Fisch v. Manger ( 1957 )

Heher, J.

(concurring in result). The right of trial by jury secured by Article I, paragraph 9 of the 1947 State Constitution, as under like guaranties of the 1844 Constitution, Article I, paragraph 7, and the 1776 Constitution, Article XXII, “is the right as it existed at common law and remained on July 2, 1776,” not as enlarged by statute, as if “* * * each constitutional provision speaks anew as of the time of the adoption of the instrument of which it is a part * * *.” Town of Montclair v. Stanoyevich, 6 N. J. 479 (1951). See Board of Health of Weehawken Tp. v. New York Central R. Co., 10 N. J. 294 (1952). The right “* * * is not to be impaired or diminished, but is to remain as it existed at .common law, and according to the practice of the courts anterior to the establishment of the fundamental law.” State v. Doty, 32 N. J. L. 403 (Sup. Ct. 1868), Beasley, C. J. See also Howe v. Treasurer of Plainfield, 37 N. J. L. 145 (Sup. Ct. 1874). The jurors “compose the appropriate tribunal for the determination of controverted questions of fact * * *.” Kohl v. State, 59 N. J. L. 445 (E. & A. 1896). And see State v. Knight, 96 N. J. L. 461 (E. & A. 1921). Trial by jury as the means of determining “questions of fact” is of great antiquity, importing a jury of 12 men, impartially selected, whose verdict was required to be by the concurrence of all. Brown v. State of New Jersey, 62 N. J. L. 666 (E. & A. 1899), affirmed 175 U. S. 172, 20 S. Ct. 77, 44 L. Ed. 119 (1899). The constitutional requirement that “the right to a trial by jury shall remain inviolate” guarantees “the opportunity to submit common law rights to a tribunal that shall possess the attributes of the historical jury as it existed at the time of the adoption of the organic law.” Clayton v. Clark, 55 N. J. L. 539 (Sup. Ct. 1893).

And the constitutional right of trial by jury controls the exercise of judicial power at the trial level to set aside a verdict as contrary to the weight of the evidence and for appellate relief to the same end; the court “may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury,” but if the verdict be “so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality,” it transcends the constitutional province of the jury and is remediable as an excess of power; the court may not set aside a verdict merely because, in its opinion, the jury upon the evidence might well have found otherwise; and this conception of the weight of the evidence applies to civil and criminal cases. Hager v. Weber, 7 N. J. 201 (1951).

As is shown by Justice Sutherland’s analysis of the case history in Dimick v. Schiedt, 293 U. S. 474, 55 S. Ct. 296, 79 L. Ed. 603 (1935), there was no power in the English courts at the time of the adoption of the New Jersey Constitution of 1776 to increase, either absolutely or conditionally, the damages fixed by a jury in a case such as this. The power to increase the award had been exercised on occasion (a) in actions for mayhem, upon view of the party maimed; (b) where damages had been assessed upon a writ of inquiry, and then upon the ground that the justices might themselves have awarded damages without the writ; and (c) in some of the old cases where the amount of the plaintiff’s demand was certain, as, for example, in an action of debt.

In Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Repr. 790, decided in 1764, the holding was that the English courts were without power either to increase or reduce damages in any action for a personal tort, unless in the exceptional cases noted ante. The practice of granting new trials was there termed “modern,” a power courts “anciently never exercised,” although “in some particular cases they corrected the damages from evidence laid before them.” The court continued:

“There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal; there is also a difference between a principal verdict of a jury, and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the Court, and which they might have assessed themselves without any inquest at all; only in the case of maihem, Courts have in all ages interposed in that single instance only; as to the case of the writ of inquiry in the Year-Book of H.4, we doubt whether what is said by the Court in that case be right, that they would abridge the damages unless the plaintiff would release part thereof, because there is not one case to be found in the Year-Books where ever the Court abridged the damages after a principal verdict, and this is clear down to the time of [Hawkim v. Soiet] Palmer’s Rep. 314, [81 Eng. Repr., 1099] much less have they interposed in increasing damages, except in the case of maihem; * *

And in Mayne’s Treatise on Damages (9th ed.), 571, the first edition of which was published in 1856, it is said that “in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.” The author continues, p. 580:

“When an excessive verdict is given, it is usual for the judge to suggest to counsel to agree on a sum, to prevent the necessity of a new trial. In the absence of agreement the Court has no power to reduce the damages to a reasonable sum instead of ordering a new trial. It would seem also from what was said in the case in which this was recently decided, that where the damages are too small, the Court cannot with the defendant’s consent increase them, if the plaintiff asks for a new trial.”

