Schiedt v. Dimick

70 F.2d 558, 1934 U.S. App. LEXIS 4224

• Court: Court of Appeals for the First Circuit
• Decided: April 20, 1934
• Docket: 2884
• Status: Published

Opinions

WILSON, Circuit Judge.

The plaintiff-appellant brought an action to recover for injuries caused by the alleged negligence of the defendant-appellee in operating his automobile. The jury found that the defendant was liable, and awarded damages in the sum of $500. The plaintiff filed a motion for a new trial on the ground of inadequate damages.

The trial judge denied the plaintiff’s motion, the defendant having consented to a stipulation that judgment be entered against him for $1,500, or an increase in damages of $1,000 over that awarded by the jury. The trial judge based his rulings on the authority of two eases in the state courts: Gaffney v. Illingsworth, 90 N. J. Law, 490, 101 A. 243, and Carr v. Miner, 42 Ill. 179.

But the issue is whether, under the Seventh Amendment of the Federal Constitution, a federal District Judge, in a common-law action, may re-examine the facts, and, against the protest of the plaintiff, deny a motion for a new trial by the plaintiff on the ground of inadequate damages, provided the defendant consents that judgment be entered for an additional sum fixed by the court.

Notwithstanding the great respect we have for the well-considered rulings of the judge presiding below, we think that the eases cited do not warrant the action taken in this ease. The action in the ease of Gaffney v. Illingsworth was based chiefly on a rule of the Supreme Court of New Jersey; and the case of Carr v. Miner was taken merely to correct an omission of a definite item of damage, as in the case of Clark v. Henshaw Motor Co., 246 Mass. 386, 140 N. E. 593. In any event, whatever may be the practice in the state courts, it is not sufficient ground for sustaining similar action in a federal court, United States v. Train et al. (C. C.) 12 F. 852; Indianapolis, etc., R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Minneapolis, etc., Ry. Co. v. Moquin, 283 U. S. 520, 521, 51 S. Ct. 501, 502, 75 L. Ed. 1243, and the Seventh Amendment of the Federal Constitution, we think, prohibits such action in the federal courts.

The Seventh Amendment provides:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

Justice Story, in interpreting this amendment in Parsons v. Bedford, 3 Pet. 433, 446, 447, 448, 7 L. Ed. 732, said:

“The only modes known to the common law to re-examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings. The judiciary act of 1789, ch. 20, § 17, has given to all the courts of the United States ‘power to grant new trials, in eases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.’ ”

In the case of Capital Traction Company v. Hof, 174 U. S. 1, 7, 19 S. Ct. 580, 583, 43 L. Ed. 873, the court said:

“A comparison of the language of the seventh amendment, as finally made part of the constitution of the United States, with the declaration of rights of 1774, with the ordinance of 1787, with the essays of Mr. Hamilton in 1788, anfl with the amendments introduced by Mr. Madison in congress in 1789, strongly tends to the conclusion that the seventh amendment, in declaring that ‘no fact tried by a jury shall be otherwise re-examined, in any court of the United States, than according to the rules of the common law,’ had in view the rules of the common law of England, and not the rules of that law as modified by local statute or usage in any of the states.

“This conclusion has been established, and ‘the rules of the common law’ in this respect clearly stated and defined, by judicial decisions.”

The Supreme Court in the last-cited case quoted with approval the language of Judge Sprague in United States v. 1363 Bags of Merchandise, Fed. Cas. No. 15, 964, 2 Sprague, 85, 87:

“ ‘At the time of the adoption of the constitution it was a part of the system of trial by jury in civil eases that the court might, in its discretion, set aside a verdict.’ ‘Each party — the losing as well as the winning — has a right to the legitimate trial by jury, with all its safeguards, as understood when the constitution was adopted.’”

Also see Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 243, 43 S. Ct. 118, 67 L. Ed. 232.

The only federal statute relating to new trials is section 726, Rev. St., as amended by chapter 48, 40 Stat. 1181, 28 USCA § 391, which provides that:

“All United States courts shall have power to grant new trials, in eases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law.”

The -remainder of the section, in view of the Seventh Amendment, can have no bearing on the issue now before this court, and the entire section is, of course, limited by the prohibition contained in the Seventh Amendment.

While at the time of the adoption of the Federal Constitution, when the ground for a new trial was excessive damages, there were authorities in the early English common-law courts holding that a new trial might be granted on the ground of excessive damages, Blackstone’s Com. vol. 3, pp. 388-392; but the practice of defying a motion for a new trial on this ground, if a remittitur was filed by the plaintiff, does not seem to have become firmly established in England except by consent of both parties. Leeson v. Smith, 4 Neville & Manning’s Rep. 304, 306; Watt v. Watt, Appeal Cases, 1905, p. 115. Also see 2 Am. & Eng. Ann. Cases, 672 (a decision by the House of Lords).

