*1 PLAINTIFF-APPELLANT, FISCH, v. GEORGE WILLIAM BRANIN, BRANIN MANGER & MANGER AND LEE T/A CLAUSI, AND BERNARD DEFENDANTS-RESPONDENTS. Argued February 25, April 1957. 1957 Decided *2 Mr. Ishmael Sklarew argued cause for appellant. Mr. John Stockel C. the cause argued for the respondents. opinion The of the court was delivered by Jacobs, J. The plaintiff suffered serious injuries and, trial, automobile accident after a jury received $3,000. the sum of He for a applied because inadequacy verdict but his application was denied when the defendants consented that awarded to the $7,500. increased the sum of plaintiff appealed we thereafter certified on our own motion.
On September motorcycle Petras officer was on duty traffic the intersection of Bunn’s Lane and Amboy halted north- He Woodbridge. Avenue in the Township enable Avenue to Amboy traffic along south-bound was the car The plaintiffs of school children. crossing his Avenue and Amboy third in line south traveling along him. ahead of full as did the two cars car came stop owned the rear truck He was then struck in individual de- defendant and driven by partnership the plaintiff both testimony fendant. According defendant explained the individual motorcycle officer his foot that he thought at the scene of the accident made trial he denied having At the “slipped off brake.” rear ran into the admit that he such statement but did on the plaintiff’s and that the stoplights car plaintiff’s was that after His story were in order. proper working car standstill, it started brought car had been plaintiff’s *3 stop a sudden very was then brought and moving again re- feet. When the jury after traveled about 12 having had that it its stated turned its unanimous verdict foreman driver.” During of the truck part found on “negligence court expressed new trial the lower application beyond peradventure that was established “liability opinion the same view. doubt,” and we entertain of a was struck he that when his car The testified plaintiff “a terriffic bang” and forth” and received back jerked “was ahead the car head; striking his ear went forward on his in line. he Although the first car in turn struck which he he would “be impact thought had received severe he drive On the way and started home. all right” car, and was his stopped ultimately pains,” “began get He called Trooper. Oopleman, State Dr. driven home Copieman the next six weeks. Dr. during treated him who was plaintiff his examination showed testified that his and back which he diag- neck injury from suffering snapped the head had been “a lash whip injury, nosed as him with He treated impact.” originally back ** * x-rays his took pain and drugs “sedatives treatments, him and back, diathermy gave neck and of his that he wear brace for his neck.” had to recommend finally this During time he plaintiff, though wore recom- mended brace and night day, complained of much pain, little Dr. seeing improvement recommended Copieman that the Dr. plaintiff Hoffman, consult an orthopedic physi- cian of New Brunswick.
On the advice of Dr. Hoffman the entered the plaintiff Middlesex General on November 1953 and Hospital remained there for two weeks. time he was During traction, placed failed, which however, to relieve his intense Dr. Hoffman pain. that the was suspected plaintiff from disc he suffering ruptured consulted Dr. Scheuer- man, a Trenton. neurological Scheuerman surgeon Dr. examined the 17, 1953, on plaintiff November made a disc, diagnosis probable and recommended that ruptured he return to the for further hospital The study. plaintiff returned to the on hospital November 1953 and a was myelogram performed; confirmed plaintiff disc, ruptured a hemilaminectomy was performed Dr. Scheuerman with Dr. Hoffman assisting. discharged from hospital 10, 1953; December he remained at home until 1954 and February then returned to his employment, but on a only basis. part-time On 1954 he July returned to the hospital where Dr. Scheuerman removed oil which had been inserted in the canal spinal He during did not resume myelogram. full-time work until 1954. September
Dr. testified Scheuerman that he administered post- treatment operative plaintiff, who has continued to *4 is pain have some and “not able to do all of the usual duties he that had previously.” Dr. Hoffman testified that the on left a operation plaintiff residual which he described as follows: “Well, great pain he has had a deal of At back. one time listing pelvis, had a
he that the iliac crests were not level. prescribed heel, And that time had a he thickened sole and to bring up side, it to normal. And he has no reflexes left no quadriceps patellar reflexes; reflexes, extensor or and has he atrophy muscles, compared opposite side, of the calf with is a a little over half an inch in circumference difference.” his to perform still is unable testified that he plaintiff which and pains and back leg
heavier duties experiences seda- without narcotics, he to prescribed sleep takes is unable substantial and sit at tion, is unable to one place Dr. Hoffman and of time. Scheuerman length Both Dr. the plain- relation between testified that there was aausal and the hemilaminec- tiff’s accident on September No medical testimony which was thereafter. tomy performed defendants, whatever introduced contrary was were injuries that the plaintiff’s do although they urge an earlier accident which attributable, at in part, least he suffered on 1950. February law plain- resulted in a action
The 1950 accident answers to interroga- later discontinued. In tiff which was he “par- that was tories in that stated plaintiff action February his work between attending from tially prevented 27th, his were 1950”; injuries and that 20th February headaches; “concussion; vertigo; back sprain; lumbo-sacral hearing or both ears and loss of ringing slight tinnitus to his ears”; injury he “will permanent both that claim headaches”; and that his last and and hearing back loss However, 1950. were in and June May medical treatments suffered no plaintiff actually record indicates that He testi- aftermaths of 1950 accident. pertinent really us to suggest otherwise) there before (and nothing fied his prior after 1950 and accident of February he lost a work “outside of day’s never September that,” like and that during having something cold his health he good engaged sports period The defendants work in normal fashion. suggest heavy “chronic back to the 1953 accident prior later condition,” relate to the for a they operation which disc, specifically hospital refer record they ruptured Dr. made Hoffman; Hoffman the entry Dr. but entry that he was explained 1953 and referring on November 1953 accident; after the condition his plaintiff’s to the he had didn’t chronic back say prior “I language: own after the only That was accident.” accident.
