Moreland v. Vomilas

• Decision Date: 31 January 1929
• Citation: 144 A. 652
• Parties: MORELAND v. VOMILAS.
• Court: Maine Supreme Court

144 A. 652

MORELAND

v. VOMILAS.

Supreme Judicial Court of Maine.

Jan. 31, 1929.

Exceptions from Superior Court, Cumberland County.

Action by Bertha M. Moreland against Harry Vomilas. From judgment ordering a remittitur, exceptions were taken by plaintiff. Exception sustained. Judgment on verdict.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, and PATTANGALL, JJ.

Berman & Berman, of Portland, for plaintiff.

Francis W. Sullivan, of Portland, for defendant.

BARNES, J. In the superior court for Cumberland county, at the April term, 1928, trial was had on a suit for injuries to the person, and a jury verdict for $2,500 returned.

At the same term, on the second day after the filing of the verdict, defendant presented a motion to the court praying that he set aside the verdict and grant a new trial.

The motion was argued during the same term and decision reserved.

The said April term was finally adjourned on the 19th of May; but at that time no decision on the motion for a new trial had been rendered.

The superior court for Cumberland county, by fiat of the Legislature, shall hold terms annually in April and in May, as well as in seven other months.

On account of the abundance of litigation awaiting its day in court at the said April term, the work of that term progressed for 40 days, extending through the first two-thirds of the month of May.

And the May term of the court began on the first Tuesday of May, as provided by law.

During the May term judgment in this case was recorded, as follows: "Remittitur for all in excess of Fifteen Hundred Dollars ($1,500.00) ordered on June 11, 1928, being the thirty-fifth day of this Term."

To this judgment exceptions were seasonably taken and allowed.

The motion for new trial was on grounds specified, namely, that the verdict was against the law and the charge of the court; against the evidence, and the weight of evidence, and because the damages were excessive.

If the judgment of the court, as recorded, is a lawful judgment, the plaintiff is constrained to accept a less sum in damages than was awarded by the jury, or to undergo the burden and expense of a new trial.

Her exceptions present two questions:

(1) Has the superior court for Cumberland county authority to order remittitur damnum or briefly remittitur, remission of the excess in a verdict over and above what the verdict in law, under the evidence, would be?

(2) Since no decision was rendered during the April term, nor in the vacation between the April term and the May term following, had the court, after the adjournment of the April term, and after the passage of many days while continuously busied in the work of the May term, jurisdiction over the case at bar, and authority to act therein?

Taking the questions in their order, we first consider whether the superior court had authority to order remittitur.

By statute, the court could, at the proper time, if convinced that it was just, order a new trial.

Could it go further and order a remittitur, and, if no remission, a new trial?

Plaintiff contends it had not such power.

The superior court is a statutory court, and at its establishment it was endued with certain powers by its creator, the Legislature, some of which are common-law powers.

In section 10 of chapter 151, P. L. of 1868, the act establishing the superior court for Cumberland county, language capable of broad interpretation is used relative to its jurisdiction and authority.

That section reads, in part: "The provisions of law relative to the jurisdiction of the supreme judicial court in said county over parties, the arrest of persons, attachment of property, the time and mode of service of precepts, proceedings in court, the taxation of costs, the rendition of judgments, the issuing, service and return of executions, and all other subjects, are hereby made applicable and extended to said superior court in all respects, except as far as they are modified by the provisions of this act; and said superior court is hereby clothed as fully as the supreme judicial court with all the powers necessary for the performance of all its duties."

"Proceedings in court" are nowhere else in the act mentioned by way of definition or limitation of the judge's authority to rule on a motion for a new trial, or regarding the time within which he should pronounce his decision, and the grant to the superior court of jurisdiction over "all other subjects," as comprehensive as in the Supreme Judicial Court, is language subject to broad interpretation, as before suggested.

Trial courts, at common law, in the exercise of their discretion, may grant a new trial, when upon motion therefor it appears that the cause of new trial does not arise out of any illegal or erroneous act of the court.

And at an early day in the experience of Maine courts it was so ruled. Hawks v. Baker, 6 Greenl. (6 Me.) 72, 19 Am. Dec. 191; McLellan v. Crofton, 6 Greenl. (6 Me.) 307; Bishop v. Williamson, 11 Me. 495; State v. Call, 14 Me. 421; Simpson v. Simpson, 119 Me. 14, 109 A. 254.

