1. Under the Seventh Amendment, a federal court, finding a
verdict inadequate, is without power to add to it by refusing to
grant the plaintiff a new trial if the defendant will accept an
increase which the court deems sufficient. So
held in an
action for personal injuries due to negligence.
2. In order to ascertain the scope and meaning of the Seventh
Amendment, resort must be had to the appropriate rules of the
common law established at the time of the adoption of that
constitutional provision in 1791. P.
293 U. S.
476.
English cases examined on the power of the courts to increase
damages,
super visum vulneris, in actions for mayhem, and
upon writ of inquiry, and in actions of debt.
3. Upon an examination of many English authorities, it is
concluded 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 sounding in tort,
such as the present one. P.
293 U. S.
482.
4. The authority exercised by federal courts of denying a motion
for a new trial because of an excessive verdict if the plaintiff
will remit the excess is embedded in long practice, and has
plausible support in the view that what remains of the recovery was
found by the jury in the sense that it was included in the verdict
along with the unlawful excess, the effect of the remittitur being
merely to lop off an excrescence; but where the verdict is too
small, an increase by the court is a bald addition of something
never included in the verdict. The trial court cannot, by assessing
an additional amount of damages with the consent of the defendant
only, bring the constitutional right of the plaintiff to an end in
respect of a matter of fact which no jury has ever passed upon,
either explicitly or by implication. P.
293 U. S.
482.
5. In the discharge of its duty of construing and upholding the
Constitution, the Court must ever be alert to prevent the
subversion of
Page 293 U. S. 475
fundamental principles through the extension of doubtful
precedents by analogy. P.
293 U. S.
485.
6. Maintenance of the jury as a factfinding body is of such
importance, and occupies so firm a place in our history and
jurisprudence, that any seeming curtailment of the right to a jury
trial should be scrutinized with the utmost care. P.
293 U. S.
486.
7. The effect of the Seventh Amendment was to adopt the common
law rules of jury trial as they existed in 1791, and these, being
in effect part of the Constitution, cannot be altered now under
pretense of adapting the common law to altered conditions. P.
293 U. S.
487.
70 F.2d 558 affirmed.
Certiorari to review the reversal of a judgment for damages in
an action for personal injuries, entered on denial of the
plaintiff's motion for a new trial, after the plaintiff had
declined to accept an increase offered by the court and agreed to
by the defendant.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is an action brought by respondent (plaintiff) against
petitioner (defendant) in the federal District Court for the
District of Massachusetts to recover damages for a personal injury
resulting from the alleged negligent operation of an automobile on
a public highway in Massachusetts. The jury returned a verdict in
favor of respondent for the sum of $500. Respondent moved for a new
trial on the grounds that the verdict was contrary to the weight of
the evidence, that it was a compromise verdict, and that the
damages allowed were inadequate. The trial court ordered a new
trial upon the last-named
Page 293 U. S. 476
ground unless petitioner would consent to an increase of the
damages to the sum of $1,500. Respondent's consent was neither
required nor given. Petitioner, however, consented to the increase,
and, in accordance with the order of the court, a denial of the
motion for new trial automatically followed. Respondent appealed to
the Circuit Court of Appeals, where the judgment was reversed, the
court holding that the conditional order violated the Seventh
Amendment of the Federal Constitution in respect of the right of
trial by jury. 70 F.2d 558, 562. That court recognized the
doctrine, frequently stated by this Court, that, in the case of an
excessive verdict, it is within the power of the trial court to
grant defendant's motion for a new trial unless plaintiff remit the
amount deemed to be excessive, but held that the trial court was
without power to condition the allowance of plaintiff's motion for
a new trial upon the refusal of defendant to consent to an increase
in the amount of damages.
The Seventh Amendment provides:
"In suits at common law where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any Court of the United States than according to the
rules of the common law."
Section 269 of the Judicial Code, as amended, U.S.C. Title 28, §
391, confers upon all federal courts power to grant new trials "in
cases where there has been a trial by jury, for reasons for which
new trials have usually been granted in the courts of law. . .
."
In order to ascertain the scope and meaning of the Seventh
Amendment, resort must be had to the appropriate rules of the
common law established at the time of the adoption of that
constitutional provision in 1791.
Thompson v. Utah,
170 U. S. 343,
170 U. S. 350;
Patton v. United States, 281 U. S. 276,
281 U. S. 288.
A careful examination of the English reports prior to that time
fails to disclose any
Page 293 U. S. 477
authoritative decision sustaining the power of an English court
to increase, either absolutely or conditionally, the amount fixed
by the verdict of a jury in an action at law, with certain
exceptions.
