WHITEMAN v. PITRIE

RIVES, Circuit Judge.

Appellee, plaintiff below, complained that while he was working for appellant, defendant below, as a deckhand on a tug engaged in shifting barges, he sustained a broken arm as a result of negligence of the defendant and of defendant's failure to furnish him a safe place in which to work. Inland Waterways Corporation was the owner of the barge on which plaintiff was injured.

Three suits were filed on account of the accident. The first, Civil Action No. 3225, the subject of this appeal, was brought by the plaintiff under the Jones Act.1 The appellant, defendant in the first action, filed a contingent action against Inland Waterways Corporation, being No. 2191 in Admiralty, for reimbursement of any judgment that might be rendered against him in the first action. A jury trial was asked in the first case, but in the second case a jury trial could not be had because the defendant corporation was entirely owned by the United States. Considerably later, the third suit, not here involved, was instituted, a direct action in admiralty by plaintiff, appellee, against Inland Waterways Corporation, in which defendant, appellant, was impleaded under the 56th Admiralty Rule, being No. 2290 in Admiralty.

A motion to consolidate the first and second cases was denied. It was, however, stipulated that the record on the jury trial of the first case could be used in the trial of the contingent libel at a later date. Certain written interrogatories were propounded by the defendant to the plaintiff which had not been answered at the time of trial.

The accident complained of was witnessed only by appellee. According to his testimony, it resulted from a defective winch, the dog or pawl on which gave way when he attempted to insert a crank in the winch to slack off a line. The crank struck his right arm breaking it in two places. The only person who saw the winch immediately after the accident was appellee's fellow deckhand, Labauve, who testified that he found the winch to be defective.2 An inspector of the Federal Barge Line testified that, on the day after the injury, he examined the winch and found nothing wrong with it except a broken cable. A Marine surveyor testified that two days after the injury, he found three of the winches in that end of the barge intact and in operating condition, but the one on the port bow defective in that the brake did not work. The appellee and the witness, Labauve, each referred in their testimony to the starboard winch as being the one used, though the appellant held to a different opinion.3

The trial was had nearly three years after the injury. Plaintiff's arms and their relative movements were exhibited to the jury. Though he was righthanded, his right arm had become considerably smaller than his left. The plaintiff was totally unable to work for 6½ months after his injury but he was paid his wages during that time. His medical and hospital bills were also paid. He came back to work as an engineer, a better paying job. He testified: "Q. In other words, from the financial standpoint up to now, it hasn't really cost you anything, has it? A. No, sir." He further testified that he had only a third grade education, that the only engines he knew or had worked on were those of the defendant, that he was not qualified to be an engineer on other type Diesel engines, and that he felt that he would no longer be able to do the kind of manual labor or to hold the jobs for which he was qualified.

Two physicians testified as to the extent of his injuries, one introduced by the plaintiff and the other by the defendant. Their opinions did not materially differ. The physician introduced by defendant testified that one fracture extended into the wrist joint, and that a painful traumatic arthritis had resulted; he thought that the plaintiff had suffered a twenty-five to thirty percent permanent loss of the use of his right arm.

The court, after an able charge, to which no exceptions were reserved, submitted to the jury eight questions upon which the jury returned the following verdict:

Judgment was entered upon the jury's verdict, the defendant's motion for new trial "and for a reduction of award and remittitur" was denied, and this appeal ensued. Appellant makes five specifications of error which we consider in their order.

Specification of Error I: "The Court below erred in denying Appellant's motion to consolidate Civil Action No. 3225 with No. 2191 in Admiralty."

I. Rule 42(a), Fed.Rules Civ. Proc.4 providing for the consolidation of actions, is permissive and vests a purely discretionary power in the district court. "An exercise of such power may be reviewed on appeal from a final judgment or order but will not be disturbed except for abuse of discretion." 5 Moore's Federal Practice, 2nd ed., Para. 42.02, p. 1204. We find no abuse of discretion in denying the motion to consolidate the jury case with the non-jury case. Further, there is nothing in the record to show that the defendant was injured by the refusal to consolidate.

Specification of Error II: "The Court below erred in allowing the case to go to trial before Appellant's interrogatories had been answered."

II. In the absence of any motion for continuance, objection to trial before the interrogatories were answered, or of any demand for such answers, the second specification does not merit discussion. Further, of course, if the district court had exercised its discretion in refusing to stay the proceedings such exercise would not be disturbed on appeal unless there had been an abuse of discretion. 53 Am.Jur., Trial, Sec. 15.

Specification of Error III: "The jury erred in finding that Appellant was negligent."

Specification of Error IV: "The Court erred in not granting a new trial."

III and IV. There was no motion for a directed verdict, and the third specification may be shortly answered by saying that we are without power to consider directly whether "the jury erred." 5 Moore's Federal Practice, 2nd ed., Para. 50.05(1), pp. 2322, 2323. As to the fourth specification, it is sometimes said that error cannot be assigned in not granting a new trial, but that is inaccurate. While the Seventh Amendment forbids the power to this Court to re-examine the facts found by a jury otherwise than according to the rules of the common law, it does not prevent this Court from reviewing the questions of law presented by the decision of the trial court on the motion for new trial. When the trial court abuses its discretion, that amounts to a legal error and may be reviewed as such. Virginian Ry. Co. v. Armentrant, 4 Cir., 166 F.2d 400, 407, 408, 4 A.L.R.2d 1064; 6 Moore's Federal Practice, 2nd ed., Para. 59.08(6), p. 3827, Notes 29 & 30.

One of the leading authorities for the proposition that the denial of a motion for new trial is reviewable where the trial court fails to exercise its discretion is Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500, where this Court said:

It was well said by Judge Borah, speaking for this Court, in Commercial Credit Corporation v. Pepper, 187 F.2d 71, 75, 76:

When should an Appellate Court reverse the district court for abuse of discretion in the denial of a motion for new trial, which was based on the ground that the verdict was against the weight of the evidence? The inherent nature of the question is such that it cannot be answered with certainty and exactness. About