The rule should apply that a new trial on the issue of damages may be granted so long as it is not shown that any passion or prejudice affected the decision of the jury upon other issues in the case. Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675. We have searched the record of the first trial and are unable to find anything therein in any way likely to arouse passion or prejudice.
Charge as to damages objectionable. 3. The large damages, of which defendants complain, may have been unduly increased by reason of instructions permitting duplication of items of damages and held objectionable in Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675.Immaterial whether employment was in interstate or intrastate commerce.
This broad area of damages is typically bifurcated into loss of time and decreased earning capacity with the time of trial dividing the two."); Kinney v. Folkerts , 84 Mich. 616, 624, 48 N.W. 283 (1891) ("The actual loss of time while he was sick and unable to work should be awarded to him."); Gilson v. City of Cadillac , 134 Mich. 189, 192, 95 N.W. 1084 (1903) ("We think the jury were given to understand very clearly that it was only for loss of time in connection with her own business she was entitled to recover."); Lepan v. MacKinnon Boiler & Mach. Co. , 178 Mich. 18, 28, 144 N.W. 693 (1913) ("[Plaintiff's] loss of time at 90 cents a day is the only item of damages in the case.").• Minnesota:Cox v. Chi. Great W. R.R. Co. , 176 Minn. 437, 440, 223 N.W. 675 (1929) ("Loss of time and loss of earnings, as covering the same period of time, are a duplication."); Gilbert v. Megears , 192 Minn. 495, 502, 257 N.W. 73 (1934) ("[I]t was the loss of plaintiff's own earnings resulting from his disability, or, in other words, the value of the time lost by him that should measure his special damages."); see also, e.g.,Forbes v. Wells Fargo Bank, N.A. , 420 F.Supp.2d 1018, 1020-21 (D. Minn. 2006) ("Plaintiffs contend that the time and money they have spent monitoring their credit suffices to establish damages.
However, a plaintiff can only recover for loss of time in terms of earning capacity or wages. See Cox v. Chi. Great W.R.R. Co., 223 N.W. 675, 677 (Minn. 1929). Plaintiffs have failed to cite any Minnesota authority to the contrary.
It has been consistently held in this state that the trial court has the power to use remittitur when excessive damages appear to have been given under the influence of prejudice or passion "so long as the prejudice or passion is not shown to have affected the decision of the jury upon the other issues in the case." Cox v. Chicago G. W. R. Co. 176 Minn. 437, 441, 223 N.W. 675, 677; Kugling v. Williamson, 231 Minn. 135, 42 N.W.2d 534; Whitney v. Kaliske, 131 Minn. 261, 154 N.W. 1100; Goss v. Goss, 102 Minn. 346, 113 N.W. 690; Craig v. Cook, 28 Minn. 232, 9 N.W. 712. However, when the passion and prejudice may have affected the other issues in the case, a new trial should be granted rather than using remittitur.
Whatever may be the merits of this rule, it is well established in Minnesota, except as to actions brought under federal statutes. Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675; 16 Minn. L.Rev. 185; 5 Dunnell, Dig. Supp. § 7138. We find no abuse of discretion in denying a new trial on the condition that plaintiff consent to a remittitur of $1,000.
Accurately speaking, it was the loss of plaintiff's own earnings resulting from his disability, or, in other words, the value of the time lost by him, that should measure his special damages. Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675; Stynes v. Boston Elev. Ry. Co. 206 Mass. 75, 91 N.E. 998, 30 L.R.A.(N.S.) 737. But it is clear to us that what he paid hired help for the work he would have done if not injured was less than the value of the loss of his time or the loss of his earnings. The time of an able-bodied farmer operating a sizable farm is generally worth more than the going wages of hired help to do the farmer's work. Hence, if technically erroneous, the instruction must be regarded as not prejudicial to defendants.
"The trial judge ought not to grant a second new trial for excessive damages, unless they are so excessive as unmistakably to indicate that the verdict must have been the result of passion or prejudice." In Cox v. C. G. W. R. Co. 176 Minn. 437, 438, 223 N.W. 675, 676, Mr. Justice Olsen wrote: "We follow the rule here that where one verdict has been set aside as excessive this court will exercise great caution in setting aside or reducing a second verdict as excessive."
"You may take into consideration * * * to what extent, if any, it [the injury] will interfere with his carrying on his work, and its effect, if any, upon his earning capacity; the time that he has lost already because of it and is reasonably certain to lose in the future." The argument is that that instruction permitted a double recovery for the same items of damage within the rule of Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675. The instruction was in effect that the jury might consider to what extent, if any, the injury would interfere with plaintiff's carrying on his work; that is, its effect upon his earning capacity, to be determined by the time that he had lost already because of it and was reasonably certain to lose in the future. The explanatory phrases were used simply in apposition to and explanation of what preceded.
" Cox v. C. G. W. R. Co. 176 Minn. 437, 223 N.W. 675, is to the same effect. The record before us discloses nothing which could reasonably induce passion or prejudice on the part of the jury.