Simmons v. Fish

• Decision Date: 05 January 1912
• Parties: SIMMONS v. FISH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 563

97 N.E. 102

SIMMONS v. FISH.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1912

Jan. 5 1912.

COUNSEL

J. W. & C. R. Cummings, for plaintiff.

R. P Borden, for defendant.

OPINION

RUGG C.J.

The single question presented by these exceptions is whether the superior court had the power (before the passage of St. 1911, c. 501, expressly conferring it) in setting aside a verdict, returned by a jury for the plaintiff in an action to recover compensation for a personal injury on the ground of inadequacy of damages, to direct that at the new trial damages shall be the only issue, and that the other questions shall be treated as settled in favor of the plaintiff.

There can be no doubt as to the power of the court at common law to set aside a verdict as a whole for insufficient as well as for excessive damages. Sampson v. Smith, 15 Mass. 365-367; Taunton Manufacturing Co. v. Smith, 9 Pick. 11; Clark v. Jenkins, 162 Mass. 397, 38 N.E. 974; Shanahan v. Boston & Northern St. Ry. Co., 193 Mass. 412, 79 N.E. 751; Phillips v. London & South Western Ry. Co., 4 Q. B. D. 406, 5 Q. B. D. 78; Johnston v. Great Western Ry. Co., [1904] 2 K. B. 250-255. It is a constitutional incident of trial by jury, which cannot be taken away by legislative action, that the assistance and protection of the presiding judge shall be available to the litigants in setting aside verdicts not so supported by law and evidence that they ought to stand. Opinion of Justices, 207 Mass. 606, 94 N.E. 846; Capital Traction Co. v. Hof, 174 U.S. 1-13, 19 S.Ct. 580, 43 L.Ed. 873. The ancient common-law doctrine that a verdict of a jury was single and indivisible and must stand or fall as a whole was early modified by the custom of this commonwealth, as is pointed out in Bicknell v. Dorion, 16 Pick. 478, 483, where a verdict was set aside as to one of several defendants. The practice has prevailed for many years in this court of awarding a new trial upon a single point where the error committed in the trial court was of a kind which could be readily separated from the general issues, and applied without injustice to one matter.

In Winn v. Columbian Insurance Co., 12 Pick. 279, a plaintiff, in an action upon a policy of insurance, dissatisfied with the amount of the verdict, was restricted upon a new trial, to which he was held to be entitled, to damages alone.

In Boyd v. Brown, 17 Pick. 453, 461, which was an action for trespass for carrying away a schooner, the verdict was held to be for an excessive amount, and the new trial was confined to damages alone.

