Noel v. Dubuque, Bellevue & Mississippi R.

| Iowa | Oct 5, 1876

Dissenting Opinion

Beck, J.,

dissenting. — I concur in the conclusion announced in the foregoing opinion that the action of the Circuit Court, in rendering judgment for a sum less than the verdict, is erroneous, and that the case must be reversed. But I dissent from the other conclusion that the cause must be remanded with leave for plaintiff to accept a judgment of $1,000, and, in case of his refusal to do so, then the verdict to be set aside and a new trial to be granted. There would be ground for this order if the court below had expressly found the verdict excessive, and that $1,000 is the true amount of plaintiff’s damages. , There are no such findings in the record. Neither did the court find that justice required a new trial in case the verdict was not reduced to $1,000. To warrant the court below in setting aside the verdict all these conclusions of fact should have been found. It is not competent for us to find them or to direct the court below to proceed as though they had been found.

The action of the Circuit Court in rendering the judgment for $1,000 was unauthorized, and without cause found or assigned which appears in the record. Surely such erroneous action can raise no presumption that the Circuit Court did find the facts upon which, alone, the proceedings required by the order of this court, provided for in the foregoing opinion, may be had upon the case being remanded.

In my opinion the judgment of the Circuit Court should be reversed and the cause remanded, with directions that judgment on the verdict as rendered be entered.

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Lead Opinion

Day, J.

The action of the court, it seems to us was clearly erroneous. The plaintiff has the right to have the amount of his damages assessed by a jury. He is under no obligation to accept the determination of the court upon that question. ■True, the court has rights which he may exercise, and duties which-he should perform.

If satisfied that the verdict is so excessive as to appear to have'been given under the influence of passion or prejudice, it is both his right and his duty to set it aside and grant a new trial. If satisfied that the verdict ought not to stand because of its excessiveness he may fix upon an amount deemed reasonable, and may give the successful party the option to accept that sum, or submit to the setting aside of the verdict, and the granting of a new trial. This is a very common practice, and it has been sanctioned by this court. See Brockman v. Berryhill, 16 Iowa, 183" court="Iowa" date_filed="1864-04-22" href="https://app.midpage.ai/document/brockman-v-berryhill-7092958?utm_source=webapp" opinion_id="7092958">16 Iowa, 183. But we know of neither principle nor precedent, which justifies the nisi prius court in fixing upon an arbitrary sum, less than the verdict of the jury, and sajdng to the successful party, you must accept that. No authority has been cited by defendant to sustain this action.

As the court below, under the evidence submitted, thought the damages excessive, but that plaintiff was entitled to $1,000, the cause will be remanded with directions to give the plaintiff the option of accepting that sum, and, in the event of his refusing to do so, that the verdict be set aside and a new trial granted.

Revised.