Opinion
Ex. No. 9466.
February 27, 1957, Decided
Martin M. Zucker, Providence, for plaintiff.
Albert Lisker, Providence, for defendant.
PER CURIAM.
After our opinion in the instant case was filed, Goodman v. Zawadowicz, R.I., 129 A.2d 537, the plaintiff requested and received permission to file a motion for leave to reargue "for the purpose of clarifying the opinion."
The motion apparently is intended to point out that the charge of the court required the jury, if they rendered a verdict for plaintiff, to fix damages in a larger amount than actually was awarded; that defendant did not take and prosecute an exception to such charge, which thereby became the law of the case; and that plaintiff's bill of exceptions was limited to the denial of his motion for a new trial which was based solely on the ground of inadequate damages. Consequently plaintiff contends in substance that in the special circumstances entry of judgment on the verdict would be contrary to the law of the case, and that the order in our opinion should have remitted the instant case for a new trial on damages only instead of for entry of judgment on the verdict.
We have re-examined the bills of exceptions in the five companion cases which were tried together with this case and it appears that the bill of exceptions herein differs from the others. For the purpose of the motion to reargue, therefore, we shall assume that on the record here presented the entry of judgment on the verdict would not be in accordance with our usual practice. However, we do not agree that by filing a motion for a new trial on a single ground, namely, inadequate damages, plaintiff may thereby restrict the trial justice to a consideration solely of that issue.
The motion is actually for a new trial and should not be confused with the ground upon which it is sought. On such a motion it is for the trial justice to exercise his independent judgment to determine whether, in the interest of obtaining a fair trial and doing substantial justice between the parties, a general or a partial new trial is warranted. Riley v. Tsagarakis, 53 R.I. 261, 165 A. 780. That being so, it follows that this court is not necessarily bound to order a new trial on damages only where, as here, the trial justice denied the motion and the evidence clearly preponderates in favor of the defendant on the liability.
Accordingly on the plaintiff's motion to reargue the case of Jerome Goodman v. Walter Zawadowicz, Ex. No. 9466, is granted only to the extent that the order in our opinion that this case "is remitted to the superior court for entry of judgment on the verdict" should now be changed to read that such case "is remitted to the superior court for a new trial on all issues."