1. In actions for mayhem, there are numerous ancient cases to be
found in the year books, and occasional cases at a somewhat later
period, in which the right of the court to increase damages awarded
plaintiff,
super visum vulneris, is recognized. We deem it
unnecessary to catalogue or review these cases. Many of them are
referred to in 2 Bacon's Abridgment (7th Ed.) 611, and Sayer's Law
of Damages (1770) p. 173
et seq. The last case called to
our attention or that we have been able to find that recognized the
rule is that of
Brown v. Seymour (1742) 1 Wils. 5, where
the court, while conceding its power to increase damages upon view
of the party maimed, refused to exercise it, holding the damages
awarded were sufficient. We have found no case where the power was
exercised affirmatively since
Burton v. Baynes (1733),
reported in Barne's Practice Cases 153, where the court, upon view
of the injury, increased the damages from �11, 14 s., to �50. The
power of the trial court to increase damages in such cases was
seldom exercised, and it seems quite clear, from an examination of
the decisions and of the English Abridgments, that the generally
approved practice confined its exercise to the court sitting en
banc. Moreover, the application for the increase was made by the
plaintiff, considered upon a view of his wound, and, when favorably
acted upon, granted absolutely, and not as a condition upon which
to base a denial of a new trial. Indeed, the practice of granting
new trials in such cases did not come into operation until a later
date. In any event, the rule was obsolete in England at the time of
the adoption of the Constitution, and we are unable to find that it
ever was acted upon or accepted in the colonies, or by any of the
federal or state courts since the adoption of the Constitution.
Page 293 U. S. 478
It was expressly rejected in an early case in South Carolina.
McCoy v. Lemon, 11 Rich. 165. There, the plaintiff, as a
result of an altercation with the defendant, lost an eye and the
use of one thumb. The jury returned a verdict for $30. The trial
court, although conceding the inadequacy of the damages, held that
no court possessed the power to bring about an increase or decrease
of the amount found by a jury in any other way than by granting a
new trial. The Court of Appeals sustained the trial court. "Not a
single case," the appellate court said,
"has been found in any book of American Reports in support of
the present motion, notwithstanding the great research displayed by
counsel. Neither has there been for a period of more than a century
any recognition of the rule by any adjudged case in England to
which we have been able to procure access."
After pointing out the jealous regard of the American people, as
evidenced by constitutions and legislation, for the right of jury
trial, the court said that the judgment of the jury had been
incorporated as an indispensable element in the judicial
administration of the country; that, in all cases sounding in
damages, these damages must be assessed by the jury, and not by the
court independently thereof, and that, where the verdict was
excessive or trifling, the remedy was to submit the case to the
judgment of another jury. In Mayne's Treatise on Damages (9th ed.).
the first edition of which appeared in 1856, after referring to the
long current of English decisions in respect of the power of the
court to increase damages in mayhem cases, the author (p. 571) said
he was not aware of an instance in which such a jurisdiction had
been exercised in modern times.
And see Union Pacific Ry. Co.
v. Botsford, 141 U. S. 250,
141 U. S.
252.
2. The power of the court to increase or diminish damages
assessed upon a writ of inquiry was likewise upheld, but this upon
the ground that the justices might themselves have awarded damages
without the writ, and the
Page 293 U. S. 479
inquisition therefore was nothing more than an inquest for their
information. Sayer's Law of Damages 194;
Beardmore v.
Carrington, 2 Wils. 244, 248; Brooke's New cases, March's
Translation, 56, 57; 2 Bacon's Abridgement (7th Ed.) 612. But even
this rule seems long since to have fallen into disuse; the more
modern practice being to award a new writ of inquiry in all cases
in which the court would award a new trial. Mayne's Treatise on
Damages 572, 573, citing Chitty's Practice, 14th ed., p. 1326.
3. So it was held in some of the old cases that, where the
amount of plaintiff's demand was certain -- as, for example, in an
action of debt -- the court had authority to increase or abridge
the verdict of the jury. Mayne's Treatise on Damages 571; Sayer's
Law of Damages 177.
In
Beardmore v. Carrington, supra, decided in 1764, the
court reviewed the subject and reached the conclusion that the
English courts were without power to either increase or abridge
damages in any action for a personal tort, unless in the
exceptional cases just noted. The decision is most instructive, as
a brief quotation will show. The italics are in the original.
"It is clear," the court said at p. 248,
"that the practice of granting new trials is
modern,
and that courts anciently never exercised this power, but in some
particular cases they corrected the damages from evidence laid
before them. 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
Page 293 U. S. 480
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
wherever the court abridged the damages after a principal verdict,
and this is clear down to the time of
Palmer's Rep. 314.
much less have they interposed in increasing damages, except in the
case of
maihem. . . ."
Sayer, writing between 1765 and 1770 (Sayer's Law of Damages,
173) says that the power of increasing or abridging damages which
have been assessed by the jury "has not for many years been
exercised by courts in any action except in an action for a
corporal hurt," by which he means, as appears further along, in
cases of mayhem. Mayne, in the treatise already cited, says (p.
571) that it was always admitted
"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."