71 The actual and plaintiff’s doctors nurses expenditures to $2,200. for And drugs hospitalization exceeded he most although received of his normal earnings despite his temporary there was loss incapacity, wages approxi $620. mating $3,000 While verdict of about jury’s just took care of the losses, it awarded plaintiff’s actual monetary substantially permanent for his in nothing suffering Its juries. gross the trial inadequacy recognized pointed who judge dispute out that “there was but that no the plaintiff suffered and was rendered excruciating pain, helpless On totally considerable of time.” period 28, June 1956 the trial advising wrote to the judge parties that unless the defendants filed consent writing $3,000 the verdict $7,500, be increased from “then the to verdict heretofore rendered will set aside and a new trial granted limited filed The consent was only.” 30, defendants and on 1956 a June formal order was entered motion new trial. dismissing plaintiff’s it was Though unnecessary, obtained leave to 2:2-1; from the R. appeal Division. See Appellate R. Richter, 4:61; R. R. v. State 21 N. J. 421 (1956), cf. certiorari denied 351 U. S. 76 S. 100 Fd. Ct. L. Haines, 1492 State v. 20 N. (1956); J. 438 Palm (1956); Ivers, Beach Mercantile v.Co. 2 N. J. 5 Div. Super. (App. 6 Moore’s Federal Practice 3891 ed. 1949); (2d 1953). first which he point his urges support appeal once trial had concluded that the damages inadquate
awarded verdict were it had no legal power of a whatever condition grant defendants’ failure consent prescribed increase in the But Gaffney Illingsworth, verdict. see v. 90 N. J. L. Lazar, &
492 1917); Fsposito 2 N. J. (E. Elvin Public Service Coordinated (1949); Transport, Bradner, 4 N. J. Div. Super. (App. New 1949); Harris, Law Practice Marsh Jersey (McC. 1940); § Jersey and Practice New Pleading ed. (rev. 1939); § Sheen, New Law Practice Jersey (2d ed. Much 1931). law reviews support has appeared practices *6 of remittitur and. additur as aids enlightened securing substantial between the without the burden- justice parties costs, some and harassments of new trials. See delays Carlin, ,” Q. 49 “Remittiturs and Additurs W. Va. L. 1 Note, Remit “Correction Verdicts (1942); Damage by ,” Note, titur and Additur “Ad 44 Yale L. J. 318 (1934); Note, ditur in California,” 40 Cal. L. Rev. 276 (1952); Remittitur,” “Additur and 26 L. Rev. 836 Va. (1940). Millar, Procedure,” “Notabilia American Civil 50 Cf. Scott, Harv. L. Rev. 1052 Fundamentals (1937); Procedure in Actions at Law 119-131 The term (1922). remittitur is used an the to describe order defend- denying ant’s for new trial that application on condition plain- award, tiff consent a reduction specified jury’s whereas term additur is used to describe an order deny- a new trial ing plaintiff’s application on condition that a defendant consent to increase in the specified award. While it is jury’s recognized now the two are practices logically and realistically indistinguishable, remittiturs have been recognized almost whereas everywhere, some, additurs are still outlawed in no means though by all, of the states. O’Connor 309 Compare Papertsian, N. Y. 131 E. 2d N. 883 where the New York (1956), Court sustained Di Appeals unanimously Appellate vision order which denied new trial upon defendant’s $1,000 consent to increase the awarded by jury to Barba, $2,500, sum with 38 Cal. 2d Dorsey P. 2d 604 240 where the Court of (1952), Supreme Cali fornia held Traynor Justice (with dissenting) although its courts new trials properly deny upon could consents by reductions, could not plaintiffs they properly do so upon consents defendants to increases. See 25 Fordham L. by Q. Y. L. 1537 Rev. N. U. (1956); (1956); Cal. Rev., L. 10 Wash. & Lee L. Rev. 46 supra; (1953). to the American English precedents prior Devolution are are they somewhat obscure discussed the majority Schiedt, in Dimick v. minority opinions U. S. 296, 302, 79 L. Ed. 55 S. Ct. There (1935). Justice Sutherland, of five Justice speaking majority (with Stone, Brandéis joined by Hughes Chief Justice Justices and