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Fisch v. Manger

Citation. 22 Ill.24 N.J. 66, 130 A.2d 815 (1957)
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Brief Fact Summary.

The Plaintiff, Fisch (Plaintiff), suffered injuries in a car accident and the jury returned with a small award in his favor. The trial judge submitted that unless the Defendants, Manger and others (Defendants), agreed to an increase in the amount awarded, he would grant a new trial on the damages question alone. Defendants agreed, but the Plaintiff appealed arguing the amount was too small.

Synopsis of Rule of Law.

Trial judges may grant additurs and remittiturs when substantial justice in the original trial may be achieved instead of having to grant a new trial.


The Plaintiff suffered severe injuries in a car accident and received $3,000 from the jury. The jury’s award covered the Plaintiff’s actual expenses, but awarded him virtually nothing for pain and suffering. He appealed stating the sum was inadequate. The trial judge wrote to the parties stating, that unless the Defendants raised the verdict in writing to $7,500, the judge would set aside the verdict and order a new trial as to the damages issue only. The Defendants agreed, but the Plaintiff appealed.


Whether the trial judge had the legal authority to condition a new trial on Defendant’s failure to consent to a prescribed increase in the verdict.


The trial court’s action in prescribing a paltry increase in the verdict amount was not permitted to stand. The interest of justice would be best served by permitting a second jury to decide on the issue of damages. The separable issue of liability of the Defendants was clearly and properly decided. Reversed, with direction for a new trial on the issue of damages. Concurrence. The additur practice contravenes the essence of the common-law right of trial by jury.


The legality of the trial judge’s authority in conditioning the new trial was based on historical legal practices described below. The appeals court reasoned that both practices served the good purpose of avoiding a further trial where justice could be attained on the basis of the original trial. Remittitur describes an order denying the defendant’s application for new trial on condition that plaintiff consent to a specified reduction in the jury’s award. Additur is used to describe an order denying the plaintiff’s application for a new trial on condition that the defendant consents to a specified increase in the jury’s award. The appeals court noted that the sum to which the trial judge increased the award was too small and that the trial judge’s basis of the decision – a prolonged back injury of the Plaintiff, had no bearing since that injury had no effect, whatsoever, on the accident injuries.

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