ence of appellant, respondent unless within lit- “Previously cases are of decided days from filing opinion the date of this present day stand- fixing value tle files with the Clerk this court remitti assisting courts determin- inor ards tur in the sum ac agrees court Both the awards. excessive ing cept $6,000. a net such re If many required deal with jury are filed, mittitur is judgment will be mod good guess factors and unknown therewith, ified accordance as modi hoped that can for. best about fied, party affirmed. Each to meet its own minimum permissible and maxi- costs. jury which a within limits mum injury presently are operate WADE, J., concurs in result. continue to and must apart far McDONOUGH, J., pain C. concurs in long as

widespread so suffer- the reasons stated in the sult for by money be measured stand- ing CROCKETT, ards.” J. CROCKETT, are of

We (concurring spe- jury made cially) award has no . basis in

' appears between tion classes such cases. because two I add concurrence rules general some One class is where the amount award- me there are power grossly the ed is so supervisory excessive as to shock applicable to conscience, clearly over verdicts to indicate courts preserved, passion, prejudice al- verdict resulted from taken note of should be corruption, precise totally no lines can mis- though aware I am *6 function, its respect such matters. conceived entire the be drawn with is injustice, dict tainted with in which event is that courts should such rule The first a new trial granted should be uncondition- forbearance in caution and great exercise ally. The other class of cases is where the the end that the jury verdicts disturbing aspects just plain- baneful describéd are pre- by jury is important right of trial manifest, ly where an but there is award Moreover, court the lower after served. obviously any appraisal above reasonable of re- the award approval to has its suffered, damages the may have re- verdict, modify the fusing to set aside or misconception sulted from evidence, of thereby con- verity is much additional error in judgment, or undue liberality court, a appellate upon ferred it the the extent the court in fairness and inter- fortiori, reluctant be more justice permit the in award to stand judg- and the fere the verdict with the given. amount In this class of cases advan- of their court because ment of the remittitur, or, court order a view first-hand position having in taged plaintiff thereto, agree refuses to when so do and will proceedings a deny new trial. This does not him the manifest work a permit it to stand would right by jury.2 of trial injustice.1 In the first class of cases above referred are some recognized that is It to, wherein the is grossly verdict so exces- are so excessive damages where cases plainly sive as to manifest it must compen- any reasonable proportion to in resulted passion, prejudice, corruption from injury sustained sation for misconception ju- of their function as super- inherent its exercise court in rors, invariably the authorities almost de- juries verdicts over the visory powers clare verdict tainted whole is so inte- long been has . There improper justice interfere. with motivation that will can- parties by done not be between a state distinc- remit- a law of this in grated Gilmer, v. McCarthy, U.S. Kennon S.Ct. v. Geary Cain, L.Ed. 110. 123; 69 Utah P.2d Error, Appeal C.J.S., 418; p. § it to set aside the verdict and that under such titur circumstances, and a in is aside “nowhere the law unconditionally set should be Supreme there warrant for reducing The Colorado granted.3 Bogus- affirming judgment”.5 Kohut v. in stated plainly so Court verdict lavsky.4 plaintiff received The question dealing In of excessive exempla- $10,000 damages actual damages, our has on own court numerous and eviction beating ry damages for recognized occasions the distinction be- said: The court parish house. the church tween the two of cases classes above * ** excessive, to, may be ferred recognizing is that a verdict “If preju- jus- excessive to the extent that ends of result is the remittitur, misconception of tice demand valid- total dice, of a duty ity our nec- duties, plainly verdict for the then jury’s and we entirety, essarily destroyed.6 its in it aside to set cases) (Citing held.” have so The matter was discussed Jensen further greatly Denver R. R. & G. the late Co.7 said, respected Struap, in which is much “ * * * injury suf- think we what court, vacating excess *7 reason- by demand and granting verdict a new trial fered but merely cannot up judg- that we setting or compensation able against jury, influenced ment of that conclude usurps power prostitutes judicial im- other and or prejudice or by passion ** by jury. Still the constitutional rea- For *. motive proper go is reversed.” judgment given, sons unbridled and unchecked.” Supreme Court likewise Montana The And, respect speaking with excess dam- the conclusion is in where stated has stated, ages, further of escapable prejudice passion and result “Whether a new trial should or duty of the court granted it becomes not be jury, ground, should on this 1504; Damages, Co., Sutherland, 4th Ed. v. Denver Ward & R. G. 6. W. R. 96 3. 564, Error, 837; Appeal Wycoff, C.J.S., 85 P.2d 1651 and Baker § Utah v. 199, 77; Morgan Og P.2d 95 Utah cited. v. therein authorities Ry. Depot Co., Union & den 77 Utah 541; 325, 876, McCarthy, 294 P. 877. P. v. 78 Colo. 4. 