Recent English decisions fully confirm this view in respect of
the common law rule as it existed at the time of the adoption of
the Constitution. Thus, Mayne (p. 580) says:
"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."
It is true that
Belt v. Lawes, L.R. 12 Q.B.Div. 356,
upheld the authority of the court to deny a new trial
Page 293 U. S. 481
upon the consent of the plaintiff to reduce the damages to an
amount which the court would consider not excessive had they been
given by the jury, and that the Master of the Rolls, in his
opinion, declared that he was by no means prepared to say that the
court might not refuse a new trial if a defendant would agree that
the damages should be larger. But this doctrine was expressly
repudiated by the House of Lords in
Watt v. Watt, L.R.
[1905] A.C. 115, and
Belt v. Lawes was definitely
overruled.
In the
Watt case, the principal opinion (pp. 119, 120)
pointed out that the notion that the court, with the consent of the
plaintiff, could 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 refusal to
give the plaintiff judgment unless he would consent to reduce his
claim to what ought to be considered reasonable;"
that this indirect method shows that the plaintiff's assent was
required, 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 assent of both
parties. It was conceded in the opinions delivered to the House
that there had been a certain amount of practice in accordance with
the course complained of, but in principle, it was said, this
practice was indefensible, and that no reasoned vindication of it
had been found. The prevailing opinions in
Barbour & Co. v.
Deutsche Bank, L.R. [1919] A.C. 304, while distinguishing the
case then under review, are (as all the opinions are) in full
accord with the decision in the
Watt case. Lord
Phillimore, in the course of his opinion (p. 335) characterized
that decision as one of inconvenient rigor, but nevertheless
unimpeachable and logical. The principle established, he said, was
this:
Page 293 U. S. 482
"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
decision, 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."
From the foregoing and from many other English authorities which
we have examined but deem it unnecessary to cite, we conclude 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.
We could well rest this opinion upon that conclusion, were it
not for the contention that our federal courts, from a very early
day, have upheld the authority of a trial court to deny a motion
for new trial because damages were found to be excessive if
plaintiff would consent to remit the excessive amount, and that
this holding requires us to recognize a similar rule in respect of
increasing damages found to be grossly inadequate. There is a
decision by Mr. Justice Story, sitting on circuit, authorizing such
a remittitur, as early as 1822.
Blunt v. Little, 3 Mason,
102. There, the jury returned a verdict
Page 293 U. S. 483
for $2,000 damages, suffered as a result of a malicious arrest.
Defendant moved for a new trial on the ground that the damages were
excessive. The court asserted its power to grant a new trial upon
that ground, but directed that the cause should be submitted to
another jury unless plaintiff was willing to remit $500 of the
damages. This view of the matter was accepted by this Court in
Northern Pacific R. Co. v. Herbert, 116 U.
S. 642,
116 U. S.
646-647, and has been many times reiterated.
See,
for example, Arkansas Valley Land & Cattle Co. v. Mann,
130 U. S. 69,
130 U. S. 73;
Kennon v. Gilmer, 131 U. S. 22,
131 U. S. 29;
Koenigsberger v. Richmond Silver Mining Co., 158 U. S.
41,
158 U. S. 52;
German Alliance Ins. Co. v. Hale, 219 U.
S. 307,
219 U. S. 312;
Gila Valley Ry. Co. v. Hall, 232 U. S.
94,
232 U. S.
103-105.
Since the decision of Mr. Justice Story in 1822, this Court has
never expressed doubt in respect of the rule, and it has been
uniformly applied by the lower federal courts. It is, however,
remarkable that in none of these cases was there any real attempt
to ascertain the common law rule on the subject. Mr. Justice Story,
in the
Blunt case, cited two English cases antedating the
Constitution in support simply of his conclusion that the court had
power to grant a new trial for excessive damages, and thereupon
announced without more that, unless the plaintiff should be willing
to remit $500 of his damages, the cause would be submitted to
another jury. For the latter conclusion, no authority whatever was
cited. The plaintiff remitted the amount, and the motion was
overruled. The opinion in the
Herbert case was delivered
by Mr. Justice Field. Upon the question now under consideration,
the opinion does no more than declare that the exaction, as a
condition of refusing a new trial, that plaintiff should remit a
portion of the amount awarded by the verdict was a matter within
the discretion of the court, in support of which two American state
cases and
Page 293 U. S. 484
the
Blunt case are cited. The common law in respect of
the matter is not referred to. The state cases cited are equally
silent in respect of the common law rule.
The nearest approach to a reasoned opinion on the subject in any
of the decisions is found in
Arkansas Valley Land & Cattle
Co. v. Mann, supra. In that opinion, the court states the
contention to be that to make the decision of the motion for new
trial depend upon a remission of part of the verdict is in effect a
reexamination by the court in a mode not known at the common law of
facts tried by the jury, and therefore a violation of the Seventh
Amendment. The court decided against this contention upon the
authority of the
Blunt case, the
Herbert case,
and certain American state decisions. English cases were referred
to only upon the point that the court had authority to set aside
the verdict and grant a new trial where the damages are palpably or
outrageously excessive. No attempt was made to seek the common law
rule, in respect of the precise contention which was made, by an
examination of the English decisions or of the English practice
prior to the adoption of the Constitution.
