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Show Page 4 Monday, July 28, 1958 TIIE DAILY RECORD Extracts from Recent Decisions of the Supreme Court of the State of Utah (Continued from page 3) be held, with any semblance of reason, that that court, with the consent of the defendant only, may, by assessing an additional amount of damages, bring the constitutional right of the plain, tiff to a jury trial to an end in respect of a matter of fact which no jury has ever passed upon either explicitly or by implication? To so hold is obviously to compel the plaintiff to forego his constitutional right to the verdict of a jury and accept 'an assesment partly made by a jury and partly by a tribunal which has no power to assess.' " In Lemon v. Campbell (3), after esposing the reasoning (above, the court revealed (another cogent reason why it is error to permit an increase in the judgment over and above the verdict, when it said: "There is another matter a one is also which practical involved. In an order refusing a new trial for an excessive verdipt, provided a remittitur is filed of the verdict in excess of a fair and reasonable amount, as determined by the trial court, it is the plaintiff, who was successful on the trial, and whose freedom from contributory negligence was established by the jury, who is given the option of deciding whether he will accept a reduction of the verdict of the jury or insist on a new trial. But where a new trial is refused, conditioned on the defendant agreeing to pay the plaintiff a sum in excess of the verdict of the jury, it is the losing, negligent defendant who has the option of deciding whether a new trial shall be granted or an increased amount be substituted for the verdict of the jury." Montarta (4) agrees, stating: "That a judgment may be re versed and a new trial ordered, where the damages awarded are clearly inadequate under the evidence, has been many times affirmed by this and other courts; but this court has never assumed to exercise the authority or power of 'scaling a ver. diet upward.' " Other Cases follow this rule(5). In my opinion, this decision, at least by implication, presents an inaccurate picture of the procedure followed in (this case, and also a disarming justification for the rule it lays down for the first time. It asserts that "This alternative) does not infringe upon the right of trial by jury, because the party favored(7) by (the order is seeking relief from the inadequacy of the jury verdict, while the party adversely affected always can choose the new trial if he so desires. Such a statement reasonably suggests that the plaintiff asked the lower court for a new trial, or in the alternative, for an amount over and above the verdict. No motion for such relief can be found in the record. Oqly a motion for a new trial can be found there, on the grounds that "the damages awarded were inadequate, appearing to have been given under (the influence of passion or prejudice, To give any other impression is to ignore the record. Now, for the first time on ap peal, so far as can be determined from this record, the plaintiff makes a brand new motion, a motion for a new trial or in the alternative for an amount over and above the verdict. Such motion is quite foreign to o mere motion for a new trial. In permitting such procedure and granting the relief asked for for the first time on appeal, (this court assumes the role of a trial court, and indulges a procedure that is a stranger to both the trial court and the record. If such motion can be made for the first time on appeal, it follows that a motion for a new trial on any statutory (8) or other grounds should be entertained for the first time on appeal. Such entertains ment, of course completely Rule 59 and the provisions therein relating the giving of notice, etc., and such procedure reflects a novel and rather startling departure from standard appellate practice, quite out of harmony with the numerous pronouncements of this court refusing erwas-culatee- to review matters not entertained at the trial level. By another wind of additur, a statement has been incorporated in the main opinion since this writers dissent was inked, to which I feel constrained to address myself. It is said that: "There is implicit within the authority of the court to grant a new trial on the statutory Ground of 'excessive or inade quate damages,' the power to order a new trial conditionally: that is, to order that a new trial be granted unless the party adversely affected by the order agrees to a remittitur or an additur. This is a departure from the idea that the plaintiff had asked, in the (alternative, for a new trial or an additur. Up until the time the statement quoted above was made, there was no implicitness Whatever in the authority of this court, sua sponte, to grant a new trial unless the defendant pay something more than the jury found to be due fn the Way of damages, and I do not believe this challengeable since the main opinion acknowledges that we know of no case in which this court has directed an increase of an award of damages." In my opinion, this decision gives the court a power it never had, and one that trespasses into constitutional territory involving denial of both a jury trial and due process. It