In any event, we have been referred to no English ease, nor has one been found after a somewhat extensive research, in which it has been held that, in case of inadequate damages, a new trial may be denied, provided the defendant consents to have judgment entered for a larger amount — fixed by the court —than the verdict of the jury. Ducker v. Wood, 1 T. R. 277; Hewlett v. Cruchley, 5 Taunt. 277; Duberley v. Gunning, 4 T. R. 651; Chambers v. Caulfield, 6 East. 244; Hurry v. Watson, cited 4 T. R. 659, 660; Fabrigas v. Mostyn, 2 Sir W. Blackstone’s Reports 929; Cuming v. Sibly, 4 Burr. 2489; Phillips v. South Western Railway Co., 4 Q. B. D. 406.

The ease of Belt v. Lawes, 12 Q. B. D. 356, in which it was held that a motion for a new trial might be denied, if a remittitur was filed, was later considered and overruled in Watt v. Watt, supra (which also involved a reduction of excessive damages), in which case the Earl of Halsbury said at page 119: “My Lords, I am unable after a very anxious examination of the earlier authorities to assent to the legality of this proceeding unless by the assent of both parties. * * * Hesitating, as I do, to differ from the opinion expressed by my noble and learned friend Lord Lindley, I have come to the conclusion that there is no power in the court to alter the verdict except by ordering a new trial. * * * ”

The case of Watt v. Watt was cited in Lionel Barber & Co. v. Deuche Bank, Appeal Cases (1919) 304, 314, 315, as establishing the rule that, according to the English common law, the defendant is entitled to insist that the ease be reheard by another jury, and that excessive damages cannot be reduced except by consent of both parties. Reference to a prior practice where the issue was not raised cannot, of course, control carefully considered opinions by the House of Lords.

However, the practice of denying a motion for a new trial, in case of a remittitur being filed, was early recognized in the federal courts, following, no doubt, the practice in some of the lower English common-law courts, as it was understood at the time of the adoption of the Constitution, Blunt v. Little, Fed. Cas. No. 1,578, 3 Mason, 102; Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, 9 S. Ct. 458, 32 L. Ed. 854; Kennon v. Gilmer, 131 U. S. 22, 29, 9 S. Ct. 696, 33 L. Ed. 110; and, while in case of a clear omission of some definite item of damage, certain state courts, to avoid the expense of a new trial, have ordered judgment for an amount that will include the omitted item, as in Carr v. Miner, supra; James v. Morey, 44 Ill. 352, and Clark v. Henshaw Motor Co., supra, it has never heen held by any federal court that a motion by a plaintiff for a new trial on the ground of inadequate damages, where the damages were unliquidated, could be properly refused, provided the defendant consented to have judgment against him for a larger sum — determined by the court — than that awarded by the jury.

Granted that the Seventh Amendment does not require that old forms of practice and procedure be retained to preserve the right of trial by jury according to the rules of the common law, Walker v. New Mexico & Southern Pac. R. R. Co., 165 U. S. 593, 596, 17 S. Ct. 421, 41 L. Ed. 837, that it does not prohibit the introduction of new methods for determining what faets are actually in issue, that it does not prohibit the introduction of new rules of evidence, or that new devices may not be used to adapt the ancient institution to present needs to make of it an efficient instrument in the administration of justice, and that such changes are essential to the preservation of the right, the limitation imposed by the amendment does require that enjoyment of the trial by jury shall not be obstructed, and that the ultimate determination of issues of fact by the jury shall not be interfered with. Ex parte Peterson, 253 U. S. 300, 309, 310, 40 S. Ct. 543, 64 L. Ed. 919.

The determination of damages may be submitted to arbitration, but only by consent of both parties; and, in case of default, the court may assess damages or refer the question to assessors; but, where one of the parties has asked for a jury trial, no fact found by a jury can be re-examined in a United States court except in accordance with the Seventh Amendment.

That issues of fact must be submitted for determination by a jury with such instruction and guidance by the court as will afford opportunity for that consideration by the jury which was secured to litigants by the rules governing trials at common law is not a matter of form, but of right. Gasoline Products Co. v. Champlin, 283 U. S. 494, 498, 51 S. Ct. 513, 75 L. Ed. 1188. Beyond changes in forms of practice and procedure from those followed in jury trials at common law, the federal courts have never approved any departure that in the final analysis in any way impaired a litigant’s right to have a jury in a common-law action weigh the evidence and determine the facts.