In Watt v. Watt (1905), A. C. 115, 6 B. B. C. 1, 2 Ann. Cas. 672, the House of Lords said the idea that the court could with the consent of the plaintiff reduce the amount of the damages probably arose from the fact that in the old cases the courts had “adopted the somewhat unconstitutional proceeding of refusing to give the plaintiff judgment unless he would consent to reduce his claim to what ought to be considered reasonable,” an indirect method implying the need for the plaintiff’s assent; and that since the defendant was not likely to refuse his assent to a proceeding intended for his benefit, the theory of the cases seems to have been that the right of the court to interfere with the verdict depended upon the consent of both parties; and the contrary hypothesis here contended for was utterly repudiated as alien to the common law and sound English practice.

The Earl of Halsbury, L. C. there affirmed that the Court of Appeal “has no jurisdiction to fix the amount of damages without the consent of both parties”; he attributed the “confusion” in this regard to the practice upon demurrer or default, where the court may have the sheriff assess the damages, the usual course, or “* * * decide that question for itself — probably because that question is often a question of law, where the damages are fixed by law * * and he noted the “* * * distinction between trial by jury and mere inquisition or inquiry by a jury to assess damages — that, in the latter case the inquisition was only to inform the mind of the court and it was at their discretion whether they would award judgment for the amount found by the jury, where as upon a trial they had no jurisdiction to interfere as to the amount of damages in cases of tort,” citing Reeves’ History of the Common Law, and that the “theory of all the cases seems to me to be that the right of the court to interfere with a jury’s verdict was only to be by the assent of both parties.”

And Lord Robertson declared the contrary view “is on principle indefensible.”

In the later case of Barber & Co. v. Deutsche Bank (1919), A. C. 304, H. L., Lord Phillimore affirmed the true principle to be this:

“Where damages are at large and the Court of Appeal is of opinion that the sum awarded is so unreasonable as to show that the jury has not approached the subject in a proper judicial temper, has admitted considerations which it ought not to have admitted, or rejected or neglected considerations which it ought to have applied, it is the right of the party aggrieved to have a new trial. He is not to be put off by the Court saying that it will form its opinion as to the proper sum to be awarded, and reduce or enlarge the damages accordingly. He is entitled to an assessment by a jury which acts properly. He is not to be put off by a composite decisión, or I might describe it as a resultant of two imperfect forces — an assessment partly made by a jury which has acted improperly and partly by a tribunal which has no power to assess.”

And so, in Dimick v. Schiedt, supra, Justice Sutherland concluded, and with unquestionable authority, that “while there was some practice to the contrary in respect of decreasing damages, the established practice and the rule of the common law, as it existed in England at the time of the adoption of the Constitution, forbade the court to increase the amount of damages awarded by a jury in actions such as that here under consideration.” He observed that “this court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent [involving remittitur] be not extended by mere analogy to a different ease if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land”; and that “the power to conditionally increase the verdict of a jury does not follow as a necessary corollary from the power to conditionally decrease it,” since in the case of a conditional remittitur “a jury. has already awarded a sum in excess of that fixed by the court as a basis for a remittitur, which at least finds some support in the early English practice, while in the second case, no jury has ever passed on the increased amount, and the practice has no precedent according to the rules of the common law.”

The “controlling distinction between the power of the court and that of the jury,” said Justice Sutherland, “is that the former is the power to determine the law and the latter to determine the facts,” and while the remittitur practice in the case of an excessive verdict “is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess, — in the sense that it has been found by the jury, — and that the remittitur has the effect of merely lopping off an excrescence,” yet where an inadequate verdict is increased by the court there is a “bald addition of something which in no sense can be said to be included in the verdict,” and if that be done with the consent of the defendant alone, the plaintiff is compelled to forego his “constitutional right to the verdict of a jury and accept 'an assessement partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.’ ”

It was there pointed out that while the remittitur practice had acceptance in the federal jurisdiction for more than a century, following Justice Story’s ruling at the circuit in Blunt v. Lillie, Fed. Cas. No. 1,578, 3 Mason 102 (C. C. 1822), no federal court had undertaken to increase a jury award of damages, although there are numerous cases in which a new trial was granted for inadequate damages. And this is equally true of New Jersey, save that in Gaffney v. Illingsworth, 90 N. J. L. 490 (E. & A. 1917), a new trial was ordered unless the defendant would consent to an increase of the jury’s verdict of $190.25 for the plaintiff to $480.50. In Esposito v. Lazar, 2 N. J. 257 (1949), error was found in the award of a new trial limited to damages in that the amount of the verdict indicated a “compromise” on liability.