Cardozo, held that remittitur dissenting) although permissible, courts, the federal additur is prohibited by force of Amendment provision Seventh “the to trial shall be by preserved, and that 'no fact tried shall be otherwise re-examined States, court of the United than to the rules according Q. of the common law.’” In Belt v. Lawes B. (1884), 356, the sustained the denial new trial plaintiff’s consent lesser amount than that accept awarded Brett, R. jury; appeal, M. not only ap *7 proved practice followed below but suggested court would also have power “to that the say damages given are small, too but that if the defendant will to their agree a being stated, increased to such sum as a may be new trial shall be refused.” Armytage v. Haley (1843), Cf. Q. 4 917, B. 114 Eng. In the later Rep. 1143. case of Watt v. Watt 115 C. the court took an (1905), opposite the view that a position rejected court could condition a denial trial on the plaintiff’s acceptance of reduced verdict. Lord that a Davey acknowledged contrary and that it practice grown up served generally sub stantial but he considered that justice; there was lack of common law and referred to various dicta judicial effect that award of jury’s could not be reduced “without the consent of both parties.” However, Justice Sutherland in the Dimich case did not follow the result in the Watt case declined to the remittitur upset Little, practice, first Justice in Blunt v. approved by Story 1,578 3 Fed. Cas. No. C. C. ( 1822), Mass. re since in many affirmed federal decisions. See Arkansas Valley Mann, & 69, Land Cattle Co. v. 130 U. 9 458, S. S. Ct. Moore, Ed. 854 and the other L. cases cited in (1889), 3739. supra
In his in the Dimick dissenting opinion case, Justice out that the Seventh pointed Stone Amendment was con with substance rather than cerned form and that
Supreme Court had often declined to construe as per form the minutiae petuating changeless practice as it existed in 1791; courts in he referred English to the many unknown to the law jury procedures common but now well established in federal he considered practice; impersuasive the wholly suggested differentiation between the settled remiUUur practice which the majority continued and the additur practice which it and he rejected; concluded S., with the remarks U. at following (293 496, page Ct., Ed., 305, at page 55 S. L. : page 616) That Kentucky holds relief ington less be set aside on motion for a new motions for new Dickey Clay Mfg. 16 S. Ct. reduce, 523, have not hesitated to resort so much a matter of discretion that only support may the proper the like other. of of a a motion for a new & C. Constr. of which will do substantial [345]; opkins To me it seems “Appellate damages which L. Ed. judgment recovery, necessity [525] proper the defendant has bound himself H [1211], & G. R. Co. v. amount, It aor principle v. ; 284, is difficult verdict.” Ashley, federal Washington does no defendant has consented to or the defendant has consented to Co. or to [291] *8 trial, Co., L. trial, be a bad or Orr, new trial could courts, although 2 Pet. Seymour, appeal indefensible anachronism for the law to compliance ; apply Ed. Tobriner), trial, to see decision, more 289 U. S. where Hansen v. 124 U. S. which for centuries has been & G. R. Co. v. Harmon’s Adm’r 746, 327, 329, than it in the one case and because the when it judicially to the remittitur justice. 91 U. S. [751]. 147 U. S. with a inadequate when, sitting 510, reviewing Boyd, what without common law justly it L. 514, See Harrisonville v. W. S. knows is within the limits The trial supported by condition, is not disturbed when its 646, 656, principle has pay 161 U. S. Ed. increase, 53 S. Ct. 571, 590, 8 S. Ct. be avoided. Bank of reason, may consented to decrease an increased amount 440, where, by increase appeal judge has consented to equity, the denial 23 L. Ed. [441] reject the amount of 590, 397, 411, 412, 13 S. Ct. performance regarded who denies denials of good ; Phillips precedent, 31 L. Ed. it neverthe- it in the he with its (Wash- L. by reject of one: 341, 557, use, Ed.
