Charlie E. May v. Ellis Trucking Co., Inc.

PER CURIAM. In a suit for personal injuries arising from an automobile accident, appellant was awarded a jury verdict of $42,-500. On motion for a new trial, the-district court entered judgment for $25,-000 without obtaining the consent of appellant, concluding that in view of the testimony on the extent of injury the-“verdict was so excessive as to shock the conscience of the Court.” There-is no question under these circumstances-that the trial judge had the discretionary power to order a new trial, but the district court committed error by reducing the verdict without giving appellant the-option of either accepting a remittitur or of having a new trial. Kennon v. Gilmer, 1889, 131 U.S. 22, 27-30, 9 S.Ct. 696, 33 L.Ed. 110; Dimick v. *527 Schiedt, 1935, 293 U.S. 474, 482-485, 55 S.Ct. 296, 79 L.Ed. 603. Upon remand the district court will have the power either to grant or deny a new trial generally or to deny a new trial on the condition that appellant accept a judgment for a lesser amount than the jury verdict. The judgment is set aside and the case is remanded to the district court for reconsideration of the motion for a new trial.