Willbanks v. Laster , 211 Ark. 88 ( 1947 )

I agree with all of the opinion of the majority in this case, except the last 12 words thereof, which read:

". . . and the judgment will be reduced to and affirmed for that amount."

I think the better order would have been to reverse and remand the case for a new trial, unless a remittitur be entered. This may seem to be quibbling, but I regard it as vital to the sanctity of our jury system.

This present case is the first instance in which this court has affirmed a reduced judgment in a personal injury case since I became a member of the court on January 1, 1943. In all other cases the court has allowed the plaintiff the alternative of (1) entering a remittitur and accepting affirmance, or (2) having a reversal and new trial. But in the present case the majority is reducing the verdict and then affirming it as reduced. As I see it, the majority is thus (1) establishing itself as the jury and rendering a verdict; and (2) sitting as an appellate tribunal and affirming the judgment that it has rendered.

I am aware that there are cases in which this court has followed the same procedure as is followed here. One such case is Standard Coffee Co. v. Watson, 198 Ark. 592,129 S.W.2d 948. In that case there was a dissenting opinion by Mr. Justice MEHAFFY; and the following paragraph, copied from the dissenting opinion, expresses my views in the present case:

"I think that if we reach the conclusion that there is not substantial evidence to support the amount of the verdict, the only thing we can rightfully do is to fix an amount which we think is not excessive and give the appellee an opportunity to enter a remittitur, or reverse the judgment and remand the case for a new trial."

Mo. Pac. R. v. Newton, 205 Ark. 353, 168 S.W.2d 812 was the unanimous opinion of this court; and therein are listed some of the earlier cases on reduction of excessive verdicts. The opinion contains this language:

"Yet, appellate judges have a sworn duty to perform; and when, after reviewing all of the evidence in a case, the appellate court reaches the conclusion that the verdict is grossly excessive, then it is the sworn duty of the appellate court to indicate the correct amount of the verdict. Just as we would reverse a case because of errors in instructions, so, the case should be reversed if the verdict is grossly excessive. That is the recognized practice."

There are listed cases beginning with Dodds v. Roane,36 Ark. 511 (written by Chief Justice ENGLISH), and other cases on down to S. L. I. M. S. Ry. Co. v. Brabbzson,87 Ark. 109, 112 S.W. 222 (written by Mr. Justice McCULLOCH). In all of these cases the order was that, if the remittitur be entered, the judgment would be affirmed, otherwise, the judgment would be reversed and the cause remanded for a new trial. Mo. Pac. v. Newton, supra, was a unanimous opinion; so the majority there approved the wording of the last paragraph of that opinion, as follows:

"The plaintiff recovered a verdict for $2,000. Under the record in this case, any verdict in excess of $1,000 would be grossly excessive; and, if, within fifteen juridical days, a remittitur of $1,000 is entered by the appellee, then the case will be affirmed; otherwise, the cause is reversed and remanded for a new trial because of the excessive verdict."

It was my thought that the language last quoted settled the procedure that this court would follow on this question. Now, the majority is departing from that procedure, and reverting to the procedure pursued by the majority in Standard Coffee Co. v. Watson, supra; and — as I see it — denying to the appellee her right to a new trial where she might show substantially stronger facts to support a larger verdict.

I therefore dissent, since I consider such denial of a new trial to the appellee to be an invasion of the sanctity of our jury system.