# Dimick v. Schiedt > Supreme Court of the United States · January 7, 1935 · 293 U.S. 474 URL: https://www.frixlaw.com/law-library/cases/9418830 ## Case - **Full name:** Dimick v. Schiedt - **Court:** Supreme Court of the United States - **Decided:** January 7, 1935 - **Citations:** 293 U.S. 474; 95 A.L.R. 1150; 55 S. Ct. 296; 79 L. Ed. 603; 1935 U.S. LEXIS 5 - **Precedential status:** Published - **Opinion:** Dissent by Stone - **Judges:** Sutherland, Stone, Brandéis, Cardozo - **Cited by:** 705 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9418830 ## How later opinions describe it (automated extraction) - stating that "the common-law rule as it existed at the time of the adoption of the Constitution" was 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." - recognizing validity of doctrine based on historical practice in the federal courts after 1822, but observing that "it * * * may be that if the question of remittitur were now before us for the first time, it would be decided otherwise" - holding that additur violates the Constitution’s Seventh Amendment right to a jury verdict - holding that the Seventh Amendment to the United States Constitution prevents a court from increasing a jury's award or conditioning the denial of a new trial on the defendant's acquiescence to an additur - reaffirming the practice of conditionally remitting damages, but noting that where a verdict is set aside as grossly inadequate or excessive, both parties remain entitled to have a jury determine the issues of liability and the extent of injury ## Opinion text 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, 31 ; Wilson v. Everett, 139 U. S. 616, 621 ; Lincoln v. Power, 151 U. S. 436, 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, 74 ; cf. Southern Ry. Co. v. Bennett, 233 U. S. 80, 87 . *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, 31 ; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 456 ; Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98, 113 ; Wilson v. Everett, supra, 621 ; Lincoln v. Power, supra, 438 ; Luckenbach S. S. Co. v. United States, 272 U. S. 533, 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. 1 Barr v. Gratz, 4 Wheat. 213, 220 ; The Abbotsford, 98 U. S. 440, 445 ; Railroad Co. v. Fraloff, supra, 31 ; Terre Haute & Indiana Ry. Co. v. Struble, 109 U. S. 381, 384, 385 ; Fishburn v. Chicago, M. & St. P. Ry. Co., 137 U. S. 60, 61 ; Ayers v. Watson, 137 U. S. 584, 597 ; Wilson v. Everett, supra, 621 ; Luckenbach S. S. Co. v. United States, supra, 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 *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 *491 trial in actions at law, serving to distinguish them from suits in equity and admiralty, see Parsons v. Bedford, 3 Pet. 433, 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. 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 *492 of to the court en banc, was never adopted by the common law. 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 , 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 con *493 sented 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, 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, 646, 647 ; Arkansas Valley Land & Cattle Co. v. Mann, supra, 72-76 ; Kennon v. Gilmer, 131 U. S. 22, 29, 30 ; Clark v. Sidway, 142 U. S. 682, 690 ; Lewis v. Wilson, 151 U. S. 551, 555 ; Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41, 52 ; German Alliance Ins. Co. v. Hale, 219 U. S. 307, 312 ; cf. Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 94, 104, 105 ; Tevis v. Ryan, 233 U. S. 273, 290 ; Union Pacific R. Co. v. Hadley, 246 U. S. 330, 334 . In Arkansas Valley Land & Cattle Co. v. Mann, supra, at page 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. Pucker v. Wood, 1 T. R. 277; Hewlett v. Crutchley, 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 *494 determine when they are not of that character. To indicate before the 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, 29 ; Clark v. Sidway, supra, 690 ; Gila Valley, G. & N. Ry. Co. v. Hall, supra, 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 *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. Limes, supra, 359; Walt 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 centuriés, 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 *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, 530 , “ the peculiar boast and excellence of the common law.” See also Holden v. Hardy, 169 U. S. 366, 385-387 ; Twining v. New Jersey, 211 U. S. 78, 101 ; Funk v. United States, 290 U. S. 371, 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, 382; see also Wolfle v. United States, 291 U. S. 7, 12 ; Holden v. Hardy, supra, 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 pot unjust. See Belt v. Lavoes, 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 *497 be avoided. Bank of Kentucky v. Ashley, 2 Pet. 327, 329 ; Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 656 ; Hopkins v. Orr, 124 U. S. 510, 514 ; Washington & Georgetown R. Co. v. Harmon, 147 U. S. 571, 590 ;. Hansen v. Boyd, 161 U. S. 397, 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, 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 trials, 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. Lemes, 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 *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 Brandéis and Mr. Justice Cardozo concur. 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, 482, note 9 . 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 Viet., 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, e. 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 L. Rev. 111, 113. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9418830. Public record. Not legal advice.