The opinion
MOSK, J.
I concur in the affirmance of the judgment on the merits, but I dissent from the reversal on the issue of damages.
A jury and a trial judge considered general and punitive damages and concluded the sum of $25,000 to be appropriate. The trial judge considered and denied a motion for judgment notwithstanding the verdict and a motion for a new trial. Unless the amount of the judgment shocks the conscience, a reviewing court has no right to substitute its views of the facts for those of the trial court. The majority do so here, contrary to well-settled rules of law.
“The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. . . . An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.” (Holmes v. Southern Cal. Edison Co. (1947) 78 Cal.App.2d 43, 51-52 [ 177 P.2d 32 ]; see, e.g., Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 263 [ 73 Cal.Rptr. 127 ]; Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 580-581 [ 30 Cal.Rptr. 350 ]. The matter was stated even more succinctly in Morris v. Standard Oil Co. (1922) 188 Cal. 468, 473 [ 205 P. 1073 ]: “The question of excessive damages is one that is first addressed to the trial court. Practically, the trial court must bear the whole responsibility in every case.”
Part of the damages awarded here were punitive. Again, the law on this subject is clear. “[The jury’s estimate] of what would be sufficient as a *312 punishment and a deterrent and an example was very high as compared with the actual damages assessed and high from any point of view, but it would hardly be candid to invite them . . . to fix such sum which expressed their judgment in such matter, and then charge them with bias or perversity because the measure of their abhorrence of defendant’s conduct and their judgment of what would be a sufficient punishment and deterrent was represented by a larger sum of money than that which some other man or men would have allowed.” (Di Giorgio Fruit Corp. v. AFL-CIO (1963) supra, 215 Cal.App.2d 560, 581 , quoting Scott v. Times-Mirror Co. 61919) 181 Cal. 345, 367 [ 184 P. 672 , 12 A.L.R. 1007 ].)
It is common knowledge that we currently live in a period of persistent inflation. The cost of living index, as reported by the United States Department of Labor and reflected in private and public salaries—including those of judges—has been steadily rising. 1 It is not improvident for the jury and trial judge here to find that the current market rate of injury to reputation, shame and hurt feelings has also risen substantially.
I suggest that my colleagues, in evaluating damages, are clinging to standards of two or three decades ago. Indeed, on the subject of excessive damages the majority cite only three California cases: Rosenberg v. J. C. Penney Co., 30 Cal.App.2d 609 [ 86 P.2d 696 ], Washer v. Bank of America, 87 Cal.App.2d 501 [ 197 P.2d 202 ] and Luke v. Mercantile Acceptance Corp., 111 Cal.App.2d 431 [ 244 P.2d 764 ], Rosenberg was decided in 1939, Washer in 1948 and Luke in 1952. The dollar is a much different commodity in 1969, and as a result the sum awarded to plaintiff will cause very little concern to the defendant bank and its culpable employee. “In assessing [punitive] damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff which the defendant caused or intended to cause, and the wealth of the defendant.” (Rest., Torts, § 908.)
Indeed, the defendants stressed other issues and referred to excessiveness of damages most casually. While they suggested in their opening brief in the Court of Appeal-—but at no time since—that the trial court had failed to consider the issue in post-trial motions, the record clearly indicates the judge gave thoughtful consideration to defendants’ contention. In any event defendants have not met their burden in this court of demonstrating the *313 excessiveness of damages. As we said in Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 356 [ 282 P.2d 23 , 51 A.L.R.2d 107 ]: “Since defendants’ claim of excessive damages is primarily factual in nature, they are required to set forth in their briefs all the material evidence on the point, and unless this is done their contention is deemed to be waived.”
I would affirm the judgment in its entirety.
McComb, J., and Peters, J., concurred.
Respondent’s petition for a rehearing was denied December 23, 1969. McComb, J., Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
The persistence of inflation, even in periods of peace and prosperity, has confounded some economics experts. But in relative good times and bad, inflation has been strongly manifest in the United States ever since the end of World War II. Steel prices, a barometer of the nation’s economy, have doubled each decade. In recent years the levels of living costs have reached new highs “month after month with monotonous regularity.” (Galbraith, The Affluent Society (1958) 210 ff.)