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Collins v. Hertenstein9/3/2002
are at liberty to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may in their judgment require. Buckley, 48 Mo. at 162-63 (relying on 2 Greenl. Ev., section 89).
The Sperry court adopted this dicta in holding that the character and standing of the parties is an element that should be taken into consideration in awarding punitive damages. The question is, however, who should take the character evidence into consideration--the jury or the court? The cases are split on this issue.
In Buckley, the Supreme Court certainly says that the jury should consider the parties' "rank in life." Id. The Sperry court, saying that the parties' character is an "element which should be taken into consideration in awarding [punitive] damages," also suggests that the matter is for the jury's consideration. Sperry, 185 S.W. at 174. Indeed, this court, in Lyons v. St. Joseph Belt Railway Company, 84 S.W.2d 933, 946 (1935), cert. quashed by State ex rel. St. Joseph Belt Railway Company v. Shain, 108 S.W.2d 351 (Mo. 1937), quoted the elements noted in Sperry and said that "the jury . . . has considerable range in respect to the amount of the verdict in any particular case, according to the facts in the record thereof." See also Holcroft v. Missouri-Kansas-Texas Railroad Company, 607 S.W.2d 158, 164 (Mo. App. 1980); Peak v. W.T. Grant Company, 386 S.W.2d 685, 693 (Mo. App. 1964); Walker v. St. Joseph Belt Railway Company, 102 S.W.2d 718, 726 (Mo. App. 1937).
Recent cases, however, suggest that the parties' character is an issue only for the court when faced with a determination of whether or not the punitive damage award is excessive. Indeed, in Moore v. Missouri-Nebraska Express, Inc., 892 S.W.2d 696, 714 (Mo. App. 1994), this court set forth the factors that should be considered by the jury in making an award of punitive damages and the factors that should be considered by the court in granting a remittitur of punitive damages. The Moore court held that, in determining whether or not to impose punitive damages, the jury must consider malice, relationship to sustained injury and mitigating circumstances. Id. at 713. It also noted that the jury, in its discretion, may consider the defendant's net worth or financial condition. Id. at 713-14. But the Moore court then held that in reviewing the award to determine whether or not it is excessive, the circuit court may use the same factors as the jury and, in addition, may consider these factors in its post-verdict review:
1. the degree of malice of the act;
2. regarding the injured party:
a) age, sex and health
b) character
c) injury suffered
d) financial worth
3. regarding the defendant:
a) intelligen , standing or affluence
b) financial worth
c) character
4. all circumstances surrounding the conduct including mitigating and aggravating circumstances. Id. at 714.
The Supreme Court cited Moore with approval in Call v. Heard, 925 S.W.2d 840, 850 (Mo. banc 1996), cert. denied, 519 U.S. 1093 (1997). The Call court discussed the constitutional requirements for imposing punitive damages and then set forth additional factors to be considered in determining the award's propriety:
To supplement the requirements set out above for imposition of punitive damages, the courts of this state have identified a variety of factors, a nonexclusive list, that may also be considered in determining the propriety of an
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