Limitations upon the powers of the trial court under the Seventh Amendment over the verdict of a jury have been defined by the Supreme Court in Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029; Young, Adm’x, v. Central R. R. Co. of New Jersey, 232 U. S. 602, 34 S. Ct. 451, 58 L. Ed. 750; Capital Traction Co. v. Hof, supra; Northern Pac. R. R. Co. v. Herbert, 116 U. S. 642, 6 S. Ct. 590, 29 L. Ed. 755; Minneapolis, etc., Ry. v. Moquin, supra; Fairmount Glass Works v. Cub Fork Coal Co. et al., 287 U. S. 474, 485, 53 S. Ct. 252, 77 L. Ed. 439; also, see, United States v. Train, supra; Hughey v. Sullivan (C. C.) 80 F. 72; Moran v. Washington Ry. & Elec. Co., 60 App. D. C. 155, 49 F.(2d) 679.

The statement in the opinion in Arkansas Valley Land & Cattle Co. v. Mann, supra, page 74 of 130 U. S., 9 S. Ct. 458, 32 L. Ed. 854, that the authority of a trial court to determine whether the damages are excessive implies authority to determine when they are not of that character, obviously cannot be construed as definitely holding, or even implying, that, in ease of inadequate damages, the trial court has the power to determine an amount that is not inadequate, if in excess of that awarded by a jury. The language in the Arkansas Valley Land & Cattle Co. Case clearly refers only to the power of a trial court to fix the maximum amount that is not excessive, when a jury upon an examination of the facts has awarded a larger and excessive amount.

In the case of an excessive verdict, and the trial court refuses to grant a new trial'on motion of the defendant, provided a remittitur is filed by the plaintiff, the denial of a defendant’s motion is sustained on the ground that he is not prejudiced, because the judgment entered is for a less amount than a jury has already found against him; but, when the damages awarded by a jury are clearly inadequate, and the plaintiff’s motion for a new trial on that ground is denied, provided the defendant consents to have judgment entered against him for an increased amount fixed by the court, although the plaintiff recovers more than the award of the jury, he is thereby denied the right to have a jury pass on the amount of his actual damages. In the first case, a jury has already awarded a sum in excess of that fixed by the court as a basis for a remittitur, which, at least, finds some support in the early English practice; while in the second case no jury has ever passed on the increased amount, and the practice has no precedent according to the rules of the common law.

In order to avoid the prohibition of the Seventh Amendment, the burden, we think, is on the party seeking to sustain an alteration of a jury’s verdict by a federal judge to show that it is “according to the rules of the common law.” Such a practice cannot be sustained merely because, in the case on trial, it may seem to the trial court to advance the cause of justice, end litigation and lessen tho expense, if it impairs the right of trial by jury as established in the common-law courts of England at the time of the adoption of the Constitution and the Seventh Amendment.

If the plaintiff in this ease was entitled to recover, he was obviously entitled on the evidence to recover more than $500 for pain and suffering, loss of wages, and expenses of treatment in effecting a recovery; but, as there was some evidence tending to show that the plaintiff was guilty of contributory negligence, the inadequate verdict may well have been due to a compromise among the jury. If so, a new trial was clearly the only proper remedy.

The Supreme Court in Minneapolis, etc., By. Co. v. Moquin, supra, held that, if the excessive damages were due to passion, bias, or prejudice, no remittitur can be filed, since, as the court said:

“In actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. Obviously such means may be quite as effective to beget a wholly wrong verdict as to produce an excessive one. A litigant gaining a verdict thereby will not be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.”

The federal courts have no authority to order a judgment for one party when the jury has found a verdict for the other, or, what was termed in the ancient practice, a judgment non obstante veredicto. Young, Adm’x, v. Central R. R. Co. of New Jersey, supra.

For the trial court to limit the amount of damages a plaintiff can recover in addition to those found by the jury, even with the consent of the defendant, is as much a usurpation of the prerogatives of the jury and a violation of the Seventh Amendment as in the case of awarding a verdict non obstante veredicto, especially when the damages are unliquidated.

The Wisconsin courts appear to have adopted such a practice in ease of inadequate damages; but, as has been pointed out, the practice in this respect in the states cannot control in the federal courts. Since we have been referred to no other cases, either state, federal, or English, than those above referred to, in which such a practice is approved, and since such an exhaustive work on federal procedure as Hughes’ Federal Practice makes no reference to such a practice in the federal courts, and as the granting of a new trial fully preserves the rights of both parties, it leads us to conclude that there is no necessity, or sound basis, for such a departure from the rules of the common law.

The judgment of the District Court is reversed, with costs, and the case is remanded to that court for further proceedings not inconsistent with this opinion.