Kinnear v. General Mills

COX, Justice. Three cases, of which this is one, to recover damages for personal injuries were tried together. Verdicts were returned for the plaintiffs, the amount of the plaintiff's in the case at bar being $25,000 which was the ad damnum or her writ. After the jury had retired to consider the cases, it returned to the court room and propounded the following question: 'Your Honor, we would like to know if we can award more damages to a plaintiff than said plaintiff asked for in the suit?' The Judge replied: 'You have asked a question. I do not care to read it aloud in the courtroom. I will put it in the record. The answer to the question is yes. Do you understand it?' The foreman of the jury replied: 'Yes.' 'The defendant seasonably claimed an exception in each case to the court's answer 'Yes' to the question propounded by the jury as to whether they could find more than the amount claimed in a plaintiff's writ.' Motion for new trial was made in each case for the reasons assigned that the verdict was against the evidence and the weight of the evidence and that the amount was excessive. At the hearing on the motions, the following requests for rulings were filed in each case: '1. As matter of law the finding as to damages is so excessive and so violently contrary to the evidence as to taint the verdict as an entirety and require a complete new trial. 2. As matter of law the finding as to damages is so excessive and so violently contrary to the evidence as to require the court, in the exercise of its discretion, to set the verdict aside and grant a complete new trial.' These requests were denied subject to the defendant's exception. In the case at bar the verdict was adJudged excessive by $5,000 and it was ordered that unless the plaintiff, within ten days, should remit that sum, the verdict would be set aside. G.L.(Ter.Ed.) c. 231, § 127. The plaintiff seasonably remitted. The defendant excepted to the foregoing order and 'to the denial of its motion for a new trial.' Finally the defendant filed a motion, which was denied subject to its exception, to set aside the verdict, and for a new trial, on the ground that, after remittitur, the verdict was excessive. The defendant's exception to the denial of its motion for a directed verdict has not been argued and is treated as waived. 1. We are of opinion that there was no error in dealing with the question propounded by the jury. It is true that damages are limited by the ad damnum and a jury may be so told, although it is within the power of the Judge to allow a motion to increase the ad damnum. And where a Judge contemplates allowing such a motion he may properly instruct the jury to find the damages without regard to the ad damnum. It appears in the bill of exceptions that in one of the companion cases counsel for the plaintiff particularly requested that the writ be taken by the jury. In the other companion case a motion was made before the jury was impanelled to increase the ad damnum, but this was not acted upon before verdict. No motion to increase the ad damnum in the case at bar was made. The writ in each case went to the jury. The significance of these facts may subsequently appear.