In these cases plaintiff Vito, a minor, recovered $175 for injuries and his father $285 for expenses incurred as a result of defendant's alleged negligent operation of an automobile. Plaintiff Vito's award of damages admittedly was insufficient compensation for his injuries and plaintiff Michael's was less than the actual expenditures shown by the testimony. Defendant did not file a motion for a new trial.
Each plaintiff filed a motion for a new trial alleging inadequacy of damages and asked that the new trial be restricted to the question of damages. At the hearing thereon the trial justice declined to hear arguments as to whether the testimony warranted a finding of liability, the court saying that the awards were "indefensible" in any event; that each verdict was a compromise "of the most glaring character", insufficient if plaintiffs were entitled to recover anything, unjust if defendant was not liable. Unrestricted new trials were granted. Sayegh v.Davis, 46 R.I. 375.
Defendant excepted because of alleged error of law in granting new trials without in any way indicating its attitude toward the finding that defendant was liable. We think the court erred in disregarding the question of liability. The new trials were asked solely because of alleged inadequacy *Page 29 of damages. They were ordered because of erroneous assessments of damages irrespective of inadequacy. With the damages assessed defendant found no fault. He was content to be found liable so long as damages were limited to the amounts of the verdicts.
The court acted upon motions complaining of error prejudicial to plaintiffs. The court was not, and by plaintiffs might not be, asked to review error prejudicial to defendant. Its duty was not to remedy uncomplained of wrong solely to defendant and unasked to direct new trials to redress it. The court pointed out that liability and the damages awarded were inconsistent. Inconsistency alone would not warrant granting plaintiffs' motions for a new trial, Lovett v. Chicago, 35 Ill. App. 570; to do so it must have been harmful to plaintiffs. A plaintiff who has recovered a verdict and seeks to set it aside for inadequacy must satisfy the reviewing court both that he is entitled to a verdict and that the damages are less than a fair interpretation of the evidence demands. Corn Novelty Co., Inc. v. NorwichFire Ins. Soc., 176 App. Div. 261.
On a plaintiff's motion, based upon inadequacy of damages, defendant may properly argue that the evidence fails to show any liability of defendant, Maki v. St. Lukes Hospital, 122 Minn. 444, because without liability established an award of damages to plaintiff, however small, can not be inadequate. O'Malley v.Chicago City Ry. Co., 30 App. Ct. Rps. Ill. 309.
The authorities are numerous that a verdict for plaintiff ought not to be set aside as inadequate unless the reviewing court believes that liability may be treated as established.Olek v. Fern Rock Woolen Mills, 180 Fed. C.C. Pa. 117;Reading v. Tex. Pac. Ry. Co., 4 Fed. C.C. Pa. 134; Garnes v. Halpern, 193 Cal. 193; Copeland v. Junkin, 198 Iowa 530;Maki v. St. Lukes Hospital, supra; Lovett v. Chicago, supra;O'Malley v. Chicago City Ry. Co., supra; Sullivan v. Wilson, 283 S.W. (Kan.) 743; Reeve v. Wilkesbarre c. 9 Kulp. 182;Spannuth v. Cleveland, 196 Ind. 379; Snyder v. *Page 30 Portland Ry., 107 Ore. 673; Gilchrist v. Satterwhite, 7 Tenn. Civ. App. 321; Adams v. Anderson and Middleton L. Co.,124 Wn. 356; Hubbard v. Mason City, 64 Iowa 245; Scott v.O'Hair, 188 Ill. App. 26; 20 R.C.L. 285, § 67; 46 C.J. pp. 210, 410.
Under our present practice involving the duty of the Superior Court on a motion for a new trial to indicate its approval or disapproval of a verdict, the court ought not to grant a new trial without regard to what the evidence shows as to liability. If the court does so it only partially performs its duty. With the statement concerning establishment of liability, because of defendant's failure to file a motion for new trial, in Hill v.Union Ry. Co., 25 R.I. 565, we are unable to agree. Examination of briefs filed in that case shows that the argument here made and held sound was there made but without citation of the cases above set down. It is clear, however, that the Hill case is not authority that a plaintiff in whose favor an inadequate award of damages is said to have been made is entitled to a new trial irrespective of any liability on defendant's part. Before the Superior Court was warranted in granting new trials to plaintiffs, its approval of the findings of liability was necessary.
Defendant's exception to the action of the trial court in each case is sustained, but defendant is not entitled to have judgments entered on the verdicts as rendered. The trial court should pass upon the inadequacy of damages only if the jury's finding of liability meets with its approval.
The cases are remitted to the Superior Court for further proceedings with direction to pass upon each plaintiff's motion for new trial in accordance with the views here expressed and to deny same unless the court approves of the finding that defendant was liable.