(dissenting).
I dissent, hut agree with the majority opinion’s admission that “We know of no case in which this court has directed an increase of an award of damages.” I cannot agree, however, with the next sentence which states: “But * * * there appears 'to be no persuasive reason for any differentiation between doing so (increasing an award) and ordering a reduction because the verdict is excessive.” The authorities, including the U. S. Supreme Court, sharply differ with the main opinion’s unsupported conclusion, and demonstrate that there is reason for such differentiation.
Before canvassing the authorities, I feel constrained to question the soundness of what I believe are several loose generalities presented to the reader in the main opinion. It is said that:
“The contention here is that the verdict is outside the limits of what appears justifiable under the evidence to the extent that it should not be permitted to stand. In such instances the remedy is to order a modification of the verdict to bring it within the evidence; and the adverse party is given the choice of accepting it or taking a new trial.”
Such language is a disarming misstatement of the law of this state to date. Without citation of any authority, and admitting that this court has never sanctioned an increase in verdicts, in one fell swoop it applies the rule as to reduction of verdicts to the case of upping them.
■The main opinion volunteers that in Saltas v. Affleck 1
“tacit approval was given to an order of the trial court directing that ah award of $800 for the death of plaintiff’s son be increased to $2,400, which the defendant was directed to accept or take a new trial.”
The court did not give tacit approval to such an increase (and the defendant stood on his rights to have a new trial refusing to pay any such additur) but simply reaffirmed the principle that where a verdict is inadequate, the court could grant a new trial. It is hardly fair to cite that case as a prologue, to the establishment of a new and hitherto unsupported rule.
After inquiring as to whether the award was so small as to justify affirmative relief, the opinion then assumes that such relief should be an arbitrary increase of the judgment. Rule 59 does not sanction such conclusion. Nor does any decision of this court. Nor do the authorities generally. To date the only relief in such cases has been to grant a new trial.
*51This brings us to the authorities. Utah’s own Justice Sutherland, speaking for the United States Supreme Court2 had the following to say as to additurs :
“The controlling distinction between the power of the court and that of the jury is that the former has the power to determine the law and the latter to determine the facts * * * Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages. Both are questions of fact. Where the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict, * * * — in that sense that it has been found by the jury,— and that the remittitur has the effect of merely lopping off an excrescence. But, where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict. When, therefore, the trial court here found that the damages awarded by the jury were so inadequate as to entitle plaintiff to a new trial, how can it be held, with any semblance of reason, that that court, with the consent of the defendant only, may, by assessing an additional amount of damages, bring the constitutional right of the plaintiff to a jury trial to an end in respect of a matter of fact which no jury has ever passed tipon either explicitly or by implication? To so hold is obviously to compel the plaintiff to forego1 his constitutional right to the verdict of a jury and accept ‘an assessment partly made by a jury * * and partly by a tribunal which has no power to assess.’ ”
In Lemon v. Campbell,3 after espousing the reasoning above, the court revealed another cogent reason why it is error to permit an increase in the judgment over and above the verdict, when it said:
“There is another matter' — a practical one — which is also involved. In an order refusing a new trial for an excessive verdict, provided a remittitur is filed of the verdict in excess of a fair and reasonable amount, as determined by the trial court, it is the plaintiff, *52who was successful on the trial, and whose freedom from contributory negligence was established by the jury, who is given the option of deciding whether he will accept a reduction of the verdict of the jury or insist on a new trial. But where a new trial is refused, conditioned on the defendant agreeing to pay the plaintiff a sum in excess of the verdict of the jury, it is the losing, negligent defendant who has the option of deciding whether a new trial shall be granted or an increased amount be substituted for the verdict of the jury.”
Montana4 agrees, stating:
“That a judgment may be reversed and a new trial ordered, where the damages awarded are clearly inadequate under the evidence, has been many times affirmed-by this and other courts; but this court never has assumed to exercise the authority or power of 'scaling a verdict upward.’ ”
Other cases follow this rule.5
In my opinion, this decision, at least by implication, presents an inaccurate picture of the procedure followed in this case, and also a disarming justification for the rule it lays down for the first time. It asserts that “This alternative6 does not infringe upon the right of trial by jury, because the party favored7 by the order is seeking relief from the inadequacy of the jury verdict, while the party adversely affected always can choose the new trial if he so desires.
Such a statement reasonably suggests that the plaintiff asked the lower court for a new trial, or in the alternative, for an amount over and above the verdict. No motion for such relief can be found in the record. Only a motion for a new trial can be found there, on the grounds that “the damages awarded were inadequate, appearing to have been given under the influence of passion or prejudice.” To give any other impression is to ignore the record.
Now, for the first time on appeal, so far as can be determined from this record, the plaintiff makes a brand new motion,- — a motion for a new trial or in the alternative for an amount over and above the verdict. Such motion is quite foreign to a mere motion for a new trial.
In permitting such procedure and granting the relief asked for for the first time *53on appeal, this court assumes the role of a trial court, and indulges a procedure that is a stranger to both the trial court and the record. If such motion can be made for the first time on appeal, it follows that a motion for a new trial on any statutory8 or other grounds should be entertained for the first time on appeal. Such entertainment, of course completely emasculates Rule 59 and the provisions therein relating to the giving of notice, etc., and such procedure reflects a novel and rather startling departure from standard appellate practice, quite out of harmony with the numerous pronouncements of this court refusing to review matters not entertained at the trial level.