In the last analysis, the sole support for the decisions of this
Court and that of Mr. Justice Story, so far as they are pertinent
to cases like that now in hand, must rest upon the practice of some
of the English judges -- a practice which has been condemned, as
opposed to the principles of the common law by every reasoned
English decision, both before and after the adoption of the Federal
Constitution, which we have been able to find.
In the light reflected by the foregoing review of the English
decisions and commentators, it therefore may be that, if the
question of remittitur were now before us for the first time, it
would be decided otherwise. But, first announced by Mr. Justice
Story in 1822, the doctrine has been accepted as the law for more
than a hundred years, and uniformly applied in the federal
courts
Page 293 U. S. 485
during that time. And, as it finds some support in the practice
of the English courts prior to the adoption of the Constitution, we
may assume that, in a case involving a remittitur, which this case
does not, the doctrine would not be reconsidered or disturbed at
this late day.
Nevertheless, 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 be not extended by mere analogy to a
different case if the result will be to weaken or subvert what it
conceives to be a principle of the fundamental law of the land.
Compare Judson v. Gray, 11 N.Y. 408, 412.
That rule applies with peculiar force to the present case,
since, accepting
Arkansas Valley Land & Cattle Co. v. Mann,
supra, and like cases as settling the precise question there
involved, they do not conclude the question here presented -- that
is to say, the power to conditionally increase the verdict of a
jury does not follow as a necessary corollary from the power to
conditionally decrease it. As the court below correctly pointed
out, 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 right of trial by jury is of ancient origin, characterized
by Blackstone as "the glory of the English law" and "the most
transcendent privilege which any subject can enjoy" (Bk. 3, p.
379), and, as Justice Story said (2 Story on the Constitution, §
1779),
". . . the Constitution would have been justly obnoxious to the
most conclusive objection if it had not recognized and confirmed it
in the most solemn terms."
With, perhaps, some exceptions, trial by jury has always been,
and still is, generally regarded
Page 293 U. S. 486
as the normal and preferable mode of disposing of issues of fact
in civil cases at law as well as in criminal cases. Maintenance of
the jury as a factfinding body is of such importance, and occupies
so firm a place in our history and jurisprudence, that any seeming
curtailment of the right to a jury trial should be scrutinized with
the utmost care.
Compare Patton v. United States,
281 U. S. 276,
281 U. S.
312.
The controlling distinction between the power of the court and
that of the jury is that the former is the power to determine the
law and the latter to determine the facts. In dealing with
questions like the one now under consideration, that distinction
must be borne steadily in mind. Where the verdict returned by a
jury is palpably and grossly inadequate or excessive, it should not
be permitted to stand; but, in that event, both parties remain
entitled, as they were entitled in the first instance, to have a
jury properly determine the question of liability and the extent of
the injury by an assessment of damages. Both are questions of fact.
Where the verdict is excessive, the practice of substituting a
remission of the excess for a new trial is not without plausible
support in the view that what remains is included in the verdict
along with the unlawful excess in that sense that it has been found
by the jury -- and that the remittitur has the effect of merely
lopping off an excrescence. But, where the verdict is too small, an
increase by the court is a bald addition of something which in no
sense can be said to be included in the verdict. When, therefore,
the trial court here found that the damages awarded by the jury
were so inadequate as to entitle plaintiff to a new trial, how can
it be held with any semblance of reason that that court, with the
consent of the defendant only, may, by assessing an additional
amount of damages, bring the constitutional right of the plaintiff
to a jury trial to an end in respect of a matter of fact which no
jury has ever passed upon either explicitly
Page 293 U. S. 487
or by implication? To so hold is obviously to compel the
plaintiff to forego his constitutional right to the verdict of a
jury, and accept "an assessment partly made by a jury which has
acted improperly, and partly by a tribunal which has no power to
assess."
It is said that the common law is susceptible of growth and
adaptation to new circumstances and situations, and that the courts
have power to declare and effectuate what is the present rule in
respect of a given subject without regard to the old rule, and some
attempt is made to apply that principle here. The common law is not
immutable, but flexible, and, upon its own principles, adapts
itself to varying conditions.
Funk v. United States,
290 U. S. 371. But
here we are dealing with a constitutional provision which has in
effect adopted the rules of the common law in respect of trial by
jury as these rules existed in 1791. To effectuate any change in
these rules is not to deal with the common law,
qua common
law, but to alter the Constitution. The distinction is fundamental,
and has been clearly pointed out by Judge Cooley in 1 Const.
Limitations, 8th ed., 124.
