Murray v. Leonard

• Decision Date: 21 May 1898
• Citation: 75 N.W. 272,11 S.D. 22
• Parties: MURRAY v. LEONARD.
• Court: South Dakota Supreme Court

75 N.W. 272

11 S.D. 22

MURRAY v. LEONARD.

Supreme Court of South Dakota

May 21, 1898

Appeal from circuit court, Marshall county; A. W. Campbell, Judge.

Action by Bridget Murray against Azro B. Leonard. From a judgment and an order denying a new trial, defendant appeals. Reversed.

J. H McCoy, for appellant. Byron Abbott and James Wells, for respondent.

CORSON P. J.

This was an action for damages for assault and battery. Verdict for $1,200 damages. On motion for a new trial, the circuit court denied said motion on condition that plaintiff remit $700 of said judgment. The plaintiff entered an order remitting the $700. To this order the defendant excepted, and from the same, and the judgment, the defendant appealed.

The defendant contends that the verdict for $1,200 damages was excessive, and that the trial court should have granted a new trial. The action of the court in directing that $700 should be remitted, or a new trial granted, clearly shows that in the opinion of that court the damages, as found by the jury were excessive. And with this view of the trial court this court fully agrees. The important question presented therefore, is, should the trial court have granted a new trial, instead of making the conditional order? We are of the opinion that the court should have granted a new trial. The trial court is authorized to grant a new trial for "excessive damages, appearing to have been given under the influence of passion or prejudice." Comp. Laws, § 5088, subd. 5. The trial court must have found that the verdict in this case was "given under the influence of passion or prejudice"; otherwise it would not have directed that the large sum of $700 (over one-half the amount of the verdict) should be remitted, or a new trial granted. A party is entitled to a trial of his case by an impartial and unprejudiced jury; and ordinarily, in an action sounding in damages, a defendant is entitled to a jury trial. Unless there is a waiver of such trial in the manner provided by law, the court is not authorized to try the case without a jury. It would seem to logically follow, therefore, that, in an action in which there are no fixed and definite rules governing the measure of damages, the court could not without intrenching upon the powers of the jury, determine the amount a plaintiff should recover; and when, in such case, the trial court is of the opinion that the verdict is for such an excessive amount as to indicate that the verdict was "given under the influence of passion or prejudice," it seems to be the modern practice to grant a new trial, instead of directing a part of the damages to be remitted. There are courts that sanction the practice adopted by the trial court in this case; but in our view the rule adopted in Kansas, Texas, and New York, requiring that in this class of cases a new trial should be granted, is more consistent with our system, and more logical, and should be followed in this state. Mr. Sutherland, in his work on Damages, commenting upon the old rule still in force in many of the states, says: "There is an apparent departure from sound principle in this practice. The court concludes that the jury were influenced by passion or prejudice, or both, because they found such excessive damages, and yet allows their finding, covering the major propositions of the case, upon which damages are consequent, to stand. ...