SWEITZER V. SANCHEZ, 1969-NMCA-055, 80
N.M. 408, 456 P.2d 882 (Ct. App. 1969)
GORDON SWEITZER, Plaintiff-Appellee,
vs.
WILLIE SANCHEZ, ELOY A. MARTINEZ and WESTERN SURETY
COMPANY, a corporation, Defendants-Appellants
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-055, 80 N.M. 408, 456 P.2d 882
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY, ZINN, Judge
CHARLES D. OLMSTED, STEPHENSON, CAMPBELL
& OLMSTED, Santa Fe, New Mexico, Attorneys for Appellee.
J. E. GALLEGOS, JONES, GALLEGOS, SNEAD
& WERTHEIM, Santa Fe, New Mexico, Attorneys for Appellants.
WOOD, Judge, wrote the opinion.
Waldo Spiess, C.J., William R. Hendley, J.
{1} The trial court
determined that Defendant Sanchez maliciously prosecuted the plaintiff. Sanchez
does not attack this ruling. His appeal is concerned with the compensatory and
exemplary damages awarded to the plaintiff. Sanchez contends these damages are
excessive and should be set aside.
{2} The trial court awarded
special damages of $235.74. This is the amount of the attorney fees plaintiff
incurred in defending the criminal proceeding instigated against him by
Sanchez. There is no claim that this award was improper.
{3} The trial court awarded
an additional $3,000.00 as compensatory damages. Sanchez asserts this award is
excessive. Excessiveness is determined by:
"* * * (1) whether the evidence, viewed in the light
most favorable to plaintiff, substantially supports the award and (2) whether
there is an indication of passion, prejudice, partiality, sympathy, undue
influence or a mistaken measure of damages on the part of the fact
finder."
{4} Sanchez claims the trial
court exhibited partiality and sympathy "* * * against the defendant, Sanchez.
* * *" This claim is based on the trial court's denial of his request to
invoke the rule for the exclusion of witnesses. "* * * [I]t is within the
discretion of the court as to whether or not it will exclude witnesses from the
courtroom during the trial. * * *" State v. Curry,
27 N.M. 205,
199 P. 367
(1921); see State v. Romero,
69 N.M. 187,
365 P.2d 58 (1961). The trial court
refused to exclude witnesses because "* * * of the nature of the case, * *
* ". We cannot determine from the record that this ruling was an abuse of
discretion. Nor can we say, as a matter of law, that the ruling indicates the
trial court was partial to or in sympathy with the plaintiff.
{5} Sanchez asserts the award
resulted either from prejudice or application of the wrong measure of damages.
He supports this view by comparing the award with awards made in other cases.
Such a comparison is improper. Maisel v. Wholesome Dairy, Inc., supra. "*
* * What this court may have done in other cases, or what courts of other jurisdictions
may have decided in cases involving similar injuries, is of no consequence. * *
*" Terrel v. Lowdermilk,
74 N.M. 135,
391 P.2d 419 (1964). The reason that
such comparisons are improper is that the question of prejudice and the
question of the measure of damages must be determined from the evidence in this
case.
{6} There is nothing in the
record from which we can say, as a matter of law, that the trial court was
prejudiced against the defendant Sanchez. As to the measure of damages, the
trial court found:
"Plaintiff was publicly arrested, photographed,
fingerprinted, incarcerated with convicted prisoners, and has suffered acute
and public embarrassment and humiliation and emotional distress."
{7} We are not concerned here
with specific damages resulting from the malicious prosecution. See Bokum v.
Elkins,
67 N.M. 324,
355 P.2d 137 (1960). Our concern is with general damages.
Plaintiff may recover general damages for injury to reputation and for
emotional distress. Gandy v. Palmer, 251 Miss. 398, 169 So.2d 819 (1964); Board
of Ed. of Miami Trace Local Sch. Dist. v. Marting, 7 Ohio Misc. 64,
{*410} 217 N.E.2d 712 (1966); Browning v. Ray,
440 P.2d 721 (Okla. 1968). See also Woods v. Standard Personal Loan Plan, Inc.,
420 S.W.2d 380 (Mo. App. 1967).
{8} Sanchez instigated
criminal proceedings against plaintiff with the result that plaintiff was
arrested. The bare fact of arrest, in itself, is damage to reputation. See
Nelson v. Hill,
30 N.M. 288,
232 P. 526 (1924); Woods v. Standard Personal Loan
Plan, Inc., supra. The finding as to the arrest was not a mistake as to the
basis for measuring damages.
