Dimick v. Schiedt, No. 78

CourtUnited States Supreme Court
Writing for the CourtSUTHERLAND
Citation79 L.Ed. 603,293 U.S. 474,55 S.Ct. 296,95 A.L.R. 1150
Docket NumberNo. 78
Decision Date07 January 1935
PartiesDIMICK v. SCHIEDT

293 U.S. 474
55 S.Ct. 296
79 L.Ed. 603
DIMICK

v.

SCHIEDT.

No. 78.
Argued Nov. 9, 1934.
Decided Jan. 7, 1935.

Page 475

Messrs. David H. Fulton and Leo M. Harlow, both of Boston, Mass., for petitioner.

Mr. John G. Palfrey, of Boston, Mass., for respondent.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is an action brought by respondent (plaintiff) against petitioner (defendant) in the federal District Court for the District of Massachusetts to recover damages for a personal injury resulting from the alleged negligent operation of an automobile on a public highway in Massachusetts. The jury returned a verdict in favor of respondent for the sum of $500. Respondent moved for a new trial on the grounds that the verdict was contrary to the weight of the evidence, that it was a compromise verdict, and that the damages allowed were inadequate. The trial court ordered a new trial upon the last-named

Page 476

ground, unless petitioner would consent to an increase of the damages to the sum of $1,500. Respondent's consent was neither required nor given. Petitioner, however, consented to the increase, and, in accordance with the order of the court, a denial of the motion for new trial automatically followed. Respondent appealed to the Circuit Court of Appeals, where the judgment was reversed; the court holding that the conditional order violated the Seventh Amendment of the Federal Constitution in respect of the right of trial by jury. 70 F.(2d) 558, 562. That court recognized the doctrine, frequently stated by this court, that in the case of an excessive verdict it is within the power of the trial court to grant defendant's motion for a new trial unless plaintiff remit the amount deemed to be excessive, but held that the trial court was without power to condition the allowance of plaintiff's motion for a new trial upon the refusal of defendant to consent to an increase in the amount of damages.

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.'

Section 269 of the Judicial Code, as amended, U.S.C. title 28, § 391 (28 USCA § 391), confers upon all federal courts 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 order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. Thompson v. Utah, 170 U.S. 343, 350, 18 S.Ct. 620, 42 L.Ed. 1061; Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. A careful examination of the English reports prior to that time fails to disclose any

Page 477

authoritative decision sustaining the power of an English court to increase, either absolutely or conditionally, the amount fixed by the verdict of a jury in an action at law, with certain exceptions.

1. In actions for mayhem, there are numerous ancient cases to be found in the year books, and occasional cases at a somewhat later period, in which the right of the court to increase damages awarded plaintiff, super visum vulneris, is recognized. We deem it unnecessary to catalogue or review these cases. Many of them are referred to in 2 Bacon's Abridgment (7th Ed.) 611, and Sayer's Law of Damages (1770) p. 173 et seq. The last case called to our attention or that we have been able to find that recognized the rule is that of Brown v. Seymour (1742) 1 Wils. 5, where the court, while conceding its power to increase damages upon view of the party maimed, refused to exercise it, holding the damages awarded were sufficient. We have found no case where the power was exercised affirmatively since Burton v. Baynes (1733), reported in Barne's Practice Cases, 153, where the court, upon view of the injury, increased the damages from 11, 14 s., to 50. The power of the trial court to increase damages in such cases was seldom exercised; and it seems quite clear, from an examination of the decisions and of the English Abridgments, that the generally approved practice confined its exercise to the court sitting en banc. Moreover, the application for the increase was made by the plaintiff, considered upon a view of his wound, and, when favorably acted upon, granted absolutely and not as a condition upon which to base a denial of a new trial. Indeed, the practice of granting new trials in such cases did not come into operation until a later date. In any event, the rule was obsolete in England at the time of the adoption of the Constitution; and we are unable to find that it ever was acted upon or accepted in the colonies, or by any of the federal or state courts since the adoption of the Constitu-

Page 478

tion. It was expressly rejected in an early case in South Carolina. McCoy v. Lemon, 11 Rich. 165, 70 Am.Dec. 246. There the plaintiff, as a result of an altercation with the defendant, lost an eye and the use of one thumb. The jury returned a verdict for $30. The trial court, although conceding the inadequacy of the damages, held that no court possessed the power to bring about an increase or decrease of the amount found by a jury in any other way than by granting a new trial. The Court of Appeals sustained the trial court. 'Not a single case,' the appellate court said, 'has been found in any book of American Reports in support of the present motion, notwithstanding the great research displayed by counsel. Neither has there been for a period of more than a century any recognition of the rule by any adjudged case in England to which we have been able to procure access.' After pointing out the jealous regard of the American people, as evidenced by constitutions and legislation, for the right of jury trial, the court said that the judgment of the jury had been incorporated as an indispensable element in the judicial administration of the country; that in all cases sounding in damages these damages must be assessed by the jury and not by the court independently thereof; and that, where the verdict was excessive or trifling, the remedy was to submit the case to the judgment of another jury. In Mayne's Treatise on Damages (9th Ed.) the first edition of which appeared in 1856, after referring to the long current of English decisions in respect of the power of the court to increase damages in mayhem cases, the author (page 571) said he was not aware of an instance in which such a jurisdiction had been exercised in modern times. And see Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 252, 11 S.Ct. 1000, 35 L.Ed. 734.