"It can not be claimed as a matter of right. And in such cases, it may be done upon such terms or conditions imposed, as the Court may consider reasonable. And such appears to have been the practice." Tuttle v. Gates, 24 Me. 395.

In proper cases remittitur has long been approved, it being considered that an order on plaintiff to remit a part of damages found to be excessive is a condition which may be imposed by the trial judge to obviate the necessity for a new trial. Smith v. Putney, 18 Me. 87; Jewell V. Gage, 42 Me. 247.

It is a well-settled practice in this state, and it is our practice for the law court, to hold that damages are to be found by the jury, and to return the cause in such case for new trial for the assessment of damages only. McKay v. Dredging Co., 93 Me. 201, 44 A. 614; L. R. A. 1915E, 250.

The authorities generally uphold the power of the trial court, in its discretion, to grant a new trial of a part only of the issues in cases where such power may be exercised by the appellate court; courts frequently stating the rule as to the power to grant a new trial in general terms, implying that it is applicable to either the trial or appellate court. Re Everts, 163 Cal. 449, 125 P. 1058; Smathers & Co. v. Toxaway Hotel Co., 107 N. C. 469, 83 S. E. 844; Seccomb v. Ins. Co., 4 Allen (Mass.) 152; Woodward v. Horst, 10 Iowa, 120.

When the only issue remaining is the amount of damages, the principle declared in McKay v. Dredging Co., supra, is upheld with convincing logic in Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912D, 588; Lisbon v. Lyman, 49 N. H. 553; Zaleski v. Clark, 45 Conn. 397; San Diego Land & Town Co. v. Neale, 78 Cal. 63, 20 P. 372, 3 L. R. A. 83; Topp v. Standard Metal Co., 47 Ind. App. 483, 94 N. E. 891; Burnett v. Mills Co., 152 N. C. 35, 67 S. E. 30; Goss v. Goss, 102 Minn. 346, 113 N. W. 690; Lumber Co. v. Branch, 158 N. C. 251, 73 S. E. 164; Glass Co. v. R. Co., 76 N. J. Law, 9, 69 A. 491; Cramer v. Barmon, 193 Mo. 327, 91 S. W. 1038; Austin v. Langlois, 83 Vt. 104, 74 A. 489; Clark v. R. Co., 33 R. I. 83, 80 A. 406, Ann. Cas. 1913B, 356.

The case last cited seems especially in point, since it upholds the authority of a superior court, under powers granted by Constitution and statute in substance the same as ours.

But when the amount properly recoverable is not definitely ascertainable by computation, as may be the case when to be awarded for injuries negligently inflicted on the person of the plaintiff a conflict has arisen in the courts of the land.

In the case at bar it is assumed that the judge concluded the damages awarded were excessive because the jury was influenced by prejudice or some other improper motive, and that he reduced the verdict to as small an amount as any other jury on the same evidence would probably assess in plaintiff's favor, or as the jury which heard the case, had it functioned as by law required, would probably have assessed the same.

The discretion of the trial court, as a determinant de novo, in fixing the amount of money constituting a fair equivalent for the wrongs done to plaintiff, was not made the basis for the judgment complained of, but his discretion respecting the amount which the jury, had they viewed the case properly, would have awarded plaintiff, or the amount which another jury would probably award, resolving reasonable doubts in that regard against the party favored with the option, was made the basis.

Under such assumption the court, in Heimlich v. Tabor, 123 Wis. 565, 102 N. W. 10, 68 L. R. A. 669, has said: "The practice of treating fatally defective verdicts—the right to recovery being unquestioned—so as not to prejudicially invade the rights of either party and yet terminate the litigation without the expense of another trial, is in the interests of public and private justice.

"It is a great boon to the parties directly interested, and to the public as well, upon whom in a great measure the burden of judicial administration rests. * * * It has become the judicial custom in case of a fatally excessive verdict where the right to recover is clear, whether the error is attributable to perversity or not, and whether the defendant does or does not consent, to permit the plaintiff to terminate the controversy without the expense of a new trial by consenting to take judgment for an amount sufficiently under that named by the jury to cure such error in the judgment of the Court; * * * and also to permit the defendant in such a situation to terminate the litigation, whether plaintiff is willing or not, by consenting to judgment for a sum sufficiently less than the verdict to, in the judgment of the Court, cure the error. * * * That rule with a legitimate basis therefor has been evolved in the course of years of judicial administration as a most valuable means of 'promptly and without delay' terminating disputes between parties to the...