
    The C. & M. R. R. Co. v. Himrod Furnace Co.
    On error to reverse a judgment in damages, for a breach, of contract, where a motion for a new trial, based on the ground of an erroneous charge, and because the verdict is unsupported by the law and the evidence, is overruled, and the evidence is made part of the record, and where it appears that the verdict is too large, by reason of error of the court in its rulings, or of the jury, and there is nothing necessarily implying passion or prejudice in the jury, the court may, where it can be done, ascertain from the evidence the amount of such excess, and may, on a remittitur of the same being entered, affirm the judgment as modified.
    Motion to modify judgment.
    
      R. P. Ranney and S. Burke, for the motion:
    All evidence to prove damages after the suit was commenced was excluded, and for tlie two years ensuing another action is pending. And yet upon the trial, which if not a farce was certainly not a model, a verdict and judgment were rendered for twice as much as the party claimed to be injured when the suit was commenced. Upon this, error was brought, the execution superseded, and upon reservation to this court, it was found that some of the rulings of the court below were erroneous, to the prejudice of the plaintiff in error many thousands of dollars. We state this to be the fact, although no such information is furnished by the entry made in the ease. From that, it does not appear that any error was found; but rather that the defendant, from generosity or a stricken conscience for having got twice as much as it had the face to ask for, voluntarily abandoned about one-sixth of it, and thereupon the court affirmed the erroneous judgment for the remaining five-sixths.
    What we ask, as matter of right, is very plain and simple— that the entry shall show the truth ; that the judgment is found to be erroneous and is therefore reversed ; and that the legal consequences of a reversal shall be ordered, which we claim to be remanding the case for another trial.
    We base ourselves upon the positive provisions of the statutes, which alone give jurisdiction to this court in error cases, and we insist that such a construction shall be given as will harmonize them, and make them consistent with the paramount right of jury trial, secured by the constitution and laws. We do not deny that the court may, in a proper case, reverse in part and affirm in part; but we do deny that an erroneous judgment can be left unreversed, either in whole or in part, and a judgment of affirmance be entered; and we do deny that this indivisible claim made in the pleadings, and carried into the verdict and judgment, can, for the first time, be divided in the error proceeding, by an examination of controverted parol evidence found in a bill of exceptions, so as to authorize a reversal and affirmance in part, or that in this manner the right of the party to a new jury trial can be avoided.
    If the judgment is found to be erroneous it must be reversed, and if “ reversed either in whole or in part,” the statute declares “ the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment.”
    If there was error, the issue must be found for the plaintiff in error, leaving but one of two courses to be pursued, either to render such judgment as the court below should have rendered, or remand the case for a new trial, and in this case, cither course would result in exactly the same thing.
    A new trial was moved, alleging, amongst other causes, “ error of law occurring at the trial, and excepted to by the party making the application,” and “ error in the assessment of the amount of recovery,” the action being upon contract, and the amount being “unreasonable and excessive.”
    In such cases, the positive injunction of the statute is that “ the former verdict, report or decision shall be vacated, and a new trial granted on the application of the party aggrieved.”
    Language contains no plainer words, or more imperative in their import. It was the duty of the court below to set aside or vacate that verdict, and grant a new trial; and exactly what that court should have done, this court is bound to do. No curative plasters were applied there, and none can be made legally available here.
    But notwithstanding these very plain provisions, imposing . positive obligations, it is said that this court has so construed them as to authorize the affirmance of an erroneous judgment, if the party will remit from it enough to reduce it to what the court thinks, from an examination of the parol evidence found in the bill of exceptions, he might reasonably have recovered.
    And for this purpose, counsel cite us to the cases of Doolittle v. McCullough, 7 Ohio St. 299; Durrell v. Boyd, 9 Ohio St. 72 ; and Pendleton St. R. R. v. Rahman, 22 Ohio St. 446, saying at the same time, that “ there are many other cases where the practice is adopted.” We have examined the cases cited, and some of the “ many other cases,” and without undertaking to reconcile them all, much less to approve what is said in some of them, we have no hesitation in saying that no one of them has gone the length of supporting the proposition above stated.
    
      Doolittle v. McCullough was an action of trover, commenced before the codo, and tbe only error was in giving damages for tbe whole value of the property, when it stood conceded, and was shown by a written instrument, that a liquidated amount ($250) had been paid by the defendant on account of a purchase of the property. The court thought this equivalent to a restoration of so much of the property, and it being shown that, pending the error proceeding, the plaintiff had remitted that amount from his judgment, the court refused to reverse it.
    To allow the entry to stand, as now made, is not only to antagonize several positive provisions relating to proceedings in error, but to take from the plaintiff in error important legal rights.
    
