On April 1, 1957, the Supreme Court decided Fisch v. Manger, 24 N.J. 66 (1957). The key issue there was whether the practice of additur, under which a trial judge may, after a jury verdict, increase the amount of the verdict rather than ordering a new trial, if the defendant consents.
The case involved an auto accident in which plaintiff was seriously injured. A jury awarded him just $3,000. Plaintiff moved for a new trial due to the inadequacy of the jury award. But defendants consented to an increase of the award to $7,500, so the trial judge denied plaintiff’s motion for a new trial. Plaintiff appealed, contending that the trial judge lacked the power to grant additur. Before the case could be heard in the Appellate Division, the Supreme Court took up the matter on its own motion.
By a 6-0 vote, the Court held that the trial court’s decision should be reversed. Justice Jacobs wrote the Court’s opinion, which analyzed at length the issue of the constitutionality of additur and decided that additur did not violate the Seventh Amendment’s guarantee of trial by jury. He cited law review articles, cases from New Jersey and other American courts, and even “somewhat obscure” decisions in England.
The most important case cited was Dimick v. Scheidt, 293 U.S. 474 (1935). There, by a 5-4 majority, the Supreme Court of the United States held that additur violated the Seventh Amendment (though remittitur, the practice of reducing a jury verdict if a plaintiff consents to that rather than ordering a new trial, was not similarly unlawful). The dissenters in that case were legends of the Court: Chief Justice Hughes, Justice (and future Chief Justice) Stone, and Justices Brandeis and Cardozo.
Justice Jacobs said that “[t]he majority opinion in Dimick has been the subject of much criticism and it is doubtful whether the Supreme Court would still subscribe to it; in any event, the Seventh Amendment differs somewhat from our constitutional provision and has no application to proceedings in our state courts.” He cited New Jersey cases going back to 1917 that had been understood to approve both remittitur and additur, as well as scholarly opinion that adopted that same view. Given all that, the Court was satisfied that “the practices of remittitur and additur violate none of our constitutional interdictions and, if fairly invoked, serve the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial.”
Plaintiff thus lost the battle over whether additur was unconstitutional. But he won the war. Justice Jacobs accepted plaintiff’s “meritorious contention that, in any event, the prescribed increase to $ 7,500 was ‘grossly inadequate and should be set aside.'” He cited the appellate courts’ “power of our appellate courts to reverse a trial court’s refusal to grant a new trial (whether or not conditioned on remittitur or additur) where it is satisfied that there has been ‘an abuse of discretion’ or, in the more modern terminology, ‘a manifest denial of justice'” (citations omitted). A new jury trial on damages was required because the trial judge mistakenly relied on the existence of injuries to plaintiff from a prior accident that had, in fact, “cleared up” and had no bearing on the injuries from the accident at issue.
Justice Heher filed a concurring opinion. He would have followed Dimick and ruled that additur was unconstitutional. He concurred only in the result.
The opinion of Justice Jacobs has been cited in more than fifty decisions thereafter. Those cases include citations by the Supreme Court as recently as 2019. As a result of this ruling, additur is now a settled part of New Jersey state court civil procedure.