54

the reasons indicated, the exercise of such a power, which must depend upon discretion, would not now be assumed if the conclusion. as declared by the jury could not be upheld." A similar view is held by Beck, C. J., of the Iowa Supreme Court, in two dissenting opinions. But the general current of authority and the weight of precedent is to the effect that such action by the court is permissible. In a case in the New York Superior Court, this language is used: "We are satisfied that the verdict ought to have been considerably less; and the amount is so much more than it should have been, as to indicate either passion or prejudice on the part of the jury. It is a case, therefore, where we feel compelled to interfere with the verdict, and to set it aside as excessive, unless some other remedy may be adopted. Then what is proper to be done? We have considered it, and find no objection in principle to reducing the verdict to an amount such as, if the jury had found it as damages, we would not interfere with their conclusion. That is, in effect, for the court to say to the plaintiff: 'If you will enter a remittitur, so as to reduce. the verdict to such a sum as we think would not have been unreasonable if it had been found by the jury, we will not set it aside.' This practice is very common in actions upon contract, where the party has recovered more than he is entitled to. The only doubt is whether, in actions of tort, the court can adopt the same practice. We see no objection to it in principle, and it will often relieve the parties from the expense and delay of a new trial. We find that this has been done in an action of trover in the courts of South Carolina.56 That the court has entire control of the matter is shown by the case of Boyd v.

33 Gale v. New York &c. R. Co., 53 How. Pr. (N. Y.) 391, per Westbrook, J.

Collins v. Council Bluffs, 35 Iowa 439; Rose v. Des Moines &c. R. Co., 39 Iowa 257.

Chicago &c. R. Co. v. Des Lauriers, 40 Ill. App. 654; Conwell v. Jeger, 21 Ind. App. 110; s. c. 51 N. E. Rep. 733; Efroymson v. Smith, 23 Ind. App. 451; s. c. 63 N. E. Rep. 328; Tucker v. Hyatt, 151 Ind. 332; s. c. 51 N. E. Rep. 469; Rose v. Des Moines &c. R. Co., 39 Iowa 246; McKinley v. Chicago &c. R. Co., 44 Iowa 314; Collins v. Council Bluffs, 35 Iowa 432; Union &c. R. Co. v. Mitchell, 56 Kan. 324; s. c. 43 Pac. Rep. 244; Southwestern Mineral R. Co. v. Cross, 7 Kan. App. 506; s. c. 54 Pac. Rep. 139; Benagam v. Plassam, 15 La. An. 703; Chitty v. St. Louis &c. R. Co., 148 Mo. 64; s. c. 49 S. W. Rep. 868; Cullar v. Mis

souri &c. R. Co., 84 Mo. App. 347; Rosenfeld v. Siegfried, 91 Mo. App. 169; McGowan v. Giveen Mfg. Co., 54 App. Div. (N. Y.) 233; s. c. 66 N. Y. Supp. 708; Kalfur v. Broadway Ferry &c. R. Co., 34 App. Div. (N. Y.) 267; s. c. 54 N. Y. Supp. 503; aff'g s. c. 23 Misc. (N. Y.) 417; 51 N. Y. Supp. 179; Carl v. Pierce, 10 Ohio C. D. 711; s. c. 20 Ohio C. C. 68; Nashville &c. R. Co. v. Smith, 6 Heisk. (Tenn.) 174; Western Union Tel. Co. v. Frith, 105 Tenn. 167; s. c. 58 S. W. Rep. 118; San Antonio &c. R. Co. v. Connell, 22 Tex. Civ. App. 533; s. c. 66 S. W. Rep. 246; Davis v. Bowers Granite Co., 75 Vt. 286; s. c. 54 Atl. Rep. 1084; Kavanaugh v. Janesville, 24 Wis. 620.

56 Guerry v. Kerton, 2 Rich. (S. C.) 507. See also, Young v. Englehard, 1 How. (Miss.) 19.

Brown," which was a similar case, the action being trespass. There the court, finding that excessive damages had been given, ordered a new trial for the assessment of damages only, and not permitting either party to go into any question as to the right to recover. The decision shows, we think, that the court may give the plaintiff the option to reduce his verdict to an amount which the court would not have deemed unreasonable or excessive."58 The Supreme Court of Ohio, discussing the question, uses this language: "The court gave him his choice, to accept a reversal of the judgment and a new trial upon the merits, or to remit a sum which in the judgment of the court was in excess of the amount which ought to have been recovered. The plaintiff elected to receive the amount of the judgment less the excess. By this election he was bound. He obtained a judgment for $1,500, which he would not have received had he not assented to the action of the court. That he assented reluctantly does not alter the case. By giving consent, he became bound by the action of the court."59

