Anderson v. Aetna Casualty and Surety Co.

This was a rehearing in the above case, ordered by the Court.

The petition for rehearing, among other things, challenges the right of this Court to increase the amount of the verdict found by the jury. It is due to the writer of the original opinion to say that he was led by the brief of the appellants' attorneys to understand that if the judgment was affirmed the plaintiff was entitled to recover all that he asked for, to wit, $24,091.89, instead of the $18,091.89, found by the jury. It is alleged now, by the petition for rehearing, that the position of appellants' attorneys thereabout has been misunderstood, and they now deny the power of this Court to increase the amount of the verdict. It seemed advisable to the Court, in the circumstances, to grant the petition for a rehearing for the purpose of arguing this question alone, and it was so ordered. The Court being entirely satisfied with the opinion of the Court in relation to the other issues made by the appeal, the rehearing is limited to the one question, namely, the power of the Court to increase the verdict.

The issues on rehearing have been narrowed down to the one question of the power of the Supreme Court to increase the verdict of the jury.

Party seeking an amendment of a verdict must lay a proper foundation by motion for new trial. Middleton Co. v. A.C.L.R. Co., 133 S.C. 23,130 S.E., 552, 556; Levi v. Legg, 23 S.C. 282.

"Where in a law case the verdict * * * is for an amount greater than the defendant conceives it should have been, his remedy is to move for a new trial, and upon that motion the Circuit Judge may either order a new trial out and out, or order a new trial nisi, requiring the plaintiff at his option to remit a certain portion of the verdict or submit to a new trial. Should the Circuit Judge refuse the motion, upon a legal ground, the defendant has his remedy by appeal to this Court, which may either affirm or reverse the order below. In the event of affirmance, the case is ended; in the event of reversal, the Court may remand the case, either directing a new trial or a new trial nisi. So where the verdict is for an amount less than the plaintiff conceives it should have been, the remedy of the plaintiff is exactly the same. * * *

"`Where the objection that the recovery is inadequate is not raised in a motion for a new trial, it is waived and cannot be urged on appeal, and this is true although an exception is taken to the instructions on the measure of damages * * *' 29 Cyc., 751." Middleton Co. v. A.C.L.R.Co., supra.

"If there was any error on the part of the jury in this respect, the proper mode of correcting it would have been by a motion, addressed to the Circuit Court, for a new trial."Levi v. Legg, supra.

Although the Court may amend a verdict, the amendment must be accompanied with an option of a new trial nisi to the party against whom amendment militates.Joiner v. BeVier, 155 S.C. 340, 152 S.E., 652; Lorick Lowrance, Inc., v. Julius H. Walker Co., 153 S.C. 309,150 S.E., 789, 792; Middleton Co. v. A.C.L. Ry.Co., supra; Gwathmey v. Foor Hotel Co., 121 S.C. 237,113 S.E., 688, 689; Hall v. Northwestern Railroad Co., 81 S.C. 522,62 S.E., 848, 853; Levi v. Legg, supra, Warrenv. Lagrone, 12 S.C. 45, 51; 27 Ruling Case Law, 877 878.

"The Judge cannot, under the power of amending the verdict, invade the province of the jury or substitute his verdict for theirs." Lorick Lowrance, Inc., v. Julius H.Walker Co., supra.

"This Court has no power to readjust a verdict in a law case except in the manner indicated, and that is only through its power to order a new trial conditioned upon the refusal of the terms imposed. It grants a new trial nisi in favor of the defendant, unless the plaintiff should reduce the verdict, for the reason that it has no absolute control over the verdict; it cannot readjust it against the will of the plaintiff by reducing it. If it cannot reduce the verdict, it seems clear that it cannot increase it upon the plaintiffs' motion, except indirectly in the manner stated * * * through the indirect method of a new trial nisi." Middleton Co. v. A.C.L.R. Co., supra.

"The authority of a Circuit Judge to correct, modify, or interfere with the verdict of a jury in a case properly triable by jury is embraced in and limited to the power to grant new trials." Gwathmey v. Foor Hotel Co., supra.