lays down wHat I think is a dangerous rule, (that, even where no one seeks the relief, we, who were not participants at the trial, can grant a new trial unless defendant pays a sum we arbitrarily' set, forcing the plaintiff, who has absolutely no choice in Hie onatter, to take Ithe added amount without any possibility of observation having a jury pass on the matter. In doing so, it is of course necessary that we admit that the in adequacy was a basis for a new trial under Rule 59. If such inadequacy calls for a new trial, I think it calls for a new trial with a jury. Requiring plaintiff to take what may be an inadequate additur with no choice in the matter is as much a denial of a jury trial as to deny it to him in Ithe first place. If this court can add $400 to a $100 verdict, .claiming the latter to be inadequate so as to justify a new trial, then it can add $1.00 to a $100 verdict, and Ithe defendant, by paying $101 effectively could prevent plaintiff, from having a jury trial. .My guess is that this case proves the point, since it would appear reasonable to believe that a plaintiff who is suing for $5,000 would ptrefer to take his chances with a jury on a new trial than to take a sum that obviously would not pay for the cost rule, born in our own mansion, without any authority save our own interdiction, cannot be found in the very rules we ourselves promulgated, and does violence, in my opinion, to Rule 59. Carried to its logical conclusion it would seem to me that this rule would authorize a new trial (or an additur even where a jury brings in a verdict Of no cause of action; There seems to be nothing apparent in the record of this case that would have caused the jury to become prejudiced against the plaintiff any more than against the other plaintiff, whose case Was tried simultaneously with plaintiffs (before the same judge and the same jury. Yet in this case we conclude that the jurys verdict was inadequate to the extent of what it of being only 20 should have been, justifying a new trial on the ground Ihe jury was influenced by passion or prejudice. In the companion case, dealing with another personality who also claimed injury by eating tainted meat at the same table, we held thalt the same jury was not influenced by passion 'or prejudice in any percentage or at all. 236 Wis. 419, 259 N.W. (1941); rule Which Springer v. Newberry Co., 94 jurisdiction F. Supp. 905 (1951). 7. The plaintiff. 8. Rule 59, Utah Rules of Civil Procedure. WORTIIEN, Justice: (Concurring) defendant agrees to the increased judgment is proper. It is observed by Mr. Justice Crockett ' that We know of no case in which this court has directed an increase of an award of damages. But there appears to be no persuasivfe reason for any differentiation between doing so and ordering a reduction because the verdict is excessive. In his dissenting opinion Mr. Justice Henriod is in agreement with Mr. Justice Crockett as to no case having increased an award of damages but disagrees that there is no persuasive reason for difunderto me It is difficult for ferentiation between decreasing stand How this selfsame jury and increasing the amount of the could be the exemplary agency verdict. which is the subject of such high In this connection it should be complimentation in the opinion ini the other suit, and at the same observed that our statutes from time be the impassioned, preju- the Revised Statutes of 1898 to diced and penurious agency and including Utah Code Annotatwhich the main opinion here must ed 1943 did not authorize grantmean by its adversion to the ver- ing a new trial for inadequatee dict as being outside the limits damages. Subdivision (5) of SecU.C.A. 1943 relating of any reasonable appraisal of tion to new trials provided "(5) Exdamages." to In arriving at its conclusion cessive damages, appearing inthe have been under given and to substantiate it, two exor prejudice. fluence of passion over Of damage litigation amples to horses are given, which I beRule 59(a) of our Rules of Civil lieve are not apropos of the ques- rPocedure adopted January 1, tion of remittitur or aidditur at 1950, changed ground number (5) all. If, as the opinion says, the to read as follows: "Excessive or evidence shows that the facts are inadequate damages, appearing to as related in the examples, there have been given under the inWould seem to be nothing to give fluence of passion or prejudice. to the jury, since there would be no facts to find, end the case It would seem that if this court would be decided on motion for has been right over the years in directed verdict, or on summary requiring a remittitur of part of judgment under Rule 59, at a pre- an excessive verdict under the statute prior to the effective date trial, as' a matter of law. that believe I of the Rules of Civil Procedure, it Furthermore, in related even under the facts should likewise be privileged to sufthe main opinion, these is order an increase in Hie amount of ficient competent evidence to sus- the verdict as an alternative for tain the verdict. It is pointed out granting a new trial. that Ithe plaintiff suffered $69.00 I am not impressed with the out of pocket expense, and that "of the $100 awarded him this examples set out in the majority leaves only $31.00 as