It is worthy of note that, while for more than a century the
federal courts have followed the approved practice of conditioning
the allowance of a new trial on the consent of plaintiff to remit
excessive damages, no federal court, so far as we can discover, has
ever undertaken similarly to increase the damages, although there
are numerous cases where motions for new trial have been made and
granted on the ground that the verdict was inadequate.
See, for
example, Carter v. Wells, Fargo & Co., 64 F. 1005;
Usher v. Scranton Ry. Co., 132 F. 405;
Glenwood Irr.
Co. v. Vallery, 248 F. 483;
United Press Assns. v.
National Newspapers Assn., 254 F. 284;
Stetson v.
Stindt, 279 F. 209. This, it is true, is but negative
evidence, but it is negative evidence of more than ordinary value.
For, when we consider that, during
Page 293 U. S. 488
the great length of time mentioned, the federal courts were
constantly applying the rule in respect of the remission of
excessive damages, the circumstance that the practice here in
question in respect of inadequate damages was never followed or,
apparently, its approval even suggested, seems highly significant
as indicating a lack of judicial belief in the existence of the
power.
State decisions in respect of the matter have been brought to
our attention, and have received consideration. They embody rulings
both ways. A review of them, we think, would serve no useful
purpose.
Judgment affirmed.
MR. JUSTICE STONE, dissenting.
I think the judgment should be reversed.
What the trial court has done is to deny a motion for a new
trial for what seemed to it a good reason: that the defendant had
given his binding consent to an increased recovery, which the court
thought to be adequate, and thus to remove any substantial ground
for awarding a new trial. In denying the motion, the trial judge
relied on two rules of the common law which have received complete
acceptance for centuries. One is that the court has power to act
upon a motion to set aside the verdict of a jury because inadequate
or excessive, and in its discretion to grant or deny a new trial.
Railroad Co. v. Fraloff, 100 U. S. 24,
100 U. S. 31;
Wilson v. Everett, 139 U. S. 616,
139 U. S. 621;
Lincoln v. Power, 151 U. S. 436,
151 U. S. 438.
The other, which is implicit in the first, is that it has power to
determine, as a matter of law, the upper and lower limits within
which recovery by a plaintiff will be permitted and the authority
to set aside a verdict which is not within those limits.
Arkansas Valley Land & Cattle Co. v. Mann,
130 U. S. 69,
130 U. S. 74.
Cf. Southern Ry. Co. v. Bennett, 233 U. S.
80,
233 U. S. 87.
Page 293 U. S. 489
As a corollary to these rules is the further one of the common
law, 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.
Railroad Co. v. Fraloff,
supra, 100 U. S. 31;
Wabash Ry. Co. v. McDaniels, 107 U.
S. 454,
107 U. S. 456;
Fitzgerald & Mallory Construction Co. v. Fitzgerald,
137 U. S. 98,
137 U. S. 113;
Wilson v. Everett, supra, 139 U. S. 621;
Lincoln v. Power, supra, 151 U. S. 438;
Luckenbach S.S. Co. v. United States, 272 U.
S. 533,
272 U. S. 540.
This is but a special application of the more general rule that an
appellate court will not reexamine the facts which induced the
trial court to grant or deny a new trial. [
Footnote 1]
Barr v. Gratz,
4 Wheat. 213,
17 U. S. 220;
The Abbotsford, 98 U. S. 440,
98 U. S. 445;
Railroad Co. v. Fraloff, supra, 100 U. S. 31;
Terre Haute & Indiana Ry. Co. v. Struble, 109 U.
S. 381,
109 U. S.
384-385;
Fishburn v. Chicago, Milwaukee & St.
Paul Ry. Co., 137 U. S. 60,
137 U. S. 61;
Ayers v. Watson, 137 U. S. 584,
137 U. S. 597;
Wilson v. Everett, supra, 139 U. S. 621;
Luckenbach S.S. Co. v. United States, supra, 272 U. S.
540.
If the effect of what is now decided is to liberalize the
traditional common law practice so that the denial of a motion for
a new trial, made on the ground that the verdict is excessive or
inadequate, is subject to some sort of appellate review, the change
need not be regarded as unwelcome, even though no statute has
authorized it. But the question remains whether, in exercising this
power of review, the trial judge should be reversed.
The decision of the Court is rested on the ground that the
Constitution prohibits the trial judge from adopting
Page 293 U. S. 490
the practice. Accordingly, I address myself to the question of
power without stopping to comment on the generally recognized
advantages of the practice as a means of securing substantial
justice and bringing the litigation to a more speedy and economical
conclusion than would be possible by a new trial to a jury, or the
extent to which that or analogous practice has been adopted and
found useful in the courts of the several states.