2. The power of the court to increase or diminish damages assessed upon a writ of inquiry was likewise upheld; but this upon the ground that the justices might themselves have awarded damages without the writ, and the

Page 479

inquisition, therefore, was nothing more than an inquest for their information. Sayer's Law of Damages, 194; Beardmore v. Carrington, 2 Wils. 244, 248; Brooke's New Cases, March's Translation, 56, 57; 2 Bacon's Abridgement (7th Ed.) 612. But even this rule seems long since to have fallen into disuse; the more modern practice being to award a new writ of inquiry in all cases in which the court would award a new trial. Mayne's Treatise on Damages, 572, 573, citing Chitty's Practice (14th Ed.) p. 1326.

3. So it was held in some of the old cases that, where the amount of plaintiff's demand was certain, as, for example, in an action of debt, the court had authority to increase or abridge the verdict of the jury. Mayne's Treatise on Damages, 571; Sayer's Law of Damages, 177.

In Beardmore v. Carrington, supra, decided in 1764, the court reviewed the subject and reached the conclusion that the English courts were without power to either increase or abridge damages in any action for a personal tort, unless in the exceptional cases just noted. The decision is most instructive, as a brief quotation will show (the italics are in the original):

'It is clear,' the court said at page 248 of 2 Wils., 'that the practice of granting new trials in modern, and that courts anciently never exercised this power, but in some particular cases they corrected the damages from evidence laid before them. There is great difference between cases of damages which (may) be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal; there is also a difference between a principal verdict of a jury, and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the court, and which they might have assessed

Page 480

themselves without any inquest at all; only in the case of maihem, courts have in all ages interposed in that single instance only; as to the case of the writ of inquiry in the year-book of H.4, we doubt whether what is said by the court in that case be right, That they would abridge the damages unless the plaintiff would release part thereof, because there is not one case to be found in the year-books wherever the court abridged the damages after a principal verdict, and this is clear down to the time of Palmer's Rep. 314. much less have they interposed in increasing damages, except in the case of maihem. * * *'

Sayer, writing between 1765 and 1770 (Sayer's Law of Damages, 173) says that the power of increasing or abridging damages which have been assessed by the jury 'has not for many years been exercised by courts in any action except in an action for a corporal hurt'; by which he means, as appears...

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654 practice notes
  • Colgrove v. Battin 8212 1442, No. 71
    • United States
    • United States Supreme Court
    • June 21, 1973
    ...the right.' American Publishing Co. v. Fisher, 166 U.S. 464, 468, 17 S.Ct. 618, 619, 41 L.Ed. 1079 (1897). See also Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899). Now, however, my Brethren mount......
  • Rogers v. Loether, No. 71-1145.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 29, 1972
    ...v. Thomas, 18 How. 253, 262 59 U.S. 253, 15 L.Ed. 368; In re Wood, 210 U.S. 246, 258 28 S.Ct. 621, 52 L.Ed. 1046; Dimick v. Schiedt, 293 U.S. 474, 476 55 S.Ct. 296, 79 L.Ed. 603; Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 , 55 S.Ct. 890, 79 L.Ed. 1636. Thus it has no application......
  • Solomon Dehydrating Company v. Guyton, No. 16584.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 31, 1961
    ...decided the Seventh Amendment issue. See Southern Ry. Co. v. Bennett, 233 U.S. 80, 87, 34 S. Ct. 566, 58 L.Ed. 860; Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Affolder v. New York, C. & S......
  • U.S. v. Standefer, No. 78-1909
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 11, 1979
    ...analogy to a different case if the result will be to weaken or subvert what it conceives to be" sound legal precepts. Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 300, 79 L.Ed. 603 What divided the Bryan court and what divides the court here is the weight to be placed on competing pr......
  • Request a trial to view additional results
650 cases
  • Colgrove v. Battin 8212 1442, No. 71
    • United States
    • United States Supreme Court
    • June 21, 1973
    ...the right.' American Publishing Co. v. Fisher, 166 U.S. 464, 468, 17 S.Ct. 618, 619, 41 L.Ed. 1079 (1897). See also Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899). Now, however, my Brethren mount......
  • Rogers v. Loether, No. 71-1145.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 29, 1972
    ...v. Thomas, 18 How. 253, 262 59 U.S. 253, 15 L.Ed. 368; In re Wood, 210 U.S. 246, 258 28 S.Ct. 621, 52 L.Ed. 1046; Dimick v. Schiedt, 293 U.S. 474, 476 55 S.Ct. 296, 79 L.Ed. 603; Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 , 55 S.Ct. 890, 79 L.Ed. 1636. Thus it has no application......
  • Solomon Dehydrating Company v. Guyton, No. 16584.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 31, 1961
    ...decided the Seventh Amendment issue. See Southern Ry. Co. v. Bennett, 233 U.S. 80, 87, 34 S. Ct. 566, 58 L.Ed. 860; Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Affolder v. New York, C. & S......
  • U.S. v. Standefer, No. 78-1909
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 11, 1979
    ...analogy to a different case if the result will be to weaken or subvert what it conceives to be" sound legal precepts. Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 300, 79 L.Ed. 603 What divided the Bryan court and what divides the court here is the weight to be placed on competing pr......
  • Request a trial to view additional results
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