general dam- opinion. In both examples if the ages for the pain, distress and in- evidence shows without dispute convenience of having the di- the amount of plaintiffs damage the court should not submit that sease." The jury may not have believed question to the jury, but only the some of the testimony about pain question of liability. If that were and suffering. If there was suffi- done the right to a new trial or cient believable evidence to sup- modification of the amount of port the verdict, this case is de- damages would not be presented. parting from its numerous proI am of the opinion that notnouncements heretofore made to the long established the effect that if there be any withstanding of our courts in ordering substantial evidence to support practice new trials conditionally, the enthe verdict we will not disturb it tire subject should be thoroughon appeal. I believe the court has to determine if our reviewed fallen into the error of setting ly in this respect is warconclusion out facts testified to and then ranted. It will be conceded that asumming that the jury had to be- subdivision of Rule 59(a) is lieve them all. Under the facts not warrant (5) for granting a new of this case I do not think the trial conditionally. It authorizes court abused its discretion in deof a new trial, without granting nying a new trial. Its judgment conditions, for "Excessive or Inshould be affirmed! adequate damages, appearing to have been given under the influence of passion or prejudice. 1. 99 Utah 381, 105 P (2) 176. U.S. 293 2. DLmick v. Schiedt, (Emphasis ours) The majority opinion states the 474, 79 L. ed. 603, 55 S.C. 296, 95 A.L.R. 1150 (1935). See also Lorf v. Detroit, 14$ Mich. 265, 108 N.W. (1906); Dorsey v. Barba, 38 Cal (2 ) 350, 240 P ' of litigation and appeal. The unfairness of the rule laid down by the court seems apparent when one realizes that in ordering a new trial unless the defendant pay something more that we choose arbitrarily to set, without (2) 604 (1952). 3. 136 Pa. Super. 370, 7 A (2) choice in the giving plaintiff any 643 (1939). matter, leaves the entire matter of 4. Osterholm v. Butte Co., 60 a new whether plaintiff may have Mont. 193, 199 P. 252 (1921). to not misfeasant the trial or up 5. Dekeyser v. Milwaukee Co., wrongdoer, the defendant. Such "There is implicit within the authority of the court to grant an we trial . . . the power to order a new trial conditionally: that is, to order that a new trial be granted unless the party adversely affected by the order agrees to a remittitur or an additur of the damages to an amount within proper limits as viewed by the court. that a new trial be or that something that granted was not determined by the jury be added to its verdict. 6. Requiring I am of the opinion that the order granting a new trial unless 104-4&- 2, has obtained in this as follows: It is submitted that in any case in which this court has made a conditional order for a new trial it was first necessary to determine that grounds existed for granting a new trial. In the case of Duffy v. Union Pacific R. Co. (1), the jury awarded damages in Ithe amount of $9,000. This court made the following order: "It is ordered that the judgment appealed from be reversed and a new trial granted, with costs to appellant, unless respondent shall, within 15 days from the date of filing of this opinion, file in this court a re- -' mittitur in the sum of $4,000 and accept a net verdict of ..."order was mlade in the $5,000 A similar of Mecham v. Foley cited in the main opinion. In this case the order grants a new trial unless the defendant agrees to the increase of Ithe j udgment from $100 to $500. Is it not strange to give the privilege and option to the party other than the one who requested and Who is entitled to a new trial to consent to a reduction or an increase and thereby avoid the case new trial? In the Duffy case, supra, this court holding, as it did, that the defendant was entitled ito a new trial, should have given the defendant the option of paying the $5,000 or of (being granted a new trial. Why in this case should not the court, after concluding that plaintiff is entitled to a new trial, give plaintiff and not the defendant the option of accepting the additur or of having a new trial. The House of Lords has held that no remittitur can be effective to avoid a new trial where damages are excessive unless both parties consent to the same(2). I am in accord with that view and believe that this court would take a more realistic, view if we adopted the same. The logic in this position is clear. The right to a new trial lies with the aggrieved party who has been the object of a jurys Impassioned or prejudiced verdict. (Should that partys right be subject to the narrow view of Ihe trial judge as to what should constitute a fair verdict without his consent and with only the consent of the party not entitled to a new trial. Once it is concluded that a new trial is warranted because of excessive damages it becomes a bargain between the itrial judge or this court, and the party not entitled to any relief in which bargain the aggrieved party has no voice. 1. 2. 118 Utah 82, 218 P.2d 1080. Watt v. (1905) A.C. 6 B.R.C. 1, 2 Ann. (Eng.) 115, Watt Cas. 672. Read It In The Daily Record |