Dunstan v. Round Hill Dairy, Inc. , 128 Conn. 300 ( 1941 )

I am not able to agree that this court is justified, even if it has the power, to direct judgment in this case. The record shows that the damages were based largely on the appearance of the plaintiff. We did not see him. The finding affords no sufficient basis for the action taken. In Goodwin v. Giovenelli, cited in the opinion, the trial was to the court but the usual procedure of ordering a remittitur was followed.

In a trial to the court, the trial judge sits as a jury. It is uniformly held that judgment cannot be directed by the appellate court on the ground that the damages awarded by a verdict are excessive without giving the plaintiff the option of filing a remittitur or of having a new trial. While here the constitutional right to trial by jury is not involved, much of the reasoning of the cases applies. 20 R.C.L. 281; 3 Am. Jur. 686, 1177, 1179; 53 A.L.R. 779, note. The English rule goes so far as to require the consent of the defendant to the filing of a remittitur. Watt v. Watt, 1905 A.C. 115, 6 B.R.C. 1, 2 Ann. Cas. 672.