      First. Jt presents the anomaly of finding the issue of error or no error with the plaintiff, and then, ignoring that fact, giving judgment for the defendant.
    
      Second. If the judgment is reversed the plaintiff recovers his costs; and, if affirmed, the statute is equally imperative that the defendant shall recover costs.
    
      Third. If the judgment is reversed, the condition of the supersedeas bond is complied with, and no liability arises against the surety, while an affirmance leaves him liable for “ the condemnation money and costs.”
    
      Fourth. An affirmance leaves the judgment below to draw interest, compounded upon any interest included in the amount of the judgment below, while a reversal, even upon the rendition of another judgment here, or upon a new trial, would not, as matter of law, authorize any interest to be included, much less compound interest. This consideration alone amounts to a difference of several thousand dollars, and leaves the lien of a confessedly erroneous judgment to stand against all the property of the plaintiff in error.
    
      Fifth. A reversal wholly vacates the judgment below, with all its incidents of lien, &c., while a judgment rendered here, if a case was made for it, would be the judgment of this court, and take effect only from its date.
    
      Sixth. No case whatever is made for invoking the statutory power to render a judgment here, unless the court is prepared to say that in every case whore the judgment is found to be erroneous, and a bill of exceptions embodies the testimony given at the trial, that will be canvassed and an amount found by the court as a basis upon which to render a judgment. That would simply annihilate the right to another jury trial, and to produce additional evidence in support of the defense.
    It is a wholly unfounded assumption that there is anything in the bill of exceptions, or other parts of the record, to show how the jury made up their verdict, or the amount of the different elements entering into it. The testimony relating to docking the ore, as well as that tendered for carriage, covers fifty or sixty pages in print, and is of the most uncertain, indefinite and even contradictory character.
    Solomon’s three things past finding out, would .constitute absolute certainties, in comparison with the ability of any man to declare that he had found out the exact amounts in dollars and cents of the different items of damages which make up 'this verdict.
    Indeed, no two men can take the evidence now, and, com bining calculation and conjecture, come within hundreds and probably thousands of dollars of reaching the same result, either as to what was or should have been allowed.
    The only thing certain is, that the aggregate returned was many thousands, upon any hypothesis, greater than it should have been, measured by the plaintiff’s own claim at the commencement of the action. But how much of this, that, or the other entered into it—how much should be credited to passion, prejudice, or stupidity, no man can tell
    
      S. O. Griswold, for defendant in error:
    In reply to the argument of Judge Ranney, we beg leave to suggest that, in his complaint, that the entry as it now stands does not show that any error had intervened in the record, he ignores what the court had previously done, which shows that the remittitur was not volunteered, but was filed by the suggestion and allowance of this court on finding that a portion of the damages were excessive and not authorized by law, as a condition of the affirmanee of the balance of the judgment. The entry made is in accordance with the usual practice in such cases.
    The only new point made in the brief is the argument drawn from the phraseology of the section of the code in regard to new trials. The logic of this argument would lead to the conclusion that the trial court, after verdict, could not permit a remittitur and enter a judgment for the balance of the verdict. It is submitted that the provisions of the code as to a new trial do not differ from those of the old practice act, in as far as the power of the court is concerned. The code specifically defines the causes for granting a new trial. In the old practice act the causes were simply stated to be those for which courts at common law had been accustomed to grant new trials, and when one of these was found to exist, the court was required to grant a new trial, and the cause was remanded for that purpose. Sections 114, 115 and 116. The old modes and the code do not differ, so far as the action of the court is concerned, and, as we have shown in our printed brief, this court, from the earliest days to the present time, has upheld the practice of permitting a remittitur after verdict in cases where the verdict could thus be corrected, whether the error intervened from the misdirection of the court, the admission of improper evidence or the exclusion of evidence, or when the damages were excessive from an improper weighing of the evidence. The learned gentleman admits it has been so held by this court, but suggests that the present case goes farther than any other. It is submitted that he certainly does not have in mind all the cases which appear in the reports.
    
      We desire to specially notice his criticism of the case of McCullough v. Doolittle, which he passes by with the remark that it was a case begun before the adoption of the code. In view of the fact that sections 6726 and 6727 of the Revised Statutes are mere transcripts of the old practice act, and that the proceedings on a motion for a new trial were the same before as since the code, it was, we think, incumbent on the gentleman to show how the difference in form, or rather in name, between the issue upon a plea of not guilty to a declaration in trover, and that upon a general denial by answer to a petition under the code, setting forth the same facts, could affect the rights of the parties or the power of the court in the premises.
    The only other suggestion we desire to notice is the complaint that as the judgment now stands interest is allowed on the amount of the judgment, which was, in part, made up of interest on the sums which the defendant below had wrongfully exacted from us. The judgment, as affirmed, is for the amount which, as was shown, the plaintiff below was justly entitled to recover; and interest thereon is the inadequate compensation given by the law for the long delay and great expense to which the plaintiff below has been subjected.
    The suggestion that the record docs not show precisely the sums paid, upon which the jury based their verdict, must arise from a persistent refusal to read the testimony.
   Johnson, J.

