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Baxter v. Fairmont Food Co.

Decided: October 21, 1977.


For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Hughes, C.J.


This appeal projects again the sometimes troublesome question of the extent and nature of judicial power, whether that of a trial or appellate court, to overrule a jury verdict, not on the basis of trial error on questions of law, but because of claimed discordance between the verdict and the evidence on which it was based.

We consider here a ruling by the Appellate Division which (1) vacated a remittitur as to damages, ordered by the trial court and accepted by plaintiff, and (2) reinstated the jury verdict fixing damages at $300,000. We believe that Appellate Division action was eminently correct, and so we affirm its decision.

The issue arose in this way. Plaintiff, a motorcyclist, sustained severe injuries in an intersectional collision with defendants' truck, allegedly operated illegally and negligently through a red light. The first trial resulted in a verdict for the plaintiff, found, on motion, to be so manifestly inadequate as to represent a compromise verdict; hence a new trial as to liability and damages was ordered. At the second trial plaintiff again prevailed as to liability and was awarded damages of $300,000. Defendant then moved for a new trial as to both liability and damages or, in the alternative, for a remittitur of damages. While upholding the verdict as to liability, the trial court reduced the award to $150,000 with the proviso that if plaintiff, in writing, accepted the reduced amount within ten days, defendant's motion for new trial would be denied. If plaintiff did not accept the reduced judgment, the motion for a new trial would be deemed granted, limited to the issue of damages.

Plaintiff accepted the reduced judgment. Defendant filed an appeal from the judgment as reduced. Plaintiff then cross-appealed from the remittitur ordered by the trial court.

The Appellate Division found no merit in any of the defendant's contentions as to trial error. However, on plaintiff's cross-appeal, after reviewing the extent of his very serious injuries, it concluded that the trial court had mistakenly exercised its discretion in granting defendant's motion for a remittitur and in so doing had improperly invaded the province of the jury. Accordingly, as noted, it vacated the remittitur and reinstated the jury verdict fixing damages at $300,000. This Court granted defendant's petition for certification solely as to the issue of the validity of the Appellate Division's reinstatement of the jury verdict as to damages.

Simplification of the issue might be aided by stating and separating factors on which there is no dispute. We have no misgivings about the remittitur practice, long in effect in this jurisdiction, and increasingly valuable to the modern administration of justice, confronted as the courts are today by unprecedented litigation caseloads.*fn1 As urged by Justice Proctor in Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330-31 (1970), the practice should be encouraged at both trial and appellate levels to avoid the unnecessary expense and delay of new trial. Moreover, plaintiff's initial acceptance of the remittitur is not significant. Had defendant bowed to its conditional mandate, that acceptance would have been effective. But once it was challenged by defendant's appeal, the law properly reverts the parties to "square one" and no significance, as though by

some sort of quasi-admission, attaches to the remittitur acceptance by plaintiff. Mulkerin v. Somerset Tire Service, Inc., 110 N.J. Super. 173 (App. Div. 1970).

Similarly, the norms dealing with trial court supervision of jury response, specifically its review of a jury's assessment of damages, are clearly set forth in Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227 (1971). Recently, we had occasion to restate the test to be applied by a trial court where a remittitur of the jury award of damages is sought. In essence, it is that a trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust. Sweeney v. Pruyne, 67 N.J. 314, 315 (1975). Put in another way, the judge cannot validly intrude unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Except in one respect to be mentioned later, the basic criteria for appellate court intervention are not significantly different. One such was simply phrased for this Court by Justice Hall (in reversing a trial court denial of a new trial motion) as follows:

We are satisfied beyond any doubt that the verdict was against the weight of the evidence so as to constitute a miscarriage of justice * * *. [ Dolson v. Anastasia, 55 N.J. 2, 12 (1969)].

As pertaining to damage awards, Justice Proctor cautioned in Fritsche that "[v]erdicts should be upset for excessiveness only in clear cases." 55 N.J. at 330.

While sometimes difficult of application to a given factual base, these rules recognize that all judges, whether trial or appellate, are human and that the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural ...

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