431, 184 P.2d Utah 123. County Farmers’ Chouteau Fulton 7. Co., 37 P.2d Mont. sufficient result rest within to show that it is necessity, largely passion prejudice.” trial court. or sound discretion court, particular, in such Still plainly indicating * * beyond reach. supreme or not proper it was for the court remis- to order refusing a motion granting A ruling sion passion prej- of the excess where certainly reviewable new trial is for a udice necessarily present, were not but that power to correct *. Our been, if they had an unconditional new trial or undo plain of discretion abuse have granted. been Another case arbitrary exercise capricious mere definitely principle is articulating this power cannot be doubted.” Ogden Co.,9 Ry. Depot McAfee Union & in which the court stated: he demonstrates And outrageous” flagrantly he so “enormous * * * Verdicts will not be inter- of law and a matter rectification is its fered with this court on account of an issue of fact. reviewing of not being excessive unless the facts are pronounce- reasoning and of his soundness such that the excess can be determined generally subject have been on ments law, as a matter of or that the verdict upwards jurisdiction for in this recognized is so excessive as to be shocking to provided basis years of 40 one’s conscience clearly and to in- subsequent many procedure for our passion, dicate prejudice corruption subject. court on the of this decisions jury. When a ver- dict is so clearly excessive that it in- Eleganti v. Standard Coal In the case dicates a new Co.,8 court accordance with the trial granted trial should be unconditional- case, re- ordered verdict Jensen ly.” plaintiff take $2,000,or that the duced to Frick appeal, On new trial. Any other rule than requiring cited : entire verdict to be set aside where it wholly disproportionate any possible by counsel “It is now contended damage as to indicate that could in not erred the court defendant that except have resulted prej- verdict and entire setting aside the udice, illogical unjust would seem new trial.” granting They litigants. impartial *8 are entitled to an saying: rejected which contention by jurors fair-minded, trial who are dis- fact that the verdict “The mere passionate, by spite, and not motivated prejudice alone or ill If a may be excessive is not will. verdict which 218 P. 9. 62 Utah 104. 8. 50 Utah by unconditionally motivated that it should be set aside. clearly have been seems Therefore, vacated, justice may be served order- such influences is ing the alternative remittitur of the remittitur viewing court orders a trial, granting would or the of a new only, sanction as indicated damages then issues in the Worthen. to the determination Justice in- obviously jurors were liability by who This improper fluenced motivations. HENRIOD, (concurring in re- Justice purpose of plainly inconsistent with sult) . impartial jury. by fair trial I result, concur in the can sub- since I this consider recently had We occasion scribe to the adjudged, remission not to made the statement: matter and the conclusion reached it- that the verdict obviously self estab- excessive rule regard true [We] passion lish prejudice in its rendition. excessive if the is so to be that I think there have been excessiveness moti- must have been that it as to show but that the verdict necessarily was ill will toward by prejudice or vated steeped passion prejudice. an- passion such as litigant, or that resentment, indignation or some ger, I subscribe to the conclusions of so overcome or emotion has kindred mentioned, Wheat case to those also jury’s reason that distorted portions of Mr. Crockett’s concur- vindictive, puni- vengeful or verdict is support rence which : following doctrine unconditionally set tive, it should That if three or justices more of the aside.” this court 1) decide: That excessive- main statements ness of the appears Some itself to have here indicate that the verdict aggravated been so seem would as to convince us and re- under that definition come passion conceived and would born of However, my im- it is prejudice both, new trial. quire fair thing do majority be- grant of the court is to pression unconditionally; trial actually case falls within the if a 2) showing lieve has been made in a cases referred to in this timely appropriate class of manner, second which con- damages while the are ex- and that opinion, us that vinces prejudice and/or the extent verdict should excessive, cessive sired the verdict which we deem to stand in the amount only fair thing not be to do is to a new no indication that the verdict unconditionally; given, or 3) if we are con- prejudice tainted with is so vinced that the verdict merely was not ex- Co., Utah, Wheat v. Denver & R. W. R. G. 250 P.2d *9 quite appear as to but so excessive cessive shown, injury any related to

unfair as it however, appeared not preju- by passion or engendered

have been mistake, in cal- error perhaps

dice, but uncorrected, other

culation, error clerical resulted departure that

honest some or for

unintended, quite unreasonable logical unexplained having reason no

other a remis- damage, to the relation

or sensible un- have been we consider what

sion of con- adjudged,

fairly excessive new trial of a granting

ditioned unacceptable bene- remission verdict.

ficiary of P.2d 286 Respondent, CAFFALL, Plaintiff

Ruth Appellant. CAFFALL, Defendant

Vern

No. 8447.

Supreme of Utah. Court 7, 1956.

Nov.