See
Correction of Damage Verdicts by Remittitur and Additur, 44 Yale
Law J. 318. The question is a narrow one: whether there is anything
in the Seventh Amendment or in the rules of the common law, as it
had developed before the adoption of the amendment, which would
require a federal appellate court to set aside the denial of the
motion merely because the particular reasons which moved the trial
judge to deny it are not shown to have similarly moved any English
judge before 1791.
The Seventh Amendment commands that, "in suits at common law,"
the right to trial by jury shall be preserved, and that "no fact
tried by a jury shall be otherwise reexamined by any court of the
United States, than according to the rules of the common law." Such
a provision of a great instrument of government, intended to endure
for unnumbered generations, is concerned with substance, and not
with form. There is nothing in its history or language to suggest
that the amendment had any purpose but to preserve the essentials
of the jury trial as it was known to the common law before the
adoption of the Constitution. For that reason, this Court has often
refused to construe it as intended to perpetuate in changeless form
the minutiae of trial practice as it existed in the English courts
in 1791. From the beginning, its language has been regarded as but
subservient to the single purpose of the amendment -- to preserve
the essentials of the jury
Page 293 U. S. 491
trial in actions at law, serving to distinguish them from suits
in equity and admiralty,
See Parsons v.
Bedford, 3 Pet. 433,
28 U. S. 446,
and to safeguard the jury's function from any encroachment which
the common law did not permit.
Thus interpreted, the Seventh Amendment guarantees that suitors
in actions at law shall have the benefits of trial of issues of
fact by a jury, but it does not prescribe any particular procedure
by which these benefits shall be obtained, or forbid any which does
not curtail the function of the jury to decide questions of fact as
it did before the adoption of the amendment. It does not restrict
the court's control of the jury's verdict, as it had previously
been exercised, and it does not confine the trial judge, in
determining what issues are for the jury and what for the court, to
the particular forms of trial practice in vogue in 1791.
Thus, this Court has held that a federal court, without the
consent of the parties, may constitutionally appoint auditors to
hear testimony, examine books and accounts, and frame and report
upon issues of fact, as an aid to the jury in arriving at its
verdict,
Ex parte Peterson, 253 U.
S. 300; it may require both a general and a special
verdict and set aside the general verdict for the plaintiff and
direct a verdict for the defendant on the basis of the facts
specially found,
Walker v. New Mexico & Southern Pacific R.
Co., 165 U. S. 593, and
it may accept so much of the verdict as declares that the plaintiff
is entitled to recover, and set aside so much of it as fixes the
amount of the damages, and order a new trial of that issue alone,
Gasoline Products Co., Inc. v. Champlin Refining Co.,
283 U. S. 494. Yet
none of these procedures was known to the common law. In fact, the
very practice, so firmly imbedded in federal procedure, of making a
motion for a new trial directly to the trial judge, instead
Page 293 U. S. 492
of to the court en banc, was never adopted by the common law.
[
Footnote 2] But this Court has
found in the Seventh Amendment no bar to the adoption by the
federal courts of these novel methods of dealing with the verdict
of a jury, for they left unimpaired the function of the jury to
decide issues of fact, which it had exercised before the adoption
of the amendment.
Compare Nashville, C. & St.L. Ry. Co. v.
Wallace, 288 U. S. 249,
288 U. S.
264.
If we apply that test to the present case, it is evident that
the jury's function has not been curtailed. After the issues of
fact had been submitted to the jury and its verdict taken, the
trial judge was authorized to entertain a motion to set aside the
verdict and, as an incident, to determine the legal limits of a
proper verdict. A denial of the motion out of hand, however
inadequate the verdict, was not an encroachment upon the province
of the jury as the common law defined it. It would seem not to be
any the more so here because the exercise of the judge's discretion
was affected by his knowledge of the fact that a proper recovery
had been assured to the plaintiff by the consent of the defendant.
Thus, the plaintiff has suffered no infringement of a right by the
denial of his motion. The defendant has suffered none because he
has consented
Page 293 U. S. 493
to the increased recovery, of which he does not complain.
It is upon these grounds, as well as the further one that the
denial of a new trial may not be reviewed upon appeal,
see
Arkansas Valley Land & Cattle Co. v. Mann, supra,
130 U. S. 75,
that this Court has upheld the practice of the remittitur.
Recognized more than a century ago by Mr. Justice Story in
Blunt v. Little, 3 Mason, 102, 107, it has been
consistently used in the federal trial courts, and as consistently
upheld in this Court.
Northern Pacific R. Co. v. Herbert,
116 U. S. 642,
116 U. S.
646-647;
Arkansas Valley Land & Cattle Co. v.
Mann, supra, 130 U. S. 72-76;
Kennon v. Gilmer, 131 U. S. 22,
131 U. S. 29-30;
Clark v. Sidway, 142 U. S. 682,
142 U. S. 690;
Lewis v. Wilson, 151 U. S. 551,
151 U. S. 555;
Koenigsberger v. Richmond Silver Mining Co., 158 U. S.
