Podgorski v. Kerwin

Pee Curiam. This is an action for personal injuries. There was a verdict fox the plaintiff. A motion for a new trial upon the grounds of insufficiency of evidence and of excessive damages, as well as upon other grounds, was denied. The order denying the motion was affirmed on appeal.1 On the going down of the remittitur the defendant made a motion for a new trial upon the ground of newly discovered evidence. The proposed- new evidence bore upon the amount of damages only, and, if it was of the character suggested in the supporting affidavits, tended to show that there had been a better recovery than was anticipated and that the damages were excessive. These affidavits were opposed by counter affidavits. The record was such that the trial court might have granted or refused a new trial. Deeming the damages excessive, in view of the new evidence promised, it granted a new trial, unless the plaintiff consented to a reduction of the verdict from $7,000 to $5,000. The plaintiff consented. The defendant appeals from the order. The question is whether it was error against the defendant to permit the plaintiff to avoid a new trial by a reduction of the verdict. The condition in such an order does not harm the plaintiff, for he need not consent to a reduction. The law is thoroughly established in this state, in harmony with authority elsewhere, that the trial court or this court may grant a new trial for excessive or inadequate damages and mate it conditional upon the party against whom the motion is directed consenting to a reduction or an increase of the verdict. Dunnell, Minn. Dig. and 1916 Supp. §§ 7138, 7141. In such a case the court does not trench upon the province of the jury nor deny the party seeking .to retain the verdict the right to the finding of a jury. It merely corrects error. The practice adopted works well, tends to the speedy termination of litigation and results in sub [105] stantial justice. This court encourages the practice and has grown in liberality within the last few years. In Bremer v. Minneapolis, St. P. & S. S. M. Ry. Co. 96 Minn. 469, 105 N. W. 494, an excessive verdict, influenced by improper remarks of counsel, was conditionally reduced, but in Floody v. Great Northern Ry. Co. 102 Minn. 81, 112 N. W. 875, 1081, 13 L.R.A.(N.S.) 1196, the court said that the misconduct of a jury in visiting the locus in quo during the trial could not be cured by a reduction. In Ewing v. Stickney, 107 Minn. 217, 119 N. W. 802, language is used justifying the inference that newly discovered evidence presented as a ground for a new trial may result in a conditional reduction. It was directly so held in Darnell v. Krouse, 134 Fed. 509, and Tyler v. North American T. & T. Co. 24 Wash. 252, 64 Pac. 162, is persuasive authority. The practical advantages resulting from a reduction outweigh technical objections, and we hold that when a motion for a new trial, based on newly discovered evidence, is directed to the excessiveness of the verdict, a new trial may be granted conditional upon a consent to a' reduction. Order affirmed. Footnotes [1] [144 Minn. 313]