The decision to which this motion relates will be found reported in the present volume, ante, p. 321. Por . a statement of the pleadings, reference is made to the same case, reported in 22 Ohio St. 451.

It appears, that the action below was to recover $75,000 damages for an alleged breach of contract, by which the plaintiff in error was to receive and dock at Cleveland, and to carry on its railroad from thence to Youngstown, Lake Superior ore, at an agreed rate per ton, for. a term of years. The specific breach alleged as a basis for damages, is, that after performing the contract for part of the term, the defendant refused longer to do so, and thereafter exacted, and plaintiff was compelled to pay, large sums in excess of the agreed rate, to the plaintiff’s damage $75,000. This suit was brought in 1868, nearly two. years before the term the contract had to run, had expired. Issue was joined and a final judgment thereon was before this court, and was reversed in Himrod Furnace Co. v. C. & M. R. R. Co., 22 Ohio St. 451. The case was remanded for a new trial. This resulted in a verdict for the plaintiff, assessing his damages at $59,024.22.

A motion for a new trial, based on the following grounds, was filed:

“1. The court erred in admitting evidence offered by plaintiff, to which defendant objected and excepted.
“2. In excluding and ruling-out evidence offered by the. defendant.
“3. In the charge and instructions given to the jury, and in refusing to charge and instruct the jury as requested by defendant.
“4. The damages assessed are unreasonable and excessive.
“ 5. The verdict is against and contrary to law.
“ 6. The verdict is not sustained by sufficient evidence.
“ 7. The verdict should have been for defendant instead of ' the plaintiff.”

The motion was overruled and a bill of exceptions taken, setting out the evidence, and excepting to the charges of the court, and to its refusals to charge.

To reverse the judgment on this verdict, the ease was reserved for decision in this court.

Numerous errors were assigned for such reversal. After full argument and patient consideration, none of them was found to be well taken, except that part of said verdict was unsupported by the law. See case, ante, page 321.

Thereupon the court, on an examination of the evidence, computed the amount of this erroneous part of the verdict, put the defendant in error to his election, either to have the whole judgment reversed, or to remit the amount so found to be erroneous. The remittitur of this amount being filed, the judgment, so modified, was then affirmed. The journal entry, however, only shows the remittitur and the affirmance of the judgment as modified.

The record shows that the damages proved were limited to over-charges actually paid for the services provided for in the contract before the commencement of the action, and that all evidence touching damages for the remainder of the term was excluded.

These items of over-charge may be classified as follows: 1st, amount paid to plaintiff in error for transportation m excess of the agreed rate; 2d, amounts paid to plaintiff in error for dockage, <£•<?., of the ore at Cleveland; and 3d, amounts paid to third persons at Cleveland for dockage, &c.

This third item, as ascertained by this court, including interest from date of payment to the date of the verdict, was $9,192.60, and is the sum remitted, as of the date of the judgment.

Prom an examination of the evidence, it satisfactorily appears that the verdict was the aggregated amount of all the overcharges proved belonging to each of the foregoing classes, together with interest from dates of payment to the date of the verdict. This finding was in strict accord with the charge, which was to the effect that if the plaintiff was entitled to recover, the rule of damages was the amounts paid for transportation, including dockage, with interest from the time of payment.

In the opinion of the court, the petition did not make a cause of action to recover damages for dockage, &c., paid to third persons, and, hence, the court erred in permitting proof of such payments as well as of dockage paid defendant, and in charging the jury that such payments, with interest, could bo included as part of the verdict.

This court, having found that said verdict was erroneous to the amount stated, instead of formally reversing the whole judgment and then proceeding to render a new judgment for the correct amount, simply affirmed the balance of the judgment, after deducting the amount remitted. While the former mode of proceeding would, perhaps, have been in conformity to the usual mode, yet, in legal effect, and in substance, the result is the same, and, as the plaintiff in error recovered his costs, as upon a formal reversal, he is not prejudiced.

It is now claimed that the court, having found error in the amount of the judgment, it was its duty to reverse and remand for a new trial; that, as a court of error, it had no authority to look into the evidence for the purpose of ascertaining the amount of such error, and modifying the judgment accordingly.