By another kind of additur, a statement has been incorporated in the main opinion since this writer’s dissent was inked, to which I feel constrained to address myself. It is said that
“There is implicit within the authority of the court to grant a new trial on the statutory ground of ‘excessive or inadequate damages * * * ’ the power to order a new trial conditionally : that is, to order that a new trial be granted unless the party adversely affected by the order agrees to a re-mittitur or an additur.”
This is a departure from the idea that the plaintiff had asked, in the alternative, for a new trial or an additur. Up until the time the statement quoted above was made, there was no implicitness whatever in the authority of this court, sua sponte, to grant a new trial unless the defendant pay something more than the jury found to be due in the way of damages, and I do not believe this observation challenge-able since the main opinion acknowledges that “we know of no case in which this court has directed an increase of an award of damages.”
In my opinion, this decision gives the court a power it never had, and one that trespasses into constitutional territory involving denial of both a jury trial and due process. It lays down what I think is a dangerous rule, that, even where no one seeks the relief, we, who were not parti-ceps at the trial, can grant a new trial unless defendant pays a sum we arbitrarily set, forcing the plaintiff, who has absolutely no choice in the matter, to take the added amount without any possibility of having a jury pass on the matter. In doing so, it is of course necessary that we admit that the inadequacy was a basis for a new trial under Rule 59. If' such inadequacy calls for a new trial, I think it calls for a new trial with a jury. Requiring *54plaintiff to take what may be an inadequate additur with no choice in the matter is as much a denial of a jury trial as to deny it to him in the first place.
If this court can add $400 to a $100 verdict, claiming the latter to be inadequate so as to justify a new trial, then it can add $1.00 to a $100 verdict, and the defendant, by paying $101 effectively could prevent plaintiff from having a jury trial. My guess is that this case proves the point, since it would appear reasonable to believe that a plaintiff who is suing for $5,-000 would prefer to take his chances with a jury on a new trial than to take a sum that obviously would not pay for the cost of litigation and appeal.
The unfairness of the rule laid down by the court seems apparent when one realizes that in ordering a new trial unless the defendant pay something more that we choose arbitrarily to set, without giving plaintiff any choice in the matter,' leaves the entire matter of whether plaintiff may have a new trial or not up to the misfeasant wrongdoer, — the defendant. Such rule, born in our own mansion, without any authority save our own interdiction, cannot be found in the very rules we ourselves promulgated, and does violence, in my opinion, to ’Rule 59. Carried to its logical- conclusion it would seem to me that this rule would authorize a new trial or an additur even where a jury brings in a verdict of no cause of action.
There seems to be nothing apparent in the record of this case that would have caused the jury to become prejudiced against this plaintiff any more than against the other plaintiff, whose case was tried simultaneously with plaintiff’s before the same judge and the same jury. Yet in this case we conclude that the jury’s verdict was inadequate to the extent of being only 20% of what it should have been, justifying a new trial on the ground the jury was influenced by passion or prejudice. In the companion case, dealing with another personality who also claimed injury by eating tainted meat at the same table, we held that the same jury was not influenced by passion or prejudice in any percentage or at all. It is difficult for me to understand how this selfsame jury could be the exemplary agency which is the subject of such high complimentation in the opinion in the other suit, and at the same time be the impassioned, prejudiced and penurious agency which the main opinion here must mean by its ad-versión to the verdict as being “outside the limits of any reasonable appraisal of damages.”
In arriving at its conclusion and to substantiate it, two examples of litigation over damage to horses are given, which I be*55lieve are not apropos of the question of remittitur or additur at all. If, as the opinion says, the evidence shows that the facts are as related in the examples, there would seem to he nothing to give to the jury, since there would be no facts to find, and the case would be decided on motion for directed verdict, or on summary judgment under Rule 59, at a pre-trial, as a matter of law.
Furthermore, I believe that even under the facts related in the main opinion, there is sufficient competent evidence to sustain the verdict. It is pointed out that the plaintiff suffered $69.00 out of pocket expense, and that “of the $100 awarded him this leaves only $31.00 as general damages for the pain, distress and inconvenience of having the disease.”
The jury may not have believed some of the testimony about pain and suffering. If there was sufficient believable evidence to support the verdict, this case is departing from its numerous pronouncements heretofore made to the effect that if there be any substantial evidence to support the verdict we will not disturb it on appeal. I believe the court has fallen into the error of setting out facts testified to and then assuming that the jury had to believe them all. Under the facts of this case I do not think the court abused its discretion in denying a new trial. Its judgment should be affirmed.
. 99 Utah 381, 105 P.2d 176.
. Dimick v. Schiedt, 1935, 293 U.S. 474, 55 S.Ct. 296, 301, 79 L.Ed. 603, 95 A.L.R. 1150. See also Lorf v. City of Detroit, 1906, 145 Mich. 265, 108 N.W. 661; Dorsey v. Barba, 1952, 38 Cal.2d 350, 240 P.2d 604.
. 1939, 136 Pa.Super. 370, 7 A.2d 643, 646.
. Osterholm v. Butte Electric R. Co., 1921, 60 Mont. 193, 199 P. 252, 255.
. DeKeyser v. Milwaukee Auto Ins. Co., 1941, 236 Wis. 419, 295 N.W. 755; Springer v. J. J. Newberry Co., D.C.1951, 94 F.Supp. 905.
. Requiring that a new trial be granted or that something that was not determined by the jury be added to its verdict.
. The plaintiff.
. Rule 59, Utah Rules of Civil Procedure.