Plaintiff was a passenger in a car driven by tbe defendant John Boemer, which collided with another automobile driven by the defendant Harvey Halvorson. The plaintiff brought suit against the two defendants, claiming $56,000 for personal injuries which he suffered in the accident. The jury returned a verdict for the plaintiff in the sum of $8,000, after which he moved in the alternative for a new trial on the issue of damages and, in the event of denial, for a new trial on all of the issues. The motion was made on the minutes of the case.
The trial court ordered that the motion be denied on the condition that each of the two defendants consent to an entry of judgment in the sum of $9,830.92 against them jointly, and otherwise the motion for a new trial on all of the issues was to be granted. The trial court added a memorandum in which it stated that it was aware of the problem of the constitutionality of additur but that it felt that there was justice in the use of additur in this case and that it was following the modern trend and the implied invitation of this court by using it.
Both defendants consented to the entry of judgment in the increased amount. Plaintiff appealed from the order of the trial court on the ground that the use of additur constituted an infringement upon his constitutional guarantee of a jury trial.
The defendants point out that the case is not properly before this court because the motion for a new trial was made on the minutes of the trial court and there is no settled case. The defendants’ point is well taken.
1
However, the only issue raised by the appeal is
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whether the trial court has the power to condition a denial of a new trial on the defendants’ consent to an increase in the judgment to he entered against them. Since the file and record before us contain all that is necessary to fully consider the issue raised, we will decide it in the absence of a settled case. Paul v. Pye,
Remittitur, the opposite of additur, has been established in Federal and state practice for a long time. Mr. Justice Story used remittitur to reduce a verdict in 1822. Blunt v. Little (C. C. D. Mass.) 3 Fed. Cas. No. 1,578. It has been consistently held in this state that the trial court has the power to use remittitur when excessive damages appear to have been given under the influence of prejudice or passion “so long as the prejudice or passion is not shown to have affected the decision of the jury upon the other issues in the case.” Cox v. Chicago G. W. R. Co.
In one case in which the use of remittitur was sustained, the court made a significant statement concerning the question raised in the instant case. “The law is thoroughly established in this state, in harmony with authority elsewhere, that the trial court or this court may grant a new trial for excessive
or inadequate damages
and make it conditional upon the party against whom the motion is directed consenting to a reduction
or an increase
of the verdict.” (Italics supplied.) Podgorski v. Kerwin,
Additur has been declared unconstitutional in the Federal courts as a violation of U. S. Const. Amend. VII guaranteeing the right of a jury trial. Dimick v. Schiedt,
The majority opinion, hewing closely to a strict interpretation of Amend. YII, emphasized that (
In a constructive dissent, Mr. Justice Stone, in support' of his argument that the constitution did not prohibit the trial judge from adopting the practice of increasing the verdict under proper circumstances, argued that there was nothing in the history of Amend. YII to suggest that it had any purpose but to preserve the essentials of the jury trial as it was known to the common law before the adoption of the constitution; that it does not prescribe any particular procedure by which the trial of issues of fact by a jury shall he obtained, (
A few later Federal cases indicate that Federal courts have been influenced by the dissent in Dimick v. Schiedt. In one case the alternative holding was that a judgment which had been increased by an additur consented to by the defendant from $9,000 to $16,000 should be affirmed because no error occurred at the trial for which a new trial ought to have been granted at common law. United States v. Kennesaw Mountain Battlefield Assn. (5 Cir.) 99 F. (2d) 830, cer-tiorari denied,
However, even if Dimick v. Schiedt is the law in the Federal courts, we are not required to follow it. Amend. VTI is not binding upon the states. Pearson v. Yewdall,
The question of the constitutionality of additur has not been dealt with previously in this state. In Olson v. Christiansen,
“For the simple reason that, if the jury’s verdict had in fact been for |1,000 instead of $500, it would still have been inadequate, we find it unnecessary to consider plaintiff’s contention that where passion and prejudice have once motivated the jury the use of additur, followed by defendant’s consent thereto, works a deprivation of the right to a jury trial in violation of the constitution.”
In Roelofs v. Baber,
One Minnesota case which involved a procedure very analogous to additur, if not the very same thing, is Ladd v. Newell,
*533 “* * * It is the same in principle as an order directing an excess to be remitted from a verdict.”
In Mohr v. Williams,
«* * * Where the damages are susceptible of ascertainment by calculation, and the jury return either an inadequate or excessive amount, it is the duty of the court to grant unconditionally a new trial for the inadequacy of the verdict, or, if excessive, a new trial unless plaintiff will consent to a reduction of the amount given by the jury.”
However, if the trial court is under any such duty to grant a new trial unconditionally when the verdict is inadequate, it certainly has not been complied with for additur has been a recognized practice in this state for many years.
An examination of authorities from other jurisdictions indicates varying views as to the validity of additur. New Jersey and Washington have held additur to be within the power of the trial court. Gaffney v. Illingsworth, 90 N. J. L. 490,
While it is apparent there is a wide area of disagreement among the authorities as to this issue, we think that the better authority, as expressed by Mr. Justice Stone’s dissent in Dimick v. Schiedt,
supra,
as well as a reasonable appraisal'of Minn. Const, art. 1, § 4, in the light of recognized practice in this state, compels the conclusion that the practice of using additur is in the interest of the sound administration of justice and that in the case before us the trial court was within its constitutional power in raising the amount of damages with the consent of the defendant. This practice avoids the necessity of a new trial with its accompanying expense and delay. 23 Calif. L. Rev. 536, 537. It does not prejudice the plaintiff’s interests any more than the use of remittitur prejudices those of defendant. 44 Yale L. J. 318, 324. Under the practice the plaintiff receives more than the jury did award him, and if the damages as increased are still inadequate, the plaintiff may appeal on that ground (Rule 59.01 [5] of Rules of Civil Procedure), at which time the appellate court will have the benefit of the trial court’s judgment as to what may constitute an adequate verdict. To the extent that Mohr v. Williams,
Order affirmed.
Notes
See, Rule 59.02 of Rules of Civil Procedure; Scheffer v. Hage,