"The Court in imposing conditions" will carefully preserve "the legal rights of the parties." Id.

"The Court may grant or refuse a new trial, or, in a proper case, may grant a new trial nisi; but should do one thing or the other." Quoted from Schultz v. C.M. St. P.R. Co.,48 Wis. 375, 4 N.W., 399, in Hall v. Northwestern RailroadCo., supra.

For the Court to amend a verdict in a law case without an accompanying option of a new trial nisi to the party against whom the amendment operates adversely amounts to an invasion of the province of the jury. Joiner v. BeVier, supra;Lorick Lowrance, Inc., v. Julius H. Walker Co., supra;Sanders v. Commonwealth Life Ins. Co., 134 S.C. 435,132 S.E., 828, 830; Middleton Co. v. Railway Co., supra;Gwathmey v. Foor Hotel Co., supra; Schein v. Epstein, 110 S.C. 433,96 S.E., 905; Levi v. Legg, supra; Hosford v.Wynn, 22 S.C. 309; Smith v. Grant, 15 S.C. 136; Carwilev. Harvey, 15 Rich. (49 S.S.L.), 314; Duff v. Hutson, 2 Bailey (18 S.C.L.), 215.

"The Judge cannot, under the power of amending the verdict, invade the province of the jury or substitute his verdict for theirs." Lorick Lowrance, Inc., v. Julius H.Walker Co., supra.

"The law rather forbids this Court assuming to take upon itself the powers, duties, rights and privileges of a jury."Sanders v. Commonwealth Life Ins. Co., supra.

"To sustain the plaintiffs' appeal and send the case back to the Circuit Court, with directions to include in the judgment what the plaintiffs may be entitled to, would amount to an increase of the verdict," which the Court cannot do except "indirectly in the manner stated," i. e., with the accompanying option of a new trial nisi. Middleton Co. v. RailwayCo., supra.

"Obviously, the absolute power to change or modify the findings of a jury upon an issue of fact properly submitted to them would, when exercised, amount to the substitution of the trial Judge's findings for the verdict of the jury and to the abrogation in such cases of the right of trial by jury. * * *" Gwathmey v. Foor Hotel Co., supra.

"The action was an action at law, and the Judge had no right to give a judgment contrary to the finding of the jury."Schein v. Epstein, supra.

The appellate Court "can only affirm or reverse and remand for a new trial, if necessary." Hosford v.Wynn, supra.

"The appeal Court in a law case * * * has no right to order an original judgment for plaintiff." Smith v. Grant,supra.

"Where in a suit on a bond, the jury brought in a verdict of one-fourth of the principal and interest due on the bond, a new trial was ordered." Carwile v. Harvey, supra.

"In the organization of our Courts of law, the power to ascertain the amount of damages has been confided to the jury, and it has become almost proverbial, that on this subject the verdict is conclusive." Duff v. Hutson, supra.

The trial Judge in the case has the right to set aside entirely any verdict rendered by the jury, and to order a new trial on any of the usual and recognized grounds. He has the power, also, to order a new trial nisi. It was within his province to grant the plaintiff a new trial conditioned upon the refusal of the defendants to remit from the verdict all, or parts, of the damages found in their favor, but none of these powers he exercised. Joiner v. BeVier, supra.

A jury's verdict should be upheld when possible to do so and to carry into effect what was clearly jury's intentions. But when the verdict is so confused that it is not absolutely clear what was intended, the Court should order a new trial. Lorick Lowrance, Inc., v. Walker Co., supra.

"A verdict should be certain and impart a definite meaning, free from ambiguity." Id.

"A trial Judge's power to make or order correction of a verdict in civil cases after discharge of jury, for purpose of giving effect to what the jury unmistakably found, is limited strictly to cases where the jury has express its finding informally, and the Judge cannot invade the jury's province or substitute his verdict for that of the jury under the guise of amending the verdict." Id.

