Trabing v. California Navigation & Improvement Co.

SMITH, C. This is an action for damages for maltreatment of the plaintiff on one of the defendant’s steamers. The jury returned a verdict for $1,500, and judgment was entered accordingly. The defendant appeals from the judgment, and from an order denying a new trial. The case was before this court on a former appeal, and is reported 121 Cal. 137, 53 Pac. 644, where the facts are more fully stated. The grounds urged for reversal are error of the court in giving or refusing instructions, and excessive damages.

1. On the former trial the court, at the instance of the plaintiff, instructed the jury, if they found certain facts therein enumerated, as follows: “I charge you your verdict will be in favor of plaintiff for such damages as, under all the circumstances of the case disclosed by the evidence, appear to be just, not exceeding the sum of $5,000,” the sum demanded in the complaint. Also it refused the following instruction asked by the defendant: “I charge you that in cases of this kind the plaintiff can recover only the actual damages suffered by him, unless the master authorized the commission of the act complained of, or participated therein, or ratified it after its commission.” And with reference to these instructions this court on appeal said: “As an abstract proposition of law, the instruction given is correct, but it is too general to properly guide a jury to a correct conclusion under the facts of this ease. The instruction would apply to almost any conceivable case, whether the action were against the principal, or against the agent who actually committed the tort, and whether the facts did or did not justify exemplary damages. It left the question of exemplary damages entirely to the jury. The instruction refused should have been given. It would have informed the jury that they could not give exemplary damages. The jury were not re[698]strieted to compensatory damages, either by the instruction asked, or any other instruction of similar import.”

On the new trial the former of the two instructions commented on was again given, but with the following addition: “But in estimating such damages you must not allow or award anything for the sake of example, or by way of punishing defendant, unless it shall further appear to you from the evidence that the defendant authorized the commission of said acts of the captain, or ratified them after the commission.” The court then, of its own motion, gave to the jury the following instruction: “(a) Unless you find from the evidence that the defendant corporation authorized, participated in, or ratified the act or acts of its servant or servants of which complaint is made, the measure of damages, if any you find, is that amount of money which will compensate the plaintiff for all detriment to him proximately caused by such act or acts of the defendant’s servant or servants—his actual damage as distinguished from exemplary or punitive damages—which amount, under the rule just stated, must be determined, in view of all the evidence, by the sound judgment of the jury.” The court refused to give the instruction refused on the first trial, and referred to in the former decision. It also refused to give various instructions that plaintiff could recover “actual damages proven,” or “such damages as the plaintiff can actually prove, and has in fact sustained, as contradistinguished from mere imaginary, exemplary, or what is known as ‘punitive damages’ ”; and also the instruction that the jury could not allow the plaintiff “any damages for injured feelings or mental anguish.” It is claimed by the appellant that the court erred in the instructions given and in the refusal of those denied.