Opinion
Rehearing Denied Aug. 13, 1974.
Page 983
Frank C. McKibben, Denver, for plaintiff-appellee and cross-appellant.
Richeson & McCain, Robert C. McCain, Denver, for defendant-appellant and cross-appellee.
RULAND, Judge.
This appeal by both parties concerns a judgment entered upon a verdict for plaintiff in the third trial of a claim for malicious prosecution. We affirm.
Plaintiff filed the present case in 1965, seeking actual damages of $25,000 and exemplary damages of $15,000 for alleged malicious prosecution by defendant in signing a criminal complaint before a Justice of the Peace which resulted in issuance of a warrant for plaintiff's arrest on the charge of larceny by bailee. Defendant initiated the criminal proceeding as the result of a sales transaction in which plaintiff agreed to sell to defendant a damaged mobile home at a reduced price, whereupon defendant paid the full purchase price and the trailer was not thereafter delivered to him. The evidence was in conflict as to why the trailer was not delivered. However, plaintiff's evidence showed that defendant was advised by a deputy district attorney prior to signing the criminal complaint that no violation of Colorado criminal statutes was involved in the transaction and that the dispute should be resolved by a civil action.
The criminal charges were dismissed at a hearing before the Justice of the Peace, and plaintiff subsequently filed the present suit. Defendant answered denying liability and counterclaimed for return of the purchase price and other damages.
Plaintiff's claim for malicious prosecution and the claims asserted by defendant's counterclaim were tried to a jury. At the conclusion of the evidence at the first trial, the court directed a verdict for plaintiff on the issue of liability; plaintiff confessed judgment for return of the purchase price; and the court dismissed the remaining counterclaims. The jury then returned a verdict for plaintiff in the amount of $3,300 actual damages and $6,000 punitive damages. Following entry of judgment on this verdict, defendant filed a motion for new trial, asserting, Inter alia, that the damages awarded by the jury were excessive. The court thereafter granted a new trial on all issues.
In the second trial, the defendant did not assert the counterclaims apparently because of plaintiff's confession of judgment for return of the purchase price. The jury returned a verdict for plaintiff in the amount of $10,735 actual damages and exemplary damages of $5,000. Following entry of judgment on this verdict, defendant again filed a motion for new trial, asserting, Inter alia, that the damages awarded were excessive and that the award was predicated upon conjecture and speculation. The trial court concluded that the judgment should be remitted to $2,000 actual damages and $500 exemplary damages; the court ordered that if plaintiff refused to accept the remittitur, defendant's motion for new trial would be granted. Plaintiff refused to accept the remittitur, and the court thereupon ordered a new trial on only the issue of plaintiff's damages. A new trial followed, and the jury awarded plaintiff actual damages of $3,500 and exemplary damages of $2,700.
Defendant initiated the present appeal from the judgment entered following the third trial. Plaintiff cross-appeals pursuant to C.R.C.P. 59(g), seeking a review of the trial court's orders granting a new trial following entry of judgment after the first and second trials. I
Plaintiff's Cross-Appeal
In his appeal, plaintiff contends: (1) The court erred in granting a new trial following entry of the original jury verdict because the damages awarded were not excessive; and (2) the court erred in requiring a remittitur following entry of the second jury verdict, again because the damages were not excessive.
Plaintiff's first contention is without merit. The exemplary damage of $6,000 awarded in the original verdict exceeded the actual damages award of $3,300 by a substantial margin. The transcript of plaintiff's testimony in the first trial has not been included as part of the record on appeal, and thus we are unable to review all of the evidence introduced on the damage issue. Absent the full record on appeal, See Laessig v. May D & F and American Credit Co., 157 Colo. 260, 402 P.2d 183, we must assume that the trial court correctly ruled that the exemplary damages awarded by the jury were unreasonable. See Leo Payne Pontiac, Inc. v. Ratliff, 178 Colo. 361, 497 P.2d 997.