"A trial Judge in claim and delivery suit could set aside verdict and award a new trial, order a new trial nisi, on refusal to remit damages." Joiner v. BeVier, supra.

"The verdict, originally returned, contained a special finding that plaintiff was guilty of actionable fraud to defendant's damage in the sum of $5,000.00, but omitted to assess damages for right of possession of property; on the paper was also an item marked total $5,500.00. This verdict was returned to the jury to make it less ambiguous as to amount of damages and their intent, and they returned a verdict that defendant should recover possession of property, the value of which was $5,500.00, together with $5,500.00 damages for wrongful taking and retention thereof by plaintiff. The verdict left it doubtful what damages were awarded for the taking and detention, if any." Id.

The authority of a Circuit Judge to correct, modify, or interfere with the verdict of a jury in a case properly triable by a jury is embraced in, and limited to, the power to grant new trials. Civ. Code, 1912, § 3831; Code Civ. Proc., 1912, § 324 (now Code 1932, §§ 34, 605). Obviously, the absolute power to change or modify the findings of a jury upon an issue of fact properly submitted to them would, when exercised, amount to a substitution of the trial Judge's findings for the verdict of the jury and to the abrogation in such cases of the right of trial by jury. There being no question as to the legal right of the plaintiff in her action of tort for unliquidated damages to have the amount of damages determined by a jury, the order of the Circuit Judge must be adjudged erroneous in so far as it rendered the amount of the verdict without allowing the plaintiff the option of a new trial nisi." Id.

"It is well settled that this Court has no power to review or correct the findings of fact in a trial by jury. Const., Art. 4, § 4. But it is provided that `the Judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages.' Gen. Stat., 636, § 288; vide, also, Act of 1868, Gen. Stat., 497, § 4. From the decision of the Circuit Judge on such motion, based upon error in fact, as for insufficient evidence or for excessive damages, there is no appeal. The Circuit Court, therefore, in such respect, is a Court of final resort, and except where especially directed by constitution or statutory provisions, is to be governed in its proceedings, by the principles of law and the rules of practice which were of force and applicable to Courts in the exercise of similar power prior to the adoption of the constitution in 1868."Warren v. Lagrone, supra.

"The sixth ground alleges error, because the jury, by their verdict, allowed interest on the value of the cotton. This ground should propertly have been presented on a motion addressed to the Circuit Judge for a new trial, for it does not appear that there was any request for any instruction to the jury upon this point, or that any instruction was given."Wilson v. Atlanta C. Airline Ry. Co., 16 S.C. 587, 592.

In James v. Morey, 44 Ill., 352, it is held: Where a verdict for plaintiff is for too small a sum and he moves for a new trial on that ground, it is not error for the Court to announce that it will grant the motion, unless defendant consents to a certain increase of the amount of the verdict.

In West v. Milwaukee, L.S. W. Ry. Co., 56 Wis. 318,14 N.W., 292, the plaintiff appealed upon the ground that he had not been allowed interest upon the amount found due to him by the verdict. The Court held that he was entitled to interest, and assimilating the situation to that of the defendant moving for a new trial upon the ground that the verdict was excessive, ordered a new trial, unless the defendant would stipulate within a certain time that the verdict be increased to the extent of such interest, showing that the Court had no more power to increase a verdict than to reduce it, except through the indirect method of a new trial nisi.

In Aultman v. Thompson (C.C.), 19 F., 490, upon a motion for a new trial, the Court held that the plaintiff was entitled to more than the amount of the verdict by a certain amount, and granted the plaintiff's motion nisi, requiring the defendant to consent that judgment for the excluded sum be entered against him or submit to a new trial, enforcing the same rule as is applied where the defendant moves for a new trial upon the ground of an excessive verdict.

In Gosczinzki v. Carlson, 157 Wis. 551, 147 N.W., 1018, the plaintiff in an assault and battery civil case had a verdict for $70.00 damages; he moved for a new trial upon the ground that the damages allowed were inadequate. The trial Judge granted his motion, unless the defendant would within a fixed time file a consent that judgment be entered against him for $250.00. The defendant appealed. The Court held that the order was proper.