$7361. Further of Remittitur.-Some courts take the view that where a verdict is so flagrantly excessive as to be only accounted for on the grounds of prejudice, passion, or misconception, a remittitur by the trial court as a condition of entering judgment will not remove the prejudice, passion, or misconception, since these elements may have entered and probably did enter into the finding of other facts important to the issue, if not to the issue itself." But where the verdict is rendered for an amount in excess of that justified by the evidence, and the trial court has reduced the amount to such sum as it deems proper, and the amount as so reduced is supported by the evidence in all other particulars, the judgment entered thereon will not ordinarily be reversed on the ground that the verdict is the result of passion and prejudice.61

$ 7362. Whether Damages are Adequate.-In cases where the amount of the award is attacked on the ground of its inadequacy, the court will grant a new trial only where it clearly appears that the jury must have been influenced by passion, prejudice, partiality, corruption or mistake as to the law or facts. The court should not

"17 Pick (Mass.) 461. See also, Winn v. Columbian Ins. Co., 12 Pick. (Mass.) 279.

Diblin v. Murphy, 3 Sandf. (N. Y.) 21.

Iron R. Co. v. Mowery, 36 Ohio St. 418.

Co Pittsburgh &c. R. Co. v. Story, 104 Ill. App. 132; Chicago Terminal Transfer R. Co. v. Helbreg, 99 Ill. App. 563.

01 Dashiel v. Harshman, 113 Iowa 283; s. c. 85 N. W. Rep. 85.

hesitate to set aside a verdict so influenced or attained.62 Applying this rule, courts have reversed judgments on the ground of the inadequacy of the damages where substantial damages were clearly established and nominal damages only were awarded; where the injured person sustained a fracture of two ribs, suffered great pain and was disabled for labor during several months and was awarded $15 by the jury;64 where injuries were clearly sustained and liability for medical attendance was incurred and the award was less than the charges for medical attendance, where personal injuries were sustained and the verdict allowed a certain amount for necessary medical expenses but nothing for the injuries;65 where injury to the plaintiff resulted in the loss of a leg, necessitating idleness for a year, and his earning capacity thereafter was reduced three-fourths and a verdict for $1,000 was returned. On the other hand, a verdict of $10 has been held a sufficient compensation for an injury to pride and mortification caused by a public arrest where it was procured by a conductor in the belief that the plaintiff was fraudulently attempting to avoid payment of his fare when he in fact tendered a valid ticket, but unreasonably refused to state whether the name on the ticket was his own.

62 Tathwell v. Cedar Rapids, 122 Iowa 50; s. c. 97 N. W. Rep. 96; Sullivan v. Vicksburg &c. R. Co., 39 La. An. 800; s. c. 2 South. Rep. 586; Robinson v. Waupaca, 77 Wis. 544; s. c. 46 N. W. Rep. 809. A judgment of $300 damages in an action for personal injury will not be set aside as inadequate unless its injustice is plainly apparent: Wunderlich v. Mayor &c., 53 Fed. Rep. 854.

a

63 Henderson v. Louisville R. Co., 24 Ky. L. Rep. 394; s. c. 68 S. W. Rep. 645; Moseley v. Jamison, 68 Miss. 336; s. c. 8 South. Rep. 744; Carpenter v. Red Cloud, 64 Neb. 126; s. c. 89 N. W. Rep. 637; Tooker v. Brooklyn Heights R. Co., 80 App. Div. (N. Y.) 371; s. c. 80 N. Y. Supp. 969. Where the evidence showed that plaintiff received fracture of his kneecap; that he suffered great pain, and was permanently injured; that he was unable to work for about 120 days, during two months of which time he was in the hospital; and that he was earning $1.50 a day at the time of the accident, a verdict for six cents will be set aside as insufficient: Sloane v. McCauley, 33 Misc. (N. Y.) 652; 68 N. Y. Supp. 187.