The in Dimick has been the subject majority opinion it whether the of much criticism and is doubtful Supreme it; event, in any Court would still subscribe to Seventh
75 Amendment differs somewhat from onr constitutional pro vision and has no in our state application proceedings Sauvinet, 90, v. 23 Ed. 678 courts. Walker U. S. L. ; Yewdall, 294, 24 L. Pearson v. U. S. Ed. 436 (1876) Dow, Ct. Maxwell v. S. S. U. (1877). Cf. York, New People
(1947). primarily history desirable whether precedents highly ascertaining to in remittitur be adhered of additur practices may I, 9 of the Art. par. our without of State infringement 1947 Constitution which as follows: provides inviolate; jury right by but remain “The of trial shall jury by Legislature may of of civil causes authorize the trial fifty persons dispute dollars. not exceed when the matter does six may may Legislature provide a verdict civil cause The that jury. Legislature of the be rendered not less than five-sixths incompetency may with- of the issue of mental authorize the trial jury.” out a XXII) 1776 had provided (Art. The Constitution of remain trial shall jury that “the inestimable right without repeal, law this colony, as a confirmed, part I, forever”; 1844 had provided (Art. and the Constitution of inviolate; remain trial shall by jury that “the par. 7) right suits, trial of civil authorize the but legislature may dollars, by fifty does not exceed the matter dispute when consistently have But courts six men.” our high jury the treasured constitutional right recognized and does not rather than form to substance relates by jury which, perhaps though devices procedural efficient preclude law, are nevertheless common part English not strictly the parties fundamental right consistent with wholly fair and impartial determined a the facts to have In and control. judicial guidance under appropriate acting Ct. Clark, 1893), J. L. 55 N. (Sup. Clayton the Constitution provides the court noted inviolate, not that remain “shall to trial by *9 76
shall unalterable,” and later decisions have embodied DeLorenzo, same Slate v. 81 L. expression. 613, See N. J. 616 Co., & A. Sexton v. Newark Dist. (E. 1911); Telegraph 84 N. J. L. 101 86 (Sup. Ct. affirmed N. J. L. 1913), 701 A.& v. 99 L. (E. 1914); Robinson N. J. Payne, & A. (E. 1923). Similarly, Humphrey Eakeley, 141 72 N. L. J. 1905), Ct. affirmed 74 N. J. L. (Sup. & (E. stressed that constitutional 1907), imports freedom harm im language from or substantial pairment but not from all “immunity See regulation.” Maier, State v. N. J. (1953).
The remittitur has been practice New recognized Jersey Mills, since early days. New Flax Cotton Wool Jersey Co. v. 26 N. L. 60, J. Ct. (Sup. 1856); v. Bank Rafferly Jersey City, 33 N. L. 368, J. Ct. (Sup. 1869); Rafferty Co., Harris, v. Erie 66 N. J. L. R. Ct. (Sup. 1901); Not supra. until 1916 was it but questioned, the Court of Errors and found little Appeals difficulty sustaining Delaware, it. Heinz v. Co., L. & W. R. 90 N. L. 198 J. & A. (E. Justice 1916). Trenchard, for a speaking court, unanimous out that pointed England Wait, had denied been in Watt v. had in turn supra (which Lawes, overruled Belt v. but that in our supra), State it had been frequently invoked “to do substantial justice save the expense of new trial” and that “in no sense an impairment constitutional trial by jury.” During Court of Errors and following year, had occasion to Appeals deal with a case in which negligence of additur had practice been invoked. Gaffney Illings- worth, had supra. The returned a verdict $190.25 thereafter announced that if Judge Dungan the defend- ant would consent to the sum of pay $480.50 rather than the amount awarded he would jury, deny plaintiff’s application trial; a new the defendant declined a new trial limited to was awarded. The defendant appealed, trial court contending no authority set aside verdict and a new trial as grant to damages alone. the absence of such Notwithstanding common *10 law power the Court (Scott, supra, 113) of and Errors Appeals summarily of the disposed defendant’s contention reference the by to of the provisions Practice Act of 1913 and the court rules, which implementing explicitly provided for new trials limited to damages. See Robinson v. Payne, The defendant also supra. that the additur urged condition imposed by was Judge Dungan his beyond power; in Walker, Chancellor response, for the entire court, speaking L., (90 had this to say N. 492) J. : page power granting upon “The the court in a trial new the ground damages upon excessive, that the are terms that a new plaintiff accept had trial shall be unless the a will certain sum named, by verdict, less than that a awarded is too well established questioned. follow, by parity to be ing, It would seem to of reason- granted a that when is trial because the are inadequate, may impose terms, is, the court like that terms to the party pay sum, greater effect that if the defeated will certain by verdict, discharged, than that awarded the the will rule sub- ject, power doubtless, appellate of an court to vacate they appear such terms when to be an abuse of discretion. No showing us, such inappropriate is made on the record before this and makes it give appellant’s for us to consideration