We also disagree with plaintiff's second contention. Plaintiff's evidence in the second trial showed out-of-pocket expenses of about $750 consisting of attorney's fees and bond costs incurred in conjunction with the criminal charges, auto and airplane travel expenses, and two days loss of wages. The balance of his evidence showed two job opportunities which he was unable to obtain because of the arrest on his record (without testimony as to any financial loss therefrom), pain and suffering from a back injury which was aggravated by the emotional impact of arrest, interrogation by law enforcement officers, and confinement for approximately one day in jail (without specification as to the length of time the pain and suffering continued), and humiliation and embarrassment resulting from the criminal charges. Under these circumstances, we are unable to conclude as a matter of law that an award of $10,735 actual damages is not so disproportionate to the injuries sustained as to warrant the granting of a new trial. See Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815.
II
Defendant's Appeal
Defendant contends that the trial court erred in limiting its order for the third trial to the issue of damages only. We disagree. Insofar as material here, defendant's motion for new trial specified as grounds therefore that the verdict was excessive and based on conjecture. No contention was made that the verdict was based on passion or prejudice. The court's order stated that if the remittitur were not accepted, defendant's motion would be granted. We must therefore assume that the court ordered a new trial based on the grounds asserted by defendant, namely that the verdict was excessive and based on conjecture. Under these circumstances, it was proper to award a new trial on the issue of damages only. Hartford Fire Insurance Co. v. Kolar, 30 Colo.App. 1, 488 P.2d 1114.
Defendant next contends that the trial court erred in excluding from evidence two letters purportedly written by the defendant to the Justice of the Peace as well as defendant's testimony as to certain conversations between the defendant and the Justice of the Peace. Again, we disagree.
According to plaintiff, this evidence was offered to mitigate exemplary damages. A review of the letters reveals various inflammatory statements by defendant about plaintiff's integrity, and we are unable to find any evidence of probative value in the letters which would relate to the issue of exemplary damages. In addition, the letters were allegedly handwritten copies of the originals, and defendant neither proved nor offered to show why the original copies were unavailable. Hence, the copies were not admissible. See C.R.C.P. 43(g). Defendant contends that the jury's verdict following the third trial of $3,500 actual damages and $2,700 exemplary damages was excessive, not supported by the evidence, and must have been based upon passion and prejudice. We disagree.
The evidence presented by plaintiff during the third trial was essentially the same as the evidence presented during the second trial and outlined earlier in this opinion. Because it is difficult to translate pain and suffering, humiliation, and embarrassment in dollars, we agree with the trial court's conclusion that the verdict in the third trial of $6,200 is not grossly excessive, and a review of the record confirms that there is sufficient evidence to support that verdict. See Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450; Exchange National Bank v. Cullum, 114 Colo. 26, 161 P.2d 336.
Defendant finally contends that the court erred in failing to submit to the jury Colorado Jury Instructions 5:1 which provides:
'The jury is not to infer from the fact that an instruction on measure of damages is given that the court is instructing the jury to assess or not to assess damages. The question of whether or not damages are to be assessed is a question for the jury's consideration.'
Defendant's contention is without merit. This instruction is a cautionary instruction as distinguished from an instruction on the substantive law applicable to a case. The trial court is vested with discretion in determining whether this type of cautionary instruction should be given. See Krieger v. Bausch, 377 F.2d 398 (10th Cir.); 1 E. Branson, Instructions To Juries (3rd ed. A. Reid) s 42. Where, as here, the only issue is the amount of damages incurred, the jury is properly instructed as to the plaintiff's burden of proof, and there is undisputed evidence as to actual out-of-pocket expenses incurred by the plaintiff which are recoverable as a matter of law, we conclude the trial court does not abuse its discretion in refusing to give this instruction.
We have examined defendant's other allegations of error and find them to be without merit.
The judgment is affirmed.
PIERCE and SMITH, JJ., concur.