
    No. 76
    JAMES C. DAVIS, Agent v. HENRY DIEDRICH
    Cuyahoga Court of Appeals,
    No. 4054
    Decided December 18, 1922
    VERDICT EXCESSIVE — Induced by passion or prejudice — (2) Misconduct of Attorneys to induce —(3) New trial the proper remedy.
    Attorneys — Tolles, Hogsett, Ginn & Morley, for Davis; Payer, Winch, Marshall & Karch, for Died-rich.
   VICKERY, J.:

Epitomized Opinion

The plaintiff was designated as agent, under the provisions of the Federal Control Act, and suit was brought in this county, although the plaintiff and his witnesses lived in Garrett, Ind.

Several acts of negligence were averred, but they were all eliminated but one, failure to give notice, of the backing of the engine in control of the hostler. On this averment and as to the extent of the injury, the evidence was conflicting and extensive, but the jury returned a verdict of $65,000. The judge, of his own motion, cut the verdict into half, overruled a motion for a new trial and entered judgment for $32,500. The court also found, at the same time that the verdict was not influenced by passion or prejudice. The Court of Appeals considered:

1. That the size of the verdict and the action of the lower court in reducing its magnitude make it appear that the verdict was induced by passion or prejudice.

2. That the conduct of the lawyers for Diedrich, while not such as warrant the court in interferring, was such as to be insinuating and very detrimental to the defendant below, might have been productive of passion and prejudice manifest by the resultant verdict for $65,000.

3. This court held, that as a remitittur cannot be granted to cure passion and prejudice, the proper remedy was a new trial, as the Deidrich did not consent to a reduction, and the court had no power to make it. The case was reserved and remanded to trial court.  