64 Kelly v. Rochester, 38 N. Y. St. Rep. 797; s. c. 51 N. Y. Supp. 29.

a Hurley v. Metropolitan St. R. Co., 87 App. Div. (N. Y.) 66; s. c. 83 N. Y. Supp. 1082. A verdict of $100 to a husband for deprivation of his wife's society, and for expenses necessarily incurred by him because of her injuries, will be set aside as inadequate, the undisputed evidence showing he has paid or is liable to pay considerably more than that for expenses rendered necessary by her injuries: Caswell v. North Jersey St. R. Co., 69 N. J. L. 226; s. c. 54 Atl. Rep. 565. A verdict for $1,000 damages for injuries resulting in the total and permanent disability of a woman twenty years of age, with continuous and severe suffering, who was previously healthy and earned $4 a week, and who had, during three weeks after the injuries, expended more than $3,000 in seeking to be relieved from the consequences of such injuries, is grossly inadequate: Smith v. Dittman, 11 N. Y. Supp. 769; s. c. 34 N. Y. St. Rep. 303.

65 Katz v. Brooklyn Heights R. Co., 35 Misc. (N. Y.) 302; s. c. 71 N. Y. Supp. 744.

66 Eberhardt v. Metropolitan St. R. Co., 174 N. Y. 522; s. c. 66 N. E. Rep. 1107; aff'g s. c. 69 App. Div. (N. Y.) 560; 75 N. Y. Supp. 46.

67 Palmer v. Maine &c. R. Co., 92

So, a court refused to set aside as inadequate a verdict for $167, awarded as damages for personal injuries, on the ground that the jury must have been influenced by a perverted judgment, where the testimony tended to show that the injured person was, to some extent, an invalid before the injury, and that the pain and disability suffered by her since the injury should, in part at least, be attributed to previous ill health, while the circumstances attending the injury and her condition presently thereafter, tended to show that it was not so severe as claimed.68

§ 7363. Whether Damages are Excessive Depends on Facts in Particular Cases-Illustrative Cases.-Uniform rules for the appraisement of losses suffered as the result of negligent acts cannot be extracted from the multitude of cases passing directly upon the question of the sufficiency of damages in particular instances. These cases are determined by juries upon the evidence in the particular case in hand, and the surprisingly wide differences in the amounts returned for similar injuries can be accounted for in some measure when this fact is borne in mind without involving the investigator in a wholesale denunciation of the jury system. Some of the more recent cases involving the question of disproportion between the verdict and the loss sustained are collected and arranged in the margin.69

Me. 399; s. c. 4 Chic. L. J. Wkly. Co., 135 Cal. 435; s. c. 67 Pac. 176; 42 Atl. Rep. 800.

Robinson v. Wapuca, 77 Wis. 544; s. c. 46 N. W. Rep. 809.

"Head. Verdicts held Not Excessive: $18,000 (young woman-skull fractured part of bone removed inflamation causing nervous headaches-loss of memory-weak eyes -broken, lacerated arm, partially stiffened-injuries permanent), Stewart v. Long Island R. Co., 166 N. Y. 604; s. c. 59 N. E. Rep. 1130; aff'g s. c. 54 App. Div. (N. Y.) 623; 66 N. Y. Supp. 436; $10,000 (healthy young man skull crushed-removal of portion-loss of left eyecheek fractured-great physical and mental pain-incapacitated for labor), Missouri &c. R. Co. v. Parker, 20 Tex. Civ. App. 470; s. c. 49 S. W. Rep. 717; 50 S. W. Rep. 606; $9,000 (head cut-one leg broken-confined six months-leg shortened-heavy medical penses), Farish v. Reigle, 11 Gratt. (Va.) 697; $7,000 (head injuredunconscious ten or twelve days suffering at time of trial-injuries permanent), Dolan v. Sierra R.

ex

Rep. 686; $4,100 (man eighteen years old-skull fractured-permanent injury to eyes and brain), Revolinsky v. Adams Coal Co., 118 Wis. 324; s. c. 95 N. W. Rep. 122; $2,625 (woman-injury to bone of head permanent, causing spells of suffering), St. Louis &c. R. Co. v. Baker, 67 Ark. 531; s. c. 55 S. W. Rep. 941; $2,000 (railroad firemanhead, spine, legs and hip permanently injured-great suffering in mind and body-doctor bill $300-unable to work for a long time), Kansas City &c. R. Co. v. Lackey, 114 Ala. 152; s. c. 21 South. Rep. 444; $1,800 (girl four years old-injury to forehead leaving scar-severe pain), Travers v. Murray, 87 App. Div. (N. Y.) 552; s. c. 84 N. Y. Supp. 558; $1,400 (woman-left side of head injured and swollen-knee and elbow bruised and bleeding-ear bleeding -unconscious three days-confined to bed three weeks to house seven weeks-great suffering in head and hip-pains in left ear headaches-weight reduced twenty pounds), Radjaviller v. Third