the other contention, namely, verdict, stands, adequate the as it is proper prejudice partiality part and evinces no or on the jury. adequate proper is, As to whether or not the verdict is application trial, for a new a matter of sound discretion in the court, and, discretion, trial in the absence an abuse of the appellate court cannot review the trial court’s action. And with question damages, apart discretion, the from such we have ' nothing to do.” The case Gaffney additur accepted widely upholding Scott, Carlin, as well as remittitur 128; in our State. supra, Harris, 25; Bradner, supra, supra; Thus, Dean supra. in Harris his Pleading book on and Practice and Professor in Marsh his revision Bradner stated unequivocally the trial court its denial of power condition a new the plaintiffs consent to a reduced upon accept amount or the defendant’s consent to upon increased amount. pay The summary Dean Harris may be following said to have represented general understanding by bench bar: granting ground “In new trial on the the verdict is may give
excessive, court in its discretion specified verdict, option accepting amount of reduced either is, being put Similarly, to a new trial. when the verdict court, inadequate, may give opinion the defendant option paying greater sum than awarded either power submitting or of himself new trial. regulated impose court and is such terms is inherent may Supreme power be exercised rules of Court. Such involving unliquidated actions, as in tort actions contract damages. as well imposing such of the court The exercise of the parties discretionary, of an and in the absence terms *11 subject discretion, appeal. one of the to an This is abuse of not court, prerogatives cannot be interfered which constitutional by legislation.” Harris, supra, § with 664. Convention to our Constitutional delegates who profession sought included members of legal many which modern structure judicial to furnish our with a State advantages the old while acquiring would retain benefits of the jury function of the new. aware of the high Though knew that it had justice, they as an instrument of system controls judicial to subject been constitutionally enlightened its basic integrity. and did not impair which regulations trial court’s power familiar with the Thus were they fully insufficiency case from the because to withdraw a jury 538), require to supra, of the evidence (Harris, §§ answer special interrogatories render a verdict or jury special (Ha a total deny and to 555), supra, grant rris, § remittitur terms which include new trial upon might or partial At no supra, 664). point during or additur (Harris, § thereafter was there any sug Convention or Constitutional controls and that these preexisting judicial regulations gestion curbed; on the contrary, significant should in anywise was in itself to by jury movement relating Record Proceedings, avoid retrials” “costly (1 to designed and resulted in the express Conv. p. 610) Const. to provide provision authorizing Legislature constitutional Const. Art. I, verdicts civil cases. for five-sixths 9. par. the 1947 our after the Constitution adoption
Shortly deal anew with the practices had occasion to courts Lazar, In remittitur and additur. Esposito supra, v. returned a verdict sum of $1,200;
the trial court found the damages inadequate ordered trial limited a new to unless the defendant consented $3,500. to to award The defendant refused increasing $3,000. and on retrial awarded On this appeal, court, Justice opinion by Ackerson, cited approvingly Gaffney Illingsworth, supra, expressly recognized a trial court has new trial discretionary power deny upon plaintiff’s consent a reduced amount accept ot the defendant’s consent to amount. See pay larger J., held, It N. 259. page however, case before new trial should not limited have been damages because the jury verdict original appeared repre sent on the compromise liability. issue of See finding Co., Inc., Hendrikson 11 N. J. Koppers (1953); Aleles, Juliano v. L. 510 N. Ct. J. (Sup. 1935). Cf. Goodheer, Dahle v. 38 N. J. Div. Super. 1955), (App. certiorari denied 20 J. 534 N. (1956).
In Elvin v. Pubic Service Coordinated Transport, supra, summarized Appellate Division the pertinent judicial controls which had been exercised in our practice old *12 new; been continued in have our in the course of his opinion court, the for McGeehan said: Judge Jersey, judge negligence “In New the in the trial aof action has recognized over the
certain inadequate. controls when he deems it judge may grant Under Rule 3:59-l the a new trial part issues, upon all or as to motion made to him. Under judge, may initiative, 3:59-4 his own Rule the of order a new any might granted trial for reason which he have a new trial party. Further, judge, discretion, motion of a the in his may give option paying the defendant the of a stated increase going or the amount of the verdict on to a new trial as to the damages, subject power appellate amount of to the of an to any they appear such vacate terms when to be abuse of dis Esposito Lazar, (1949), cretion. 2 N. v. J. 257 which is a control permitted courts; Schiedt, not Dimick Federal v. 293 U. S. [1935], English (Watt 79 L. Ed. or in the courts (1905), 1).” Watt A. C. B. R. C.