In Ford v. R. Co., 98 Minn., 96, 107 N.W., 817. 8 Ann. Cas., 902, the plaintiff had a verdict of $1.00 in an action for damages on account of an assault and battery by an employee of the defendant. Upon his motion for a new trial, the Court ordered a new trial unless the defendant within a fixed time would consent in writing that the verdict be increased to $150.00. Upon appeal by the defendant, the Court held that the order was entirely right.

"But the Court may require a defendant to consent to an increase in the amount of the judgment to the amount indisputably due, on pain of granting plaintiff's motion for a new trial." 38 Cyc., 1899.

In Smith v. Ellyson, 137 Iowa, 391, 115 N.W., 40, it is held that, upon plaintiff's motion for a new trial, it could be granted upon condition that the defendant refused to make a certain modification of the verdict.

In Reuter v. Hickman, Lauson Diener Co., 160 Wis. 284,151 N.W., 795, Ann. Cas., 1916-B, 455, it is held that in granting a new trial for inadequacy of damages, whether the defendant should be given the option to allow judgment for a larger sum, was within the discretion of the trial Court.

In Gaffney v. Illingsworth, 90 N.J. Law, 490,101 A., 243, the Court said: "When a new trial is granted because the damages are inadequate, the Court may impose * * * terms to the effect that, if the defeated party will pay a certain sum greater than that awarded by the verdict, the rule will be discharged."

In Marsh v. Minneapolis Brewing Co., 92 Minn., 182,99 N.W., 630, the Court held that on a motion for a new trial the Court had the right to grant the order nisi, requiring the defendant to consent to an increase of the verdict in a damage suit from $50.00 to $175.00, or submit to a new trial.

In Schein v. Epstein, supra, the Court said: "The action was an action at law, and the judge had no right to give a judgment contrary to the finding of the jury. The decree practically sets aside the verdict of the jury, and that much his Honor had the right to do."

In Gwathmey v. Foor Hotel Co., 121 S.C. 237,113 S.E. 688, upon the defendant's motion for a new trial, the Circuit Judge passed an order directing that the verdict for punitive damages be reduced to $500.00, and refusing the motion. The Court held that this was error, in that the plaintiff was not allowed the option of remitting that amount or of submitting to a new trial. The Court adopts the reasoning of the Court in the Gwathmey case, and also the excellent opinion of Mr. Justice Cothran in Middleton Co. v. A.C.L.R. Co., supra, from which much of the above has been copied.

In Iowa, where plaintiff on appeal contends that he should have an increase in the amount found for him, the Courts hold that the Supreme Court on appeal, only reverse the judgment and order a new trial, and if he does not consent to this, no other relief can be granted to him. Minthorn v.Hemphill, 73 Iowa, 257, 34 N.W., 844.

In Kansas, the Supreme Court will not increase the amount of a judgment of the district Court, without any finding of Court, jury, or referee authorizing the same.Holton v. McPike, 27 Kan., 286.

Where damages for a tort have been assessed by a jury at one entire sum, the Court, upon a motion for a new trial, cannot, according to its own estimate of the amount of damages, which the plaintiff ought to have recovered, enter an absolute judgment for any other sum than that assessed by the jury. Kennon v. Gilmer,131 U.S. 22, 9 S.Ct., 696, 33 L.Ed., 110.

Court on appeal may either (1) deny the motion, or (2) grant a new trial, or (3) order that a new trial be had, unless the plaintiff elects to remit a certain part of the verdict.

"But the Court has no authority to pass upon any question of fact involved in the consideration of the motion for a new trial. And, in a case in which damages for a tort have been assessed by a jury at an entire sum, no Court of law upon a motion for a new trial for excessive damages for the insufficiency of the evidence to support the verdict, is authorized, according to its own estimate of the amount of damages which the plaintiff ought to have recovered to enter an absolute judgment for any other sum than that assessed by the jury." Id.

