Del Ponte v. Giannessi

• Decision Date: 07 May 1930
• Docket Number: Nos. 6743, 6744.,s. 6743, 6744.
• Citation: 150 A. 254
• Parties: DEL PONTE v. GIANNESSI (two cases).
• Court: Rhode Island Supreme Court

150 A. 254

DEL PONTE

v. GIANNESSI (two cases).

Nos. 6743, 6744.

Supreme Court of Rhode Island.

May 7, 1930.

SWEENEY, J., dissenting.

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

Action by Vito Del Ponte, p. a., against Gaetano Giannessi, and by Michael Del Ponte against the same defendant. Judgments for the plaintiffs, and they filed motions for a new trial for inadequacy of damages. On defendant's exceptions to the granting of new trial.

Exceptions sustained, and cases remitted with directions.

Pettine, Godfrey & Cambio, of Providence, for plaintiffs.

Henshaw, Lindemuth & Baker, of Providence, for defendant.

BARROWS, J.

In these cases plaintiff Vito, a minor, recovered $175 for injuries, and his father $285 for expenses incurred, as a result of defendant's alleged negligent operation of an automobile. Plaintiff Vito's award of damages admittedly was insufficient compensation for his injuries, and plaintiff Michael's was less than the actual expenditures shown by the testimony. Defendant did not file a motion for a new trial.

Each plaintiff filed a motion for a new trial alleging inadequacy of damages and asked that the new trial be restricted to the question of damages. At the hearing thereon the trial justice declined to hear arguments as to whether the testimony warranted a finding of liability, the court saying that the awards were "indefensible" in any event; that each verdict was a compromise "of the most glaring character," insufficient if plaintiffs were entitled to recover anything, unjust if defendant was not liable. Unrestricted new trials were granted. Sayegh v. Davis, 46 R. I. 375, 128 A. 573.

Defendant excepted because of alleged error of law in granting new trials without in any way indicating its attitude toward the finding that defendant was liable. We think the court erred in disregarding the question of liability. The new trials were asked solely because of alleged inadequacy of damages. They were ordered because of erroneous assessments of damages irrespective of inadequacy. With the damages assessed defendant found no fault He was content to be found liable so long as damages Were limited to the amounts of the verdicts.

The court acted upon motions complaining of error prejudicial to plaintiffs. The court was not, and by plaintiffs might not be, asked to review error prejudicial to defendant its duty was not to remedy un-complained of wrong solely to defendant and unasked to direct new trials to redress it. The court pointed out that liability and the damages awarded were inconsistent. Inconsistency alone would not warrant granting plaintiffs' motions for a new trial, Lovett v. Chicago, 35 Ill. App. 570; to do so it must have been harmful to plaintiffs. A plaintiff who has recovered a verdict and seeks to set it aside for inadequacy must satisfy the reviewing court both that he is entitled to a verdict and that the damages are less than a fair interpretation of the evidence demands. Corn Novelty Co., Inc., v. Norwich Union Fire Ins. Soc, 176 App. Div. 261, 162 N. Y. S. 1020.

On a plaintiffs motion, based upon inadequacy of damages, defendant may properly argue that the evidence fails to show any liability of defendant Maki v. St. Luke's Hospital Ass'n, 122 Minn. 445, 142 N. W. 705, because without liability established an award of damages to plaintiff, however small, cannot be inadequate, O'Malley v, Chicago City Ry. Co., 30 Ill. App. 309.

The authorities are numerous that a verdict for plaintiff ought not to be set aside as inadequate unless the reviewing court believes that liability may be treated as established. Olek v. Fern Rock Woolen Mills (C. C. Pa.) 180 F. 117; Reading v. Tex. & Pac. Ry. Co. (C. C. Pa.) 4 F. 134; Garns v. Halpern, 193 Cal. 193, 223 P. 545; Copeland v. Junkin, 198 Iowa, 530, 199 N. W. 363; Maki v. St. Luke's Hospital Ass'n, supra; Lovett v. Chicago, supra; O'Malley v. Chicago City Ry. Co., supra; Sullivan v. Wilson (Mo. App.) 283 S. W. 743; Reeve v. Wilkes-Barre, etc., Co., 9 Kulp (Pa.) 182; Spannuth v. Cleveland, etc., R. Co., 196 Ind. 379, 148 N. E. 410; Snyder v. Portland Ry., etc., Co., 107 Or. 673, 215 P. 887; Gilchrist v. Satterwhite, 7 Tenn. Civ. App. 321; Adams v. Anderson, etc., Co., 124 Wash. 356, 214 P. 835; Hubbard v. Mason City, 64 Iowa, 245, 20 N. W. 172; Scott v. O'Hair, 188 Ill. App. 26; 20 R. C. L. 285, § 67; 46 C. J. pp. 210, 410.

Under our present practice involving the duty of the superior court on a motion for a new trial to indicate its approval or disapproval of a verdict, the court ought not to grant a new trial without regard to what the evidence shows as to liability. If the court does so, it only partially performs its duty. With the statement concerning establishment of liability, because of defendant's failure to file a motion for new trial, in Hill v. Union Ry. Co., 25 R. I. 565, 57 A. 374, we are unable to agree. Examination of briefs filed in that case shows that the argument here made and held sound was there made but without citation of the cases above set down. It is clear, however, that the Hill Case is not authority that a plaintiff in whose favor an inadequate award of damages is said to have been made is entitled to a new trial irrespective of any liability on defendant's part. Before the superior court was warranted in granting new trials to plaintiffs, its approval of the findings of liability was necessary.

Defendant's exception to the action of the trial court in each case is sustained, but defendant is not entitled to have judgments entered on the verdicts as rendered. The trial court should pass upon the inadequacy of damages only if the jury's finding of liability meets with its approval.

The cases are remitted to the superior court for further proceedings with direction to pass upon each plaintiff's motion for new trial in accordance with the views here expressed and to deny same unless the court approves of the finding that defendant was liable.

SWEENEY, J. (dissenting).

I am obliged to dissent from the foregoing opinion because I am convinced that the trial justice performed his full duty when he decided the motion for a new trial upon the only ground stated therein.

Our statute, section 5120, G. L. 1923, provides that a person entitled to except in a case tried by a jury may file a motion for a new trial for any reason for which a new trial is usually granted at common law, other than error of law occurring at the trial. "Such motion shall state the grounds relied upon in its support" The jury found defendant guilty in manner and form as each plaintiff had declared against him and assessed damages for each plaintiff in a certain sum. Each plaintiff then duly filed a motion for a new trial on the sole ground that damages awarded were inadequate and prayed for a new trial on the question of damages alone.

In granting the motions the trial justice wrote: "The question of liability need not be discussed for the damages awarded cannot be supported in either case." To this decision defendant filed a bill of exceptions alleging four grounds: First, that the verdict was against the law; second, that the verdict was against the evidence. These grounds cannot be considered as defendant filed no motion for a new trial. Labonte v. Alvernaz, 47 R. I. 226, 132 A. 732; Bliss v. Brucker (R. I.) 149 A. 595.

The third ground for exception alleged that the decision granting plaintiff's motion for a new trial was against the law, and the fourth ground alleged that said decision was against the evidence. On these grounds defendant claims that the trial justice erred in not considering the question whether the verdicts were against the weight of the evidence on the question of liability when deciding the motions for new trials on the ground of inadequate damages.

Plaintiffs, having received favorable verdicts, filed their motions for new trials on the only ground open to them, namely, inadequate damages. The right of the plaintiffs to allege this ground as sole reason for a new trial was settled in Clark v. New...