In the all the are satisfied we light foregoing, and additur none practices of remittitur violate and, invoked, onr constitutional interdictions if fairly serve the laudable a further trial where purpose avoiding substantial be attained on the justice basis of may Gransamer, trial. See Meszaros v. 23 N. J. 179 original we (1957). reject first Accordingly, point urged and come now his plaintiff that, to meritorious contention event, $7,500 increase was prescribed “grossly and should set aside.” earlier inadequate be notwithstanding Inc., Lines, Air doubts v. Eastern 128 N. J. L. 46, (Nelson there is now no & (E. 1941)) question of our courts to reverse a trial court’s appellate refusal or not conditioned on remittitur grant (whether where it is satisfied that there additur) has been “an Lazar, abuse of discretion” Elvin v. (Esposito supra; or, Public Service Coordinated Transport, supra) “ ” more modern ‘a manifest denial of terminology, justice.’ Lindroth v. Christ N. See J. Hospital, (1956); Inc., Conklin v. Miele’s Motor Transportation, J.N. 420, 428 Super. matter, Div. In the instant (App. 1957). we believe that the trial had a mistaken notion of judge the evidence which led to his sum scanty prescribing $7,500. He stated that was plaintiff not entitled to a sum, because he did certainly have a back “great condition occurred”; before this accident but the evidence in the record to the view that points whatever “back condition” the as a result of the 1950 accident had cleared and had no relation up severe very injuries resulting from the 1953 accident. Under these special circum highly we believe that the trial stances, court’s action should not to stand and that permitted the interests of justice will served best be a second permitting pass on issue of issue of damages. separable liability clearly decided properly defendants; under against evidence it could have been determined hardly otherwise and need not be submitted redetermination. R. 4:61-1; R. *13 . Goodheer, Dahle v. supra Eeversed, with direction a new trial on the issue of damages. J. The (concurring result). right of trial by
Heher,
secured
jury
by
I,
Article
9 of the 1947 State
paragraph
Constitution, as under like
guaranties of
1844 Consti
tution,
I,
Constitution,
Article
paragraph
Article
“is
XXII,
as it
at
right
existed
law
common
2, 1776,”
remained
July
statute,
not as enlarged by
“*
**
if
each constitutional
anew
provision speaks
as of the time of the
of the instrument
adoption
of which
**
it is a
*.”
part
Town Montclair v. Stanoyevich,
of
6 N. J. 479
Board
(1951). See
Health Weehawken
of
of
Co.,
v. New York
R.
Tp.
Central
10 N. J. 294 (1952).
*
“*
*
The right
diminished,
not
impaired
but is to remain as it
law,
existed at .common
and according
of the
practice
courts
anterior to
establishment
fundamental
law.” State v.
32 N.
L. 403
Doty,
J.
Ct. 1868),
J. See
Howe
(Sup.
Beasley, C.
also
Treasurer
N. J.
Plainfield, 37
L. 145
Ct.
The
(Sup.
1874).
jurors
“compose the
tribunal for
appropriate
the determination of
* *
State,
controverted
fact
*.”
Kohl v.
questions
59 N. J. L. 445
& A.
(E.
1896). And
State Knight,
see
96 N. J. L. 461
&
1921).
A.
Trial
(E.
as the
jury
means of determining
of fact” is of
an
“questions
great
tiquity,
men,
importing
selected,
jury
impartially
whose verdict was
to be
required
of all.
concurrence
Brown v.
Jersey,
State
New
62 N. J.
&
L. 666
(E.
1899), affirmed
U. S.
20 S. Ct.
And the constitutional of trial by controls the exercise the trial level judicial power to set aside a verdict as contrary weight evidence *14 end; the court not “may merely relief to the same
appellate divergent it is of fairly susceptible the evidence where weigh its own for that of the and substitute judgment inferences far the contrary weight if the be “so but verdict jury,” inescapable as rise the conclusion of the evidence give mistake, it transcends partiality,” of passion, prejudice, and is remediable the of the jury constitutional province set an the court not aside verdict power; may as excess of evidence because, upon in the the opinion, its merely and this of otherwise; conception have might well found and civil cases. applies of the evidence criminal weight Weber, 7 N. J. Hager (1951). analysis
As Sutherland’s of case is shown Justice Schiedt, U. S. 55 S. Ct. in Dimick v. history the English there was no in power 79 L. Ed. (1935), of the New adoption Jersey at the time of courts increase, either or con absolutely Constitution of 1776 to in a such fixed case ditionally, damages the award been exercised this. The to increase power for view of the upon in actions mayhem, occasion (a) maimed; upon where had been assessed damages party (b) ground and then inquiry, writ of have awarded without the themselves justices might damages writ; in the amount and some of old cases where (c) certain, as, in example, demand for plaintiff’s an debt. action of Wils. Carrington, Eng. Repr.