{9} The trial court found
that plaintiff suffered embarrassment, humiliation and emotional distress.
Embarrassment and humiliation are emotional distress. See Rest. Torts 2d § 46j
(1965); compare Board of Ed. of Miami Trace Local Sch. Dist. v. Marting, supra,
with Browning v. Ray, supra. Although there is some duplication in the trial
court's finding, nevertheless, the finding as to emotional distress was not a mistake
as to the basis for measuring damages.
{10} The findings as to
arrest (damage to reputation) and emotional distress support an award of
general compensatory damages. Browning v. Ray, supra, states the
amount
of such damages is largely determined "* * * by the gravity of the offense
charged and the publicity given the prosecution of plaintiff. * * *"
Compare Brown v. Village of Deming,
56 N.M. 302,
243 P.2d 609 (1952); Nelson v.
Hill, supra. There is no evidence as to the publicity given the prosecution of
plaintiff. The offense charged was assault. This offense is a petty
misdemeanor. Section 40A-3-1, N.M.S.A. 1953 (Repl. Vol. 6). Thus, there is a
plausibility to Sanchez' contention - that there is no substantial evidence to
support the
amount of the compensatory damages awarded.
{11} The trial court did not
base its award on the gravity of the offense or on the publicity given the
prosecution of plaintiff. The award is based on the arrest, jailing and acute
emotional distress. The arrest and jailing is the only evidence indicating a
damage to reputation. What, however, is the evidence from which it was found
that plaintiff's emotional distress was acute?
{12} While chairing a
committee meeting at the place of his employment, plaintiff was called out of
the meeting and arrested. He was allowed to re-enter the meeting to explain his
reason for leaving - that he had been arrested and was going to jail. He was
taken to jail where he was booked. This consisted of taking away items of
personal property, including his necktie. He was photographed and
fingerprinted. After booking was completed, he was allowed to telephone his
attorney. He was then jailed until bond was posted on his behalf. This was some
two hours later.
{13} When arrested, the
deputy had shown plaintiff a criminal complaint signed by Sanchez. Other than
this, he did not know what had occasioned his arrest. Plaintiff did, however,
relate the arrest to a prior threat of Sanchez to the effect "* * * that
he was going to get me, * * * ". Plaintiff had never been arrested before;
throughout the affair he was frightened and distressed.
{14} When he returned to work
the next day, plaintiff "* * * didn't know how to act. I mean, it was a
completely disconcerting experience, * * * a very trying experience."
{15} According to plaintiff,
the distress has continued. In the job that he then held (head of the
Right-of-Way Section at the Highway Department) "* * * it is absolutely
necessary that I not be involved in anything of this * * * nature, * * *".
"* * * I don't know, I still don't know how you go home and tell your kids
that you have been in jail, that you have been arrested. I still haven't found
a way to do that, nor do I know how you tell friends, particularly I don't know
how you tell employers or prospective employers. * * *"
{16} "* * * It is common
knowledge that applicants for jobs are frequently asked if they have ever been
arrested and, if so,
{*411} for what. *
* *" Gandy v. Palmer, supra.
{17} The evidence of acute
emotional distress came from plaintiff. It was the trial court's function to
judge plaintiff's credibility and determine the weight to be given his
testimony. Rein v. Dvoracek,
79 N.M. 410,
444 P.2d 595 (Ct. App. 1968). The
trial court performed that function; it found that plaintiff suffered acute
emotional distress. The foregoing evidence is substantial and supports that
finding.
{18} Plaintiff suffered
damage from his arrest, jailing and his acute emotional distress. The precise
amount of this damage is "* * * almost impossible of proof. * * *"
Browning v. Ray, supra. This type of damage is similar to damage for pain and
suffering, for which no standard is fixed by law. See Lujan v. Reed,
78 N.M.
556,
434 P.2d 378 (1967). Damages awarded for pain and suffering will not be
held excessive except in extreme cases. See Lujan v. Reed, supra. The same rule
applies to an award of damages in an action for malicious prosecution. Annot.
