70 F.2d 558 (1st Cir. 1934), 2884, Schiedt v. Dimick

Docket Nº:2884.
Citation:70 F.2d 558
Party Name:SCHIEDT v. DIMICK.
Case Date:April 20, 1934
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 558

70 F.2d 558 (1st Cir. 1934)

SCHIEDT

v.

DIMICK.

No. 2884.

United States Court of Appeals, First Circuit.

April 20, 1934

Page 559

David H. Fulton and Leo P. Doherty, both of Boston, Mass., for appellee.

Before WILSON and MORTON, Circuit Judges, and MORRIS, District Judge.

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 cases 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 cases cited do not warrant the action taken in this case. The action in the case 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 re-examined 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, Sec. 17, has given to all the courts of the United States 'power to grant new trials, in cases 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

Page 560

declaration of rights of 1774, with the ordinance of 1787, with the essays of Mr. Hamilton in 1788, and 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 cases 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 cases 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 denying 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 case, 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 defendants 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 case 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 case 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;

Page 561

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 been 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 facts 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...

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6 practice notes
  • Rethinking the additur question in federal courts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Nbr. 16, January 2011
    • 1 Enero 2011
    ...... to practical convenience in doing substantial justice and saving expense.'" (alteration in original) (quoting Schiedt v. Dimick, 70 F.2d 558, 564 (1st Cir. 1934), affd, 293 U.S. 494 (1935))); Freeman, 401 N.E.2d at 111 (viewing legislative endorsement of additur and remittitur rele......
  • 683 A.2d 47 (Del.Super. 1996), 94C-07-117-WTQ, Carney v. Preston
    • United States
    • Delaware Superior Court of Delaware
    • 1 Agosto 1996
    ...permitted remittitur while condemning additur. The majority, in affirming the Circuit Court of Appeals, Schiedt v. Dimick, 1st Cir., 70 F.2d 558, 562 (1934), elaborated on a somewhat metaphysical concept wherein a jury verdict, a human judgment, is transformed into a quantitative and divisi......
  • 293 U.S. 474 (1935), 78, Dimick v. Schiedt
    • United States
    • Federal Cases United States Supreme Court
    • 7 Enero 1935
    ...being in effect part of the Constitution, cannot be altered now under pretense of adapting the common law to altered conditions. P. 487. 70 F.2d 558 Certiorari to review the reversal of a judgment for damages in an action for personal injuries, entered on denial of the plaintiff's motion fo......
  • 66 Cal.2d 821, 29342, Jehl v. Southern Pac. Co.
    • United States
    • California Supreme Court of California
    • 2 Junio 1967
    ...46; 23 Cal.L.Rev. 536, 537; 14 So.Cal.L.Rev. 490; see also the comment in 44 Yale L.J. 318, 323--324, on Schiedt v. Dimick (1st Cir. 1934) 70 F.2d 558. [7] Dimick v. Schiedt, supra, 293 U.S. at 484, 55 S.Ct. [8] Dimick v. Schiedt, supra, 293 U.S. at 486, 55 S.Ct. 296. There are several repl......
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5 cases
  • 683 A.2d 47 (Del.Super. 1996), 94C-07-117-WTQ, Carney v. Preston
    • United States
    • Delaware Superior Court of Delaware
    • 1 Agosto 1996
    ...permitted remittitur while condemning additur. The majority, in affirming the Circuit Court of Appeals, Schiedt v. Dimick, 1st Cir., 70 F.2d 558, 562 (1934), elaborated on a somewhat metaphysical concept wherein a jury verdict, a human judgment, is transformed into a quantitative and divisi......
  • 293 U.S. 474 (1935), 78, Dimick v. Schiedt
    • United States
    • Federal Cases United States Supreme Court
    • 7 Enero 1935
    ...being in effect part of the Constitution, cannot be altered now under pretense of adapting the common law to altered conditions. P. 487. 70 F.2d 558 Certiorari to review the reversal of a judgment for damages in an action for personal injuries, entered on denial of the plaintiff's motion fo......
  • 66 Cal.2d 821, 29342, Jehl v. Southern Pac. Co.
    • United States
    • California Supreme Court of California
    • 2 Junio 1967
    ...46; 23 Cal.L.Rev. 536, 537; 14 So.Cal.L.Rev. 490; see also the comment in 44 Yale L.J. 318, 323--324, on Schiedt v. Dimick (1st Cir. 1934) 70 F.2d 558. [7] Dimick v. Schiedt, supra, 293 U.S. at 484, 55 S.Ct. [8] Dimick v. Schiedt, supra, 293 U.S. at 486, 55 S.Ct. 296. There are several repl......
  • 99 F.2d 830 (5th Cir. 1938), 8822, United States v. Kennesaw Mountain Battlefield Ass'n
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 14 Noviembre 1938
    ...Federal trial courts over verdicts is governed by the decisions of Federal courts, not those of State courts. Schiedt v. Dimick, 1 Cir., 70 F.2d 558; Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243; Brabham v. Mississippi, 5 Cir., 96 F.2d We find ......
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1 books & journal articles
  • Rethinking the additur question in federal courts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Nbr. 16, January 2011
    • 1 Enero 2011
    ...... to practical convenience in doing substantial justice and saving expense.'" (alteration in original) (quoting Schiedt v. Dimick, 70 F.2d 558, 564 (1st Cir. 1934), affd, 293 U.S. 494 (1935))); Freeman, 401 N.E.2d at 111 (viewing legislative endorsement of additur and remittitur rele......