It is conceded the court may so modify, by reversing in part, and affirming in part, or by a remittitur, when, by tbe pleadings, or by a special verdict, or by an agreement of the parties, tbe amount of sucb error is ascertained, but it is denied that tbe appellate court can, on error, look into tbe bill of exceptions and ascertain for itself tbe amount of sucb error.

Tbe power of tbe court on error to review tbe evidence is conferred by tbe act of April 12, 1858 (2 S. & C. 1155 ; Revised Stat. § 5301).

Under this statute, tbe court has power, on error, when tbe motion for a new trial is overruled and all tbe evidence is made part of tbe record, to look into tbe evidence, and from it determine whether tbe verdict is erroneous in whole or in part. In determining tbe powers of tbe court, as defined in section 6126 of tbe Revised Statutes, reference must be bad to this act of 1858. Both should be construed together. *

In tbe case at bar, tbe error of tbe jury arose from an error of tbe court, in not excluding from consideration tbe payments made to third persons for dockage at Cleveland.

Tbe amount of sucb error is readily ascertainable.

. If, as is conceded, tbe court may look into and weigh tbe evidence, as well as tbe charge of tbe court, for tbe purpose of determining whether tbe verdict is too great, and therefore erroneous in part, we think it logically follows it may also determine from tbe same evidence, when tbe error is ascertainable, tbe extent to which it is too great.

If, as is conceded, tbe court may, on error, examine and weigh tbe evidence, for tbe purpose of determining whether tbe judgment is too great, or contrary to law in whole or in part, for tbe purpose of reversing tbe same, it may, for equally cogent reasons, when it can be done, ascertain tbe amount of sucb excess, and make its remission a condition of tbe affirmance of tbe residue.

Tbe distinction which it is sought to draw, between tbe power of tbe trial court-and tbe appellate court in this respect, in our opinion, does not exist, in view of tbe provisions of tbe act of 1858.

Tbe charge of tbe court, to include these erroneous items, was “error of law occurring at tbe trial,” which led to “ error in the assessment of the amount of recovery,” and, being in an action upon a contract,” and the damages being too large, as a consequence of such error, and the amount being ascertainable, this court has the same power to correct the error that the trial court had, on the motion for a new trial.

It is not claimed that the verdict was excessive under the influence of passion or prejudice, therefore the power of the court, on error, where the action of the jury is thus tainted, is not in question.

Neither was the amount of this verdict a matter of opinion merely, as in actions of libel, slander and the like, hence the power to order a remittitur in such a case is not involved. The amount of the verdict was a matter of computation from the evidence. It was strictly limited to actual payments made to plaintiff in error, and to others, in excess of the contract rates. This being so, and the error being that of the court in admitting evidence of payments to others, and charging the jury to include such payments, the court may, on error, examine the bill of exceptions, and determine the amount the evidence tended to prove, and may, on remittitur being entered, modify the judgment accordingly. In thus correcting the verdict of the jury its province is not usurped.

The parties have had a fair and impartial jury, uninfluenced by passion or prejudice. > The verdict is erroneous in part, from a cause not affecting their action as to the other part. The error is easily ascertainable by looking into the evidence. By affirming the judgment, as modified by the remittitur, it is reduced to the proper amount legally found by the jury.

That the court has the power to do this, in cases like the present, is too firmly settled to be now disturbed. Marietta Iron Works v. Lorrimer, 25 Ohio St. 621; Smith v. Exchange Bank, 26 Ohio St. 141; Douglas v. Day, 28 Ohio St. 175; Lear v. McCullough, 17 Ohio St. 464; Sibila v. Bahney, 34 Ohio St. 399; Averill v. Verner, 22 Ohio St. 372; Doolittle v. McCullough, 7 Ohio St. 299; Durrell v. Boyd, 9 Ohio St. 72; Pendleton St. R. R., 22 Ohio St. 466; Saymin v. Phillips, 15 Ohio St. 218.

2. Objection is also made to this form of proceeding by reason of its supposed effect on the judgment lien, and on the liability of sureties on the supersedeas bond. This question is not now before us, and we need express no opinion until the question properly arises. A like objection is made because the judgment as modified bears interest from the date of its rendition, and thus it is said interest is compounded. Such is always the case when the judgment is reversed in part and affirmed in part; the part affirmed bears interest from the day it was rendered.

3. Finally it is insisted that there are a number of questions assigned as error, that were left undisposed of.

This makes it necessary to repeat what has already been stated in the published opinion, before referred to, that after a careful consideration of all these questions no error was found, except as stated. Some of them were questions of fact, some were controlled by reported cases, and some were of minor importance, hence the opinion was limited to the single point reported.

Motion overruled.  