There can be no doubt that the addiiur practice sanctioned here contravenes the essence of the common-law right of trial by jury at the time of the adoption of the 1776 Constitution, then and ever since a basic right under the law of England; and this is the very substance of our own constitutional guaranty. We are still a common-law State; and the essential principles of the common law are in force except as modified by our own Constitution and statutes enacted in keeping with the Constitution. This, in virtue of an explicit constitutional mandate. Taneian v. Meghrigian, 15 N. J. 267 (1954).

The reasoning of the minority in Dimiclc proceeds on the hypothesis, “long accepted in the federal courts,” that the “exercise of judicial discretion in denying a motion for a new trial, on the ground that the verdict is too small or too large, is not subject to review on writ of error or appeal,” a “special application of the more general rule that an appellate court will not re-examine the facts which induced the trial court to grant or deny a new trial,” and the unwilling plaintiff whose inadequate verdict has been increased by the court “has suffered no denial of a right because the court, staying its hand, has left the verdict undisturbed, as it lawfully might have done if the defendant had refused to pay more than the verdict,” and, although the common law had made no rule on the subject in 1791, the court could not “rightly refuse to apply to either the principle of general application that it is competent to exercise a discretionary power to grant or withhold relief in any way which is not unjust,” analogizing the judge’s function, “when sitting in equity,” to withhold “relief upon the compliance with a condition, the performance of which will do substantial justice,” citing Belt v. Lawes, L. R. 12 Q. B. Div. 356 (C. A. 1884), a remittitur case overruled by the House of Lords in Watt v. Watt, cited supra.

But this rationale does not take into account the basic quality of our own constitutional right of trial by jury, after the mode and manner and essentiality of the common law, to this very day “the glory of the English law” and “the most transcendant privilege which any subject can enjoy,” to use the words of Blackstone, Bk. 3, p. 379. And the additur principle is without general acceptance in this country, and for the given reasons. See annotation to Dimick in 95 A. L. R. 1163; Burdict v. Missouri Pac. Ry. Co., 123 Mo. 227, 27 S. W. 453, 26 L. R. A. 384 (Sup. Ct. 1894); also 39 Am. Jur. 206; 3 Am. Jur. 688. It is a doctrine of the civil law. Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194 (Sup. Ct. 1922); Stoehr v. Payne, 132 La. 213, 61 So. 206, 44 L. R. A., N. S. 604 (Sup. Ct. 1913). The question is one of constitutional power rather than procedural expediency.

Ho one would contend that the court has an absolute right to assess unliquidated damages in an action at law for a personal tort; and yet can it be other than that when the court in these circumstances imposes its judgment on the unwilling plaintiff? We are not concerned here with an action for liquidated damages, or damages fixed by a mere mathematical calculation from ascertained data or capable of certain computation on the record made, or a submission to the court without a jury on a stipulation of the facts. See 3 Am. Jur., Appeal and Error, section 1180.

If the trial judge has the power asserted here, so also is it the province of this court on a review of the sufficiency or insufficiency of an award by a jury. The issue of the weight of the evidence is now cognizable on appeal. Hager v. Weber, supra. R. R. 1:5 — 3 provides that a verdict of a jury “shall be set aside as against the weight of the evidence if, having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.” And yet this court does not undertake to supply the deficiency in the assessment of the damages by the trial judge, nor remand the cause for a reassessment by the judge, but directs a new jury trial limited to damages. .

I concur in this result.

Mr. Justice Oliphant joins in this opinion.

Hehbr and Oliphant, JJ., concurring in result.

For reversal — Chief Justice Vanderbilt, and Justices I-Ieher, Oliphant, Burling, Jacobs and WeintrauB' — 6.

For affirmance — Hone.