Decker v. Fair

• Court: Michigan Supreme Court
• Writing for the Court: MOORE
• Citation: Decker v. Fair, 222 Mich. 507, 193 N.W. 288 (Mich. 1923)
• Decision Date: 27 April 1923
• Docket Number: No. 38.,38.
• Parties: DECKER v. FAIR.

222 Mich. 507

193 N.W. 288

DECKER

v.FAIR.

No. 38.

Supreme Court of Michigan.

April 27, 1923.

Error to Circuit Court, Shiawassee County; Joseph H. Collins, Judge.

Action by John Decker against Cleland Fair. Verdict for plaintiff, and to review an order granting a new trial, unless plaintiff filed remittitur within a specified period, the plaintiff brings error. Remanded with directions.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Charles E. Misner, of Grand Haven, for appellant.

Byron P. Hicks, of Owosso (Albert L. Chandler, of Owosso, of counsel), for appellee.

MOORE, J.

This is an action brought by plaintiff against the defendant for damages for alienating the affections of the wife of plaintiff. The case was tried before a jury, who returned a verdict for $3,500. Afterwards defendant made a motion for a new trial, and the judge filed an order granting a new trial, unless the plaintiff, within 20 days, would remit all in excess of $1,000. Plaintiff did not remit, and seeks to have this court review the case by writ of error.

After the case reached this court, the defendant moved to dismiss the writ of error, claiming this court could not review the action of the trial court when it granted a new trial. The motion was held until now. The contention of the appellant would doubtless be true if the order made had not been a conditional one. We think when an order is made conditional, as in the instant case, writ of error may be brought. Carton v. Day, 157 Mich. 43, 121 N. W. 295.

The plaintiff contends:

‘1. The lower court has no discretion to reduce a verdict in a tort action, unless the record discloses the jury abused its authority, or was unduly influenced, or the verdict is such as to suggest at first blush, passion, prejudice or corruption on its part.

‘2. The verdict is not excessive, and in such actions it is for the jury to fix the amount under proper instructions by the court, which has no legal responsibility to determine the amount, and should not interfere with the verdict in the absence of misconduct, passion, or prejudice.

‘3. It would be a miscarriage of justice to permit the order of the circuit court to stand, because a court must find something tangible than a difference of opinion as to amount, before it should substitute its opinion for that of jury; in other words, its action must be a judicial and not an arbitrary one.’

In support of these propositions, counsel quote at length from Fishleigh v. Detroit United Ry. Co., 205 Mich. 145, 171 N. W. 549,Wilson v. Detroit United Railway, 208 Mich. 411, 175 N. W. 172, and In re Klink's Estate, 210 Mich. 614, 178 N. W. 14, and cites many other authorities.

In each of these cases above mentioned the question involved was as to the duty of the Supreme Court in setting aside the verdict of a jury, and the language used in the various opinions must be interpreted with that question in mind.

So far as the first mentioned of these cases is concerned, so far as it is applicable to the instant case, it is against the contention of counsel for the appellant, we quote:

‘There is no doubt the trial...