35 A.L.R.2d 308, 310 (1954) states:
"In actions for malicious prosecutions, as in other tort
actions, the courts appear to be in substantial agreement in holding that the
amount of damages to be allowed is primarily a question for the jury, with
which the courts, and especially the appellate courts, should interfere only
reluctantly and in extreme cases. * * *"
{19} Because there is no
standard by which damage from emotional distress may be measured and because
plaintiff's emotional distress was acute, we cannot say the award of $3,000.00
as general compensatory damages is an extreme case justifying a ruling that the
award is excessive as a matter of law. Compare Lujan v. Reed, supra.
{20} The trial court awarded
exemplary damages of $3,000.00. Sanchez contends that no exemplary damages
should have been awarded and alternatively, that the award is excessive.
"* * * [P]unitive damages are inflicted for the limited
purpose of punishment and only when compensatory damages seem inadequate to satisfy
the wrong committed. * * *"
"* * * [W]hen damages are sought and recovered from the
tortfeasor, the amount of the recovery is for the full loss or detriment
suffered by the injured party and makes him financially whole. * * *"
{22} The contention that no
exemplary damages should have been awarded is based on reading the
Castro
quotation into the
Montoya quotation. Sanchez asserts that compensatory
damages make the plaintiff "financially whole" therefore the
compensatory damages are adequate to satisfy the wrong committed. On this
basis, Sanchez argues that it was error to award exemplary damages. This
contention is incorrect.
{23} The measure of
compensatory damages is a sum which will compensate the injured person for the
loss sustained. See Industrial Supply Co. v. Goen,
58 N.M. 738,
276 P.2d 509
(1954). "* * * [E]xemplary damages are assessed to punish the defendant
and not to compensate for a loss by plaintiff, and to that extent they are
separate and distinct from compensatory damages, * * * ". Sanchez v. Dale
Bellamah Homes of New Mexico, Inc.,
76 N.M. 526,
417 P.2d 25 (1966). Exemplary
damages, as punishment, are imposed because of the enormity of the offense.
Colbert v. Journal Publishing Co.,
19 N.M. 156,
142 P. 146 (1914). Thus,
compensatory damages may be inadequate to satisfy the wrong because of the
nature of the offense committed by defendant. Instead of stating a new rule
concerning exemplary damages, Montoya v. Moore, supra, is a reiteration of
existing rules -
{*412} that there may
be recovery of both compensatory and exemplary damages. In
Montoya there
was an award of both types of damage.
{24} Since Sanchez'
prosecution of plaintiff was malicious, there is a basis for an award of
exemplary damages. See Bank of New Mexico v. Rice,
78 N.M. 170,
429 P.2d 368
(1967); Loucks v. Albuquerque National Bank,
76 N.M. 735,
418 P.2d 191 (1966).
Is the $3,000.00 amount excessive?
"* * * [T]hat the amount of punitive damages must be
left to the jury's sound discretion based on the circumstances of each
individual case, but must not be so unrelated to the injury and actual damages
proven as to plainly manifest passion and prejudice rather than reason and
justice. * * *"
See Montoya v. Moore, supra.
{26} Here, the amount of the
exemplary damages is left to the "sound discretion" of the trial
court as the fact finder. This amount is to be based on the circumstances of
the case, that is, the enormity of the offense, Colbert v. Journal Publishing
Co., supra, or "* * * the nature of the wrong committed and such
aggravating circumstances as may be shown. * * *" Woods v. Standard
Personal Loan Plan, Inc., supra.
{27} What were the
circumstances here? Sanchez instigated criminal proceedings against plaintiff
without probable cause. The proceedings were not instigated in good faith. The
proceedings were inspired and motivated by the malice of Sanchez toward
plaintiff for the "* * * purposes of punishing plaintiff and to exact
personal vengeance." These circumstances are taken from the unattacked
findings of the trial court.
{28} We cannot say, as a
matter of law, that the trial court abused its discretion in awarding $3,000.00
exemplary damages in the above circumstances. Nor are the exemplary damages so
unrelated to plaintiff's arrest, jailing and acute emotional distress as to
plainly manifest passion and prejudice.
{29} The judgment is
affirmed.
Waldo Spiess, C.J., William R. Hendley, J.