Robbins v. Townsend, 20 Pick. 345, was an action to recover for the support of a pauper by the keeper of a house of correction. During the trial an error was committed in admitting evidence of the official character of the plaintiff. The court, in sustaining the exceptions, said: 'There having been a full and legal trial on the merits as to the other parts of the case, and the question of the appointment of the plaintiff as master of the house of correction being entirely disconnected with the other questions raised, and one which in no way could have had any influence upon the finding of the jury upon those questions, the new trial is limited to this particular point. In cases like the present, substantial justice may be done without disturbing the verdict generally, by submitting to a new jury the question, in reference to which, evidence was erroneously admitted.' The money element established by the first trial and that as to the settlement of the pauper were left undisturbed. Sprague v. Bailey, 19 Pick. 436, was an action against a collector of taxes for taking personal property in levying a tax. Error was committed by the trial court touching proof whether the defendant had been duly sworn as collector, and the new trial was confined to that single issue and those necessarily dependent upon it, while other matters were left as settled by the first verdict. In Amherst Bank v. Root, 2 Metc. 522, the only exception which was sustained related to the execution of a bond, and the court confined the new trial to the ascertainment of that fact alone. The only error committed by the trial court in Hubbell v. Bissell, 2 Allen, 196, 201, concerned one of several defendants, and bore upon the single ground of defense of mental incompetency, and the court granted a new trial only upon condition that it should be confined to that single issue, the facts found by the first verdict to stand in other respects. In Seccomb v. Provincial Insurance Co., 4 Allen, 152, there were actions upon policies of marine insurance. In the trial court, after verdict for the plaintiffs, a new trial was granted solely for the purpose of submitting to another jury the question whether, according to the usage of commerce, Smyrna was a port in Europe, in all other respects the plaintiffs being held entitled to retain the benefits of the findings of the verdict in their favor. By reason of the conduct of parties, it was held that a new trial upon all issues was open, but by inference the restriction of the new trial to the single point was approved. Wayland v. Ware, 109 Mass. 248, was an action to recover for the support of a pauper. The only error committed by the trial court related to evidence, whether one Davis was credited to the defendant town as a part of its quota of enlistments in the Civil War. In sustaining the exceptions, the court restricted the new trial to that part of the case which had been affected by this error, and outlined alternative forms of judgment to be thereafter entered dependent upon the finding of that fact at the new trial. Warshauer v. Jones, 117 Mass. 345, was a writ of entry to recover one tract of land consisting of a passageway and a strip of land. Error was committed during the trial, and the court directed a verdict to stand as to the passageway, which was not affected by the error of the trial court, and that the new trial be restricted to the rest of the demaded premises. In Monies v. Lynn, 119 Mass. trial be restricted to the rest of the demanded aside, and a general verdict allowed to stand. See Hawks v. Truesdell, 99 Mass. 557. During the trial upon complicated issues between several parties, in Merchants' Ins. Co. v. Abbott, 131 Mass. 397, 407, error was committed upon one aspect, which the court held to be separable from others, and granted a new trial conditionally as to that alone. In Morrison v. Richardson, 194 Mass. 370, 80 N.E. 468, the plaintiff's exceptions as to the rule of damages laid down by the trial court were sustained, but the new trial was confined to damages alone. In Gorham v. Moor, 197 Mass. 522, 84 N.E. 436, error of the trial court touching the issue of undue influence over a testator was not allowed to affect the verdict as to soundness of mind. Dulligan v. Barber Asphalt Co., 201 Mass. 227, 233, 87 N.E. 567, was an action in two counts, the first to recover for the death, and the second for the conscious suffering, of an employé of the defendant under R. L. c. 106. A mistake of the trial court touching the first count was not permitted to disturb the verdict in favor of the plaintiff upon the second count. See, also, Pratt v. Boston Heel & Leather Co., 134 Mass. 300; Bardwell v. Conway Ins. Co., 118 Mass. 465, 469; Negus v. Simpson, 99 Mass. 388, 395; Dyer v. Rich, 1 Metc. 180, 192; Ryder v. Hathaway, 21 Pick. 304, 306; Boyd v. Brown, 17 Pick. 453; Kent v. Whitney, 9 Allen, 62, 85 Am. Dec. 739; Hunter v. Farren, 127 Mass. 481-485, 34 Ma. Rep. 423; Whipple v. Rich, 180 Mass. 477, 480, 63 N.E. 5; De Forge v. N. Y., N.H. & H. R. R., 178 Mass. 59, 64, 59 N.E. 669, 86 Am. St. Rep. 464; John Hetherington & Sons, Ltd., v. Firth Co., 210 Mass. 8, 95 N.E. 961, Thomson v. Pentecost, 206 Mass. 505, 513, 92 N.E. 1021; Stynes v. Boston Elev. Ry., 206 Mass. 75, 78, 91 N.E. 998, 30 L. R. A. (N. S.) 737; Montgomery Door & Sash Co. v. Atlantic Lumber Co., 206 Mass. 144, 147, 92 N.E. 71--all of which are instances of new trials as to damages alone, sometimes on the exceptions of one party, sometimes on those of another, and sometimes on those of both.

This review of our cases demonstrates that this court continuously from early times has exercised the power of narrowing a new trial to specific points in cases where the error committed at the trial was so limited in character as with justice to both parties to be separable from the other issues determined by the first verdict. It has done this as a part of its inherent judicial authority, and not under any statute. It has exercised the power in a great variety of cases touching divers kinds of issues involved in general verdicts. The guiding principle is that, although a verdict ought not to stand which is tainted with illegality, there ought to be but one fair trial upon any issue, and that parties ought not to be compelled to try anew a question once disposed of by a decision against which no illegality can be shown. Thus the parties and the commonwealth have been saved the expense, annoyance and delay of a retrial of issues once settled by a trial as to which no reversible error appears. Most of these cases show action by this court as an appellate tribunal whose jurisdiction in this regard is broad. But they show also that in reason where a verdict is set aside for any cause for which it may be by a trial court, the new trial may be limited in range.

The superior court is a court of general jurisdiction, and it has the power to set aside verdicts and 'order a new trial for any cause for which a new trial may by law be granted' (R. L. c. 173, § 112), in which are included excessive or insufficient damages. If it is convinced upon a review of the whole case that the jury have settled the issue of liability...