It seems from the best investigation that this Court can make as to the rule in other states, that in Louisiana, Georgia, Massachusetts, New York, Alabama, Texas, and some other states, the matter of the highest Court in the state increasing the amount of a verdict is regulated by a statutory provision, and, of course, the cases from such state could not be of any benefit here. We do not think the following cases should have any application to the case at bar: Cook Laurie Contracting Co. v. Bell, 177 Ala., 618, 59 So., 273;Minn. Mut. Life Ins. Co. v. Welsh, 131 Ill. App., 103;Minn. Mut. Life Ins. Co. v. Link, 230 Ill., 273,82 N.E., 637; Jackson v. City of Brockton, 182 Mass. 26,64 N.E., 418, 94 Am. St. Rep., 635; Gilman v. Gilman, 53 Me., 184;Richardson v. Ins. Co., 47 N.Y. Super. Ct., 138; Worthamv. Harrison, 8 Tex., 141; Bush v. Hall, 95 N.C. 82;Brooks v. Brooks, 12 S.C. 422; Pridgen v. Bonner,28 Tex., 800; Brooks v. Masterson (Tex.Civ.App.),82 S.W., 822; McNairy v. Castleberry, 6 Tex., 286; Thomsonv. Bishop, 29 Tex., 154; Russell v. Miller, 40 Tex., 494;Morrison v. Dibrell, 22 Tex., 199; East Tenn. V. G. Ry.Co. v. Burnett's Ex'rs, 11 Lea (Tenn.), 525; Graham v.Marshall, 52 Pa., 2 P.F. Smith), 28; Spence v. Damrow,32 Neb. 112, 48 N.W., 880; American-Hawaiian Engineering Const. Co. v. Butler, 17 Cal.App., 764, 121 P., 709;Berthold v. Gruner, 12 Mo. App., 575. And all other cases cited in 4 Corpus Juris, page 1160, § 3171, as authority for the appellate Courts to increase the amount of a verdict, do not apply and are not binding on us.

The same remark applies to Section 234 on page 280 of Volume 2 of Ruling Case Law.

We have also considered the cases cited in §§ 4498 etseq., columns 2513 et seq. of Vol. 3 of Century Digest (Appeal and Error).

Also, Key 1151 of the First, Second, and Third Decennial Digests, all published by the West Publishing Company, Appeal and Error.

We do not find the weight of authority against the views herein expressed.

The following additional cases hold that an amount may not be increased by the appellate Court: Kingsley v. City ofBrooklyn, 5 Abb. N.C. (N.Y.), 1; McHugh v. New YorkEl. R. Co., 65 Hun., 619, 19 N.Y.S., 744; Newhall v.Wyatt, 68 Hun., 1, 22 N.Y.S., 828; Moffet v. Sackett,18 N.Y., 522.

We find the following section (Section 593) in the Code 1932 (after omitting first part):

"Framing of Issues. — In all equity causes now pending or hereafter instituted in the Courts of Common Pleas of this State, the presiding Judge may, in his discretion, cause to be framed an issue or issues of fact, to be tried by a jury. * * *

"Force of Verdict. — * * * The findings of fact upon such issues by the jury shall be conclusive of the same: Provided, That the presiding Judge may grant new trials therein, according to the practice in other jury trials; And provided, further, That exceptions to the rulings of the presiding Judge upon such trials may be taken by either party, and such rulings may be reviewed by the Supreme Court upon appeal from the final judgment."

The jury and Judge Sease may have found in the testimony of T.B. Butler and other testimony along the same line about an appeal at one time pending sufficient to make the verdict and amount found by the lower Court what it was, rather than the amount contended for by the plaintiff.

Under the law, as above cited, and under the facts as developed in this case, we find that the Court has no power to increase the amount found by the lower Court.

Therefore, the opinion heretofore filed in this case is amended by striking therefrom all those parts which hold that this Court had the power to increase the amount of the verdict found by the jury; as thus amended that opinion is made the judgment of this Court.

MESSRS. JUSTICES STABLER, CARTER, and BONHAM and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON concur.