41,
158 U. S. 52;
German Alliance Ins. Co. v. Hale, 219 U.
S. 307,
219 U. S. 312.
Cf. Gila Valley R. Co. v. Hall, 232 U. S.
94,
232 U. S.
104-105;
Tevis v. Ryan, 233 U.
S. 273,
233 U. S. 290;
Union Pacific R. Co. v. Hadley, 246 U.
S. 330,
246 U. S. 334.
In
Arkansas Valley Land & Cattle Co. v. Mann, supra,
at page
130 U. S. 74, in
considering at length the constitutional question, this Court
said:
"The practice which this Court approved in
Northern Pacific
Railroad v. Herbert is sustained by sound reason, and does
not, in any just sense, impair the constitutional right of trial by
jury. It cannot be disputed that the court is within the limits of
its authority when it sets aside the verdict of the jury, and
grants a new trial, where the damages are palpably or outrageously
excessive.
Ducker v. Wood, 1 T.R. 277;
Hewlett v.
Cruchley, 5 Taunt. 277, 281; authorities cited in Sedgwick on
Damages, 6th ed. 762, note 2. But, in considering whether a new
trial should be granted upon that ground, the court necessarily
determines, in its own mind, whether a verdict for a given amount
would be liable to the objection that it was excessive. The
authority of the court to determine whether the damages are
excessive implies authority to
Page 293 U. S. 494
determine when they are not of that character. To indicate,
before passing upon the motion for a new trial, its opinion that
the damages are excessive, and to require a plaintiff to submit to
a new trial, unless, by remitting a part of the verdict, he removes
that objection, certainly does not deprive the defendant of any
right, or give him any cause for complaint."
See also Kennon v. Gilmer, supra, 131 U. S. 29;
Clark v. Sidway, supra, 142 U. S. 690;
Gila Valley R. Co. v. Hall, supra, 232 U. S. 104;
Belt v. Lawes, L.R. 12 Q.B.D. 356, 358.
All that was there said is equally applicable to the present
denial of a motion to set aside the verdict as inadequate. The
defendant, who has formally consented to pay the increased amount,
cannot complain. The plaintiff 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. The fact that in one case the
recovery is less than the amount of the verdict, and that in the
other it is greater, would seem to be without significance. For in
neither does the jury return a verdict for the amount actually
recovered, and in both the amount of recovery was fixed not by the
verdict, but by the consent of the party resisting the motion for a
new trial.
The question with which we are now concerned -- what
considerations shall govern an appellate review of this
discretionary action of the trial court -- is one unknown to the
common law, which provided for no such review. We are afforded but
a meager and fragmentary guide if our review is to be controlled by
the Seventh Amendment, read as though it had incorporated by
reference the particular details of English trial practice
exhibited by the law books in 1791. We know that, as late as the
middle of the eighteenth century, the English courts, by directing
an increase of the judgment where the verdict was thought to be
inadequate, had exercised an extraordinary measure
Page 293 U. S. 495
of control over the verdict of the jury in cases of mayhem and
battery, and that the practice of denying a new trial upon a
remittitur had received some recognition in the English courts.
Belt v. Lawes, supra, 359;
Watt v. Watt, [1905]
A.C. 115, 122. But in no recorded case does it appear that any
English judge had considered the possibility of denying a new trial
where the defendant had consented to increase the amount of
recovery.
If our only guide is to be this scant record of the practice of
controlling the jury's verdict, however fragmentary the state of
its development at this period, and if we must deny any possibility
of change, development, or improvement, then it must be admitted
that search of the legal scrap heap of a century and a half ago may
commit us to the incongruous position in which we are left by the
present decision: a federal trial court may deny a motion for a new
trial where the plaintiff consents to decrease the judgment to a
proper amount, but it is powerless to deny the motion if its
judgment is influenced by the defendant's consent to a comparable
increase in the recovery.
But I cannot agree that we are circumscribed by so narrow and
rigid a conception of the common law. The Judiciary Act of 1789, c.
20, 1 Stat. 73, which impliedly adopted the common law rules of
evidence for criminal trials in federal courts, and which gave to
the federal courts jurisdiction of equity as it had then been
developed in England, and the state constitutions which adopted the
common law as affording rules for judicial decision, have never
been construed as accepting only those rules which could then be
found in the English precedents. When the Constitution was adopted,
the common law was something more than a miscellaneous collection
of precedents. It was a system, then a growth of some five
centuries, to guide judicial decision. One of its principles,
certainly as important as any other, and that which assured the
possibility of the continuing vitality and usefulness of the
Page 293 U. S. 496
system, was its capacity for growth and development, and its
adaptability to every new situation to which it might be needful to
apply it. "This flexibility and capacity for growth and adaptation
is," as the Court declared in
Hurtado v. California,
110 U. S. 516,
110 U. S. 530,
"the peculiar boast and excellence of the common law."
See also
Holden v. Hardy, 169 U. S. 366,
169 U. S.
385-387;
Twining v. New Jersey, 211 U. S.
78,
211 U. S. 101;
Funk v. United States, 290 U. S. 371,
290 U. S.
380-386.
This Court has recently had occasion to point out that the
common law rules, governing the admissibility of evidence and the
competency of witnesses in the federal courts are not the
particular rules which were in force in 1791, but are those rules
adapted to present day conditions, "in accordance with present day
standards of wisdom and justice, rather than in accordance with
some outworn and antiquated rule of the past."
Funk v. United
States, supra, 290 U. S. 382;
see also Wolffe v. United States, 291 U. S.
7,
291 U. S. 12;
Holden v. Hardy, supra, 169 U. S.
385-387.
The common law is not one system when it, or some part of it, is
adopted by the Judiciary Act and another if it is taken over by the
Seventh Amendment. If this Court could thus, in conformity to
common law, substitute a new rule for an old one because it was
more consonant with modern conditions, it would seem that no
violence would be done to the common law by extending the principle
of the remittitur to the case where the verdict is inadequate,
although the common law had made no rule on the subject in 1791,
and that we 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.
See Belt v. Lawes, supra, 358.
Appellate federal courts, although without common law precedent,
have not hesitated to resort to the remittitur where, by its use,
the necessity of a new trial could justly
Page 293 U. S. 497
be avoided.
Bank of Kentucky v.
Ashley, 2 Pet. 327,
27 U. S. 329;
Phillips & Colby Construction Co. v. Seymour,
91 U. S. 646,
91 U. S. 656;
Hopkins v. Orr, 124 U. S. 510,
124 U. S. 514;
Washington & Georgetown R. Co. v. Harmon, 147 U.
S. 571,
147 U. S. 590;
Hansen v. Boyd, 161 U. S. 397,
161 U. S.
411-412. The trial judge who denies a motion for a new
trial because the plaintiff has consented to reduce, or a defendant
has consented to increase, the amount of the recovery does no more
than when, sitting in equity, he withholds relief upon the
compliance with a condition the performance of which will do
substantial justice.
See Harrisonville v. Dickey Clay Co.,
289 U. S. 334,
289 U. S.
338.
To me it seems an indefensible anachronism for the law to reject
the like principle of decision, in reviewing on appeal denials of
motions for new trial, where the plaintiff has consented to
decrease the judgment or the defendant has consented to increase it
by the proper amount, or to apply it in the one case and reject it
in the other. It is difficult to see upon what principle the denial
of a motion for a new trial, which for centuries has been regarded
as so much a matter of discretion that it is not disturbed when its
only support may be a bad or inadequate reason, may nevertheless be
set aside on appeal when it is supported by a good one: that the
defendant has bound himself to pay an increased amount of damages
which the court judicially knows is within the limits of a proper
verdict.
On this question, the decisions of the English courts since the
adoption of the Constitution do not have the force of precedents;
they are of weight only so far as they are persuasive. It is enough
to say that when, in 1905, the House of Lords in
Watt v. Watt,
supra, overruled
Belt v. Lawes, supra, and terminated
the practice of the remittitur, it did not comment on the fact that
it was reviewing an exercise of discretion in the denial of a new
trial. So far as appears, it did not consider, in the
Page 293 U. S. 498
light of any legal analogy, whether the denial of the motion
because of the plaintiff's consent could be deemed in any proper
sense an abuse of discretion.
THE CHIEF JUSTICE, MR. JUSTICE BRANDEIS, and MR. JUSTICE CARDOZO
concur.
[
Footnote 1]
The power of the English appellate courts to review such action
has been enlarged by statute, and the motion itself must be made to
the Court of Appeal. Supreme Court of Judicature Act, 1875, 38
& 39 Vict., c. 77, Order 58; Rules of the Supreme Court of
Judicature, Order 39.
See Fairmount Glass Works v. Cub Fork
Coal Co., 287 U. S. 474,
287 U. S.
482.
[
Footnote 2]
In England, before the adoption of the Seventh Amendment, the
motion was made not to the trial judge, but to the court sitting en
banc. Blackstone's Commentaries v. 3, p. 391; Tidd's Practice v. 2,
pp. 819-821. By the Supreme Court of Judicature Act, 1875, 38 &
39 Vict., c. 77, Order 58,
see Order 39 of Rules of
Supreme Court of Judicature, the motion was required to be made to
the Court of Appeal, from whose decision an appeal might be taken
to the House of Lords.
The original organization of the federal courts was capable of
use in such a fashion that the motion could be made to the circuit
court, something in the nature of a court en banc, but no such
practice developed. Judiciary Act of 1789, c. 20, §§ 4, 17, 1 Stat.
73, 74, 83; Hinton, Power of Federal Appellate Court to Review
Ruling on Motion for New Trial, 1 Univ. of Chicago Law Rev. 111,
113.