Placella v. Robbio

• Decision Date: 18 January 1926
• Docket Number: No. 6119.,6119.
• Citation: 131 A. 647
• Parties: PLACELLA et al. v. ROBBIO et al.
• Court: Rhode Island Supreme Court

131 A. 647

PLACELLA et al.

v. ROBBIO et al.

No. 6119.

Supreme Court of Rhode Island.

Jan. 18, 1926.

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action by Tiziano Placella and others against Antonio Robbio and others, with counterclaim by defendants. Verdict for plaintiffs, and plaintiffs except to ordering of new trial unless remittitur be filed. Exceptions overruled, and case remitted to superior court for new trial, unless plaintiffs file remittitur.

Edward M. Sullivan and John J. Sullivan, both of Providence, for plaintiffs.

Peter W. McKiernan, of Providence, for defendants.

BARROWS, J. Action joining counts in assumpsit and covenant. Suit was brought by a father and son, building contractors, for a balance of $4,000 due on the covenant and for the reasonable worth of "extras." Defendants sought to recoup certain lost rentals, and these, with the extras, were the only items on which the testimony conflicted. There was no dispute as to the balance due on the covenant and the amount to which defendants were entitled for payments made on behalf of plaintiffs. The trial resulted in a general verdict for plaintiffs of $2,234.87. They had claimed a balance of $2,877.35. Defendants moved for a new trial, averring that the verdict was against the law, against the evidence, and that the amount of damages awarded by said verdict was excessive.

The trial court in its rescript said:

"As a matter of fact, the defendants' only complaint is that the damages are excessive."

After a careful consideration of the evidence relating to the 14 disputed items in plaintiffs' bill of particulars and acceptance of plaintiffs' evidence as against defendants' on the amount of lost rentals, the trial court granted a new trial, unless plaintiffs should remit all of the verdict in excess of $1,897.18.

Plaintiffs are before us on exceptions to the ordering of a new trial, unless a remittitur be filed. They assert that the court has not held the verdict to be against the evidence; that it only said that in its opinion the damages were excessive, and not that the damages awarded by the verdict were excessive; that "excessive damages" so found by the court is not a ground for new trial, because it is an unwarranted substitution of the court's judgment on facts for that of the jury. The argument misinterprets what the trial court did, and misconceives the duty of the superior court in acting upon a motion for a new trial. That the court did not discuss the question as to whether the verdict was against the evidence in general was clear, because some liability was conceded by defendants. The amount of liability found by the verdict, however, was held by the trial court to be partly contrary to the evidence. The lower court said, just prior to its summary of its figures fixing the damages:

"The account between these parties, therefore, as supported by the evidence * * * may be summarized as follows."

In the light thereof, to claim that the court conceded that the verdict was not against the evidence, and then eliminated the jury, and substituted its personal views of the evidence as to amount of liability, does not correctly interpret the rescript. What the court actually did was to use his more experienced judgment in ascertaining whether the jury was warranted by a fair preponderance of testimony in arriving at its verdict.

It is not the function of the trial justice to state the law and keep silent after the jury's finding of facts. The duty of the superior court in passing upon motions for a new trial has been carefully explained in McMahon v. Rhode Island Co., 32 R. I. 237, 78 A. 1012, Ann. Cas. 1912D, 1223. It is to weigh the evidence, using the judge's experience, his observation of the witnesses, and incidents of the trial, and in the light thereof to say whether the jury's verdict is supported by a fair preponderance of the evidence. The trial court in this case did so, and we shall later briefly consider the evidence.

The trial court has power to grant a new trial "for any reason for which a new trial is usually granted at common law." Gen. Laws 1923, c. 348, § 12. The history of this statute is carefully traced in Clark v. N. Y., N. H. & H. R. R. Co., 33 R. I. 83, 80 A. 406, Ann. Cas. 1913B, 356. Plaintiffs contend that the ground for a new trial, commonly referred to as "excessive damages," relates only to tort cases where damages are unliquidated, and that the statute has no application to cases arising ex contractu where there is a general verdict; that, when such a verdict is ordered remitted in part, there can be no certainty that the jury has not already deducted some of the same items deducted by the court.

The Indiana statute, setting forth the grounds for a motion for new trial and cases holding that "excessive damages" thereunder apply only to tort cases, is not helpful to plaintiffs, because too large or too small damages in contract cases are expressly mentioned in the same statute as a ground for a new trial. Rohan et al v. Gehring, 80 Ind. App. 46, 137 N. E. 288, following Lake Erie & Western Ry. v. Acres, 108 Ind. 548, 9 N. E. 453.

The trial court's right at common law to grant a full new trial because the verdict is not supported by the evidence is beyond dispute. When the verdict is partly supported, viz., on liability but not on damages, the new trial may be granted on the question of damages only, or plaintiff may remit the excess, if fixed. Clark v. N. Y., N. H. & H. R. R. Co., supra. Our statute describes the procedure where a new trial is granted because the verdict...