The opinion
Mr. Justice Smith
dissenting.
I respectfully dissent. The per curiam opinion by the United States Supreme Court rendered on October 27, 1958, conclusively forecloses the question of remittitur against the petitioner. The majority seems to attach considerable significance to the action of the Supreme Court in denying relief by certiorari. I think the majority has again misconstrued the opinion of the Supreme Court just as this Court misconstrued the opinion in Deen v. Gulf, Colorado & Santa Fe R. Co., 358 U.S. 925 . The majority still overlooks the fact that this is a case brought under the Federal Employers Liability Act. The Congress provided by the adoption of such Act that the jury would determine the damages. The Act provides for what we commonly call comparative negligence. In other words, the Act provides that in assessing the damages in the event of negligence, etc., on the part of the defendant, the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee. See 45 U.S.C.A., Sec. 53 , Apr. 1908, c. 149, Sec. 3, 35 Stat. 66 .
*242 I think the Act does not contemplate an issue of excessive verdicts or the granting of a remittitur by the trial court or the Court of Civil Appeals. See Neese v. Southern Railway Company (1955), 350 U.S. 77 , 76 Sup. Ct. 181.
To allow a remittitur would nullify a material portion of the Act. It, no doubt, was the intention of the Congress to place the power of evaluating evidence solely with the jury. The per curiam opinion unquestionably, although it did not expressly hold, intended to foreclose any action by this Court or the Court of Civil Appeals, except to require that judgment be entered for Deen in accordance with the jury verdict. The opinion expressly reverses the action of this Court wherein the case was remanded to the Court of Civil Appeals with directions to adjudicate, upon its own independent evaluation of the evidence and wholly apart from the judgment of the Supreme Court of the United States, whether or not the jury finding of negligence" of the defendant is so against the weight and preponderance of the evidence as to require a new trial in the interest of justice, and, upon the basis of its adjudication, to either affirm the judgment of the trial court or grant a new trial. I am now convinced that all issues have been foreclosed and that this litigation should come to an end. The matter can be expedited by following what seems to me to have been the clear intent of the United States Supreme Court. See Pennell v. B. & O. R. R. Co., 13 Ill. App. 2d 433 , 142 N.E. 2d 497 . To consider the question of remittitur necessarily would require evaluating evidence and reviewing the weight of the evidence. The last cited case dealt with the problem, and, in holding against the contention of the petitioner in the instant case, said, in part:
“* * * To consider this issue would necessarily require reviewing the weight of the evidence since it is obvious there is an evidentiary basis for a substantial verdict. The recent case of Neese v. Southern Railway Company, 350 U.S. 77 , 76 Sup. Ct. 131, 100 L. Ed. 60 , lends support to this view. In that case, the Court of Appeals determined in a carefully considered and actuarially supported opinion that the verdict was excessive. The Supreme Court in a per curiam opinion, simply concluded that the record supported the jury’s verdict and reversed the Court of Appeals. While there was no clarifying discussion of the scope of review of the issue of excessiveness of the verdict in intermediate appellate courts, the result reached indicates the view of the Supreme Court on such issue. In addition, our examination of the cases reaching the U.S. Supreme Court touching on the issue of excessiveness of the verdict reveals no objective *243 criteria against which an intermediate appellate court might weigh the exercise of discretion by the trial court in handling such issue. Nor has the Congress defined the outer limits of recovery in such cases. Therefore, in the light of the Harsh case, and in the absence of any approved standards or criteria by which a verdict may be adjudged either reasonable or excessive or so large as to indicate prejudice of the jury, this court cannot determine the trial court’s treatment of this issue to be erroneous.”
I would affirm the judgment of the trial court.
Opinion delivered November 19, 1958.
Rehearing overruled December 10, 1958.