In Beardmore was that English in holding decided either reduce without to increase or courts were tort, in unless personal action damages of ante. The exceptional practice granting cases noted “modern,” courts there termed a power “anciently trials was “in exercised,” cases particular never some although they laid from evidence before them.” damages corrected The court continued: [may] damages great difference between cases which “There ideal, assumpsit, certainly seen, as are as between
be and such may measured, trespass goods the sum value where imprisonment, prosecution, actions of malicious slander and other personal torts, opinion, speculation, where the are matter of ideal; principal is also a there difference between a jury, inquiry damages, being only and a writ of the latter inquest Court, of office to inform the conscience of the which they might any inquest all; have assessed themselves without only maihem, ages interposed the case Courts have in all single only; inquiry instance as to the of the writ case H.4, Year-Book we doubt whether is said what the Court *15 they right, abridge damages in that case be that would the unless plaintiff part thereof, the would release because there is not one abridged case to be found the Year-Books the where ever Court damages principal verdict, the after and this is clear down to Rep. 314, Eng. Repr., the [Hawkim Soiet] [81 time of Palmer’s they interposed increasing damages, except 1099] much less have * * maihem; in the case of And in Mayne’s Treatise on Damages the (9th ed.), first edition which was published of is said that “in cases where the amount of was their uncertain damages assessment a matter was so within the peculiarly province the the jury that Court should not alter it.” The author continues, 580: p. given, judge “When an excessive verdict it is usual for the to
suggest sum, agree prevent necessity to to counsel to the of a agreement new trial. In the absence of Court has the no damages ordering to reduce the to a reasonable sum instead of new trial. would from It seem also what was said in the case in recently decided, damages which this was that where the are too small, them, the Court cannot with the consent defendant’s increase plaintiff if the asks for a trial.” In Watt v. Watt B. B. Ann. C. C. (1905), Cas. House idea the of Lords said the that the court could with the consent the reduce the amount plaintiff arose from the fact that in the damages probably old cases the courts had the “adopted somewhat unconstitu tional proceeding refusing give to the judgment unless he would consent to reduce his claim to what ought reasonable,” to be considered method indirect implying the need the assent; for de plaintiff’s since the fendant was not refuse his assent to a likely to proceeding intended his benefit, for the cases theory of seems to with the the court to interfere
have been and the parties; the consent of both depended upon was re- utterly contended for here contrary hypothesis and sound English alien to the common law pudiated practice. affirmed that Earl there L. C. Halsbury, fix the amount of “has no jurisdiction
Court of Appeal attributed he parties”; of both without consent damages demurrer the practice upon in this regard the “confusion” assess have sheriff default, may where the court or “* * * decide that course, usual damages, is often probably question because question itself — are fixed law law, damages where question ** “* * * between he distinction noted or inquiry by and mere inquisition trial by jury latter case inquisition that, assess — and it was at inform the mind of only award they judgment whether would their discretion a trial where as they jury, the amount found amount to interfere as to the of damages jurisdiction no *16 Law, the History Reeves’ Common tort,” in cases of citing of me all the cases seems to to be “theory and the of that a the to interfere with jury’s that the of court right the assent of both by parties.” be only to “is the view contrary declared on And Lord Robertson indefensible.” principle & Bank later of Barber Co. Deutsche (1919),
In the case L., the Lord affirmed true principle C. H. Phillimore to be this: Appeal opinion damages large are and the Court of is of at “Where jury show that awarded is so unreasonable as to that the sum subject proper judicial approached temper, in a has has not admitted, ought not it to have or re- considerations which admitted applied, ought
jected neglected it to have considerations which or aggrieved party to have a new trial. He is of the it is the opinion saying put by that it will form its off the Court not to be awarded, enlarge proper and reduce or sum to be by jury accordingly. damages a to an assessment is entitled He by put composite properly. a de- not to be off which acts He is imperfect might cisión, I a of two or describe it as resultant by jury partly im- a which has acted forces —an assessment made power properly partly by which has no to assess.” a tribunal Schiedt, Sutherland so, And in Dimick v. Justice supra, “while concluded, authority, and with unquestionable de in of respect there was the contrary some to practice rule and the the established creasing damages, practice at the time of law, as it existed in England common the court to Constitution, forbade adoption increase the amount awarded by jury He actions such as that here under observed consideration.” with the that “this in a sense is very special charged court Constitution; and in duty construing upholding it must alert ever be discharge important duty, to see that a doubtful precedent [involving remittitur] if a different ease not extended mere analogy result will be weaken subvert what conceives to land”; be a law of the fundamental principle that “the the verdict of a increase power conditionally from the necessary corollary power does not follow as it,” in the condi decrease since case conditionally remittitur “a has awarded sum already tional jury. remittitur, excess of that fixed as a basis for in the prac which least finds some support early English tice, case, has ever passed while the second no amount, has precedent increased and the no practice to the rules of the common law.” according between the distinction “controlling Sutherland, court and that of the said Justice “is jury,” the former is the determine the law and the power to facts,” latter to determine the and while the remittitur “is not practice case of excessive verdict without plausible the view that what remains is included support excess, in the verdict with the unlawful the sense along —in that it has been found that the remittitur jury, —and *17 excrescence,” has the an merely effect of off lopping yet where an is verdict increased court there inadequate by in is “bald addition of which no sense can be something done and if that be verdict,” in the
said to be included alone, the defendant the consent of with to the verdict right his “constitutional compelled forego made by jury partly 'an assessement accept of a jury which tribunal improperly, partly which has acted ” has no to assess.’ remittitur practice while the out that pointed It was there than for more federal acceptance jurisdiction in at circuit Story’s ruling Justice century, following 1,578, C. Lillie, Mason 102 (C. Blunt Fed. Cas. No. v. to increase had undertaken no federal court 1822), cases are numerous there although award of damages, damages. inadequate a new trial was granted which that in Gaffney save Jersey, true of New And this is equally a new trial & A. 1917), 90 N. J. Illingsworth, L. (E. an in would consent unless the defendant was ordered the plaintiff $190.25 crease of the jury’s Lazar, error J. 257 In 2 N. (1949), Esposito $480.50. limited to damages a new trial the award of was found a “compromise” indicated in that the amount of the verdict liability. on sanctioned the addiiur practice
There can be no doubt that the common-law right the essence of here contravenes Con- the adoption time of under the law stitution, then and ever since a basic own substance of our very and this is the of England; State; a common-law We are still constitutional guaranty. in force law are of the common and the essential principles and statutes our own Constitution as modified except This, in virtue with the Constitution. enacted keeping Meghrigian, mandate. Taneian v. constitutional explicit N. J. 267 (1954). in Dimiclc proceeds of the minority The reasoning courts,” in the federal accepted hypothesis, “long for a a motion discretion judicial denying “exercise is too small or too that the verdict trial, on ground of error or appeal,” to review on writ subject is not large, rule that an more general a “special application
87 the facts which induced court will not re-examine appellate the un trial,” a new the trial court to or grant deny increased whose has been willing plaintiff inadequate “has suffered denial of a because court no by right court, hand, undisturbed, the verdict its has left staying the defendant had refused have done if lawfully might verdict,” and, the common more than the pay although could law had made rule on the court subject 1791, no not refuse to either apply principle general “rightly it is to exercise a discretionary application competent which is withhold relief in not or power grant way function, “when sitting unjust,” judge’s analogizing “relief with a to withhold equity,” compliance condition, which do substantial will performance Lawes, Q. L. R. 12 B. Div. 356 (C. Belt justice,” citing case the House of Lords in remittitur overruled 1884), Watt, supra. Watt v. cited into
But this does take account basic rationale not own constitutional of trial right jury, our quality the common after the and manner and essentiality mode “the law” and “the law, to this very day glory English any subject most transcendant which can enjoy,” privilege 3, And Blackstone, 379. to use words of p. Bk. is without in this acceptance country,
additur principle general Dimick for the annotation to reasons. See given Co., 1163; 95 A. L. Burdict v. Missouri Pac. 123 Ry. R. 453, 26 L. R. A. 384 1894); Mo. 27 W. (Sup. S. Ct. 206; 3 39 Jur. Am. Jur. 688. It is doctrine also Am. Smith, of the civil law. La. So. Southall 1922); A. L. Ct. v. Payne, R. Stoehr (Sup. A., 44 L. R. N. Ct. (Sup. 132 La. So. S. constitutional rather 1913). one of question than procedural expediency. the court has an absolute
Ho one would contend that an at law assess action for a damages unliquidated can it other than that when the tort; yet personal in these its on the imposes judgment circumstances concerned here with We are not unwilling plaintiff?
action for liquidated fixed damages, a mere mathematical calculation from ascertained data or capable of certain computation made, on the record or a submission to the court without a on a stipulation of the facts. Jur., Error, See 3 Am. Appeal and section 1180.
If the trial has the judge here, asserted so also is it the province of this court on a review of the sufficiency or insufficiency of award aby jury. issue weight evidence is now cognizable appeal. Hager Weber, supra. R. 1:5—3 provides R. that a verdict of a “shall set aside jury against weight evidence if, due having given regard opportunity of the trial court and the pass credibility witnesses, clearly convincingly appears that the verdict was the result mistake, partiality, prejudice passion.” And yet this court does not undertake to supply deficiency assessment of the trial nor judge, remand the cause for a reassessment but judge, directs a limited to . damages.
I concur in this result. Oliphant
Mr. Justice in this joins opinion. Hehbr Oliphant, JJ., in result. concurring For reversal —Chief Justice Vanderbilt, and Justices I-Ieher, Oliphant, Burling, Jacobs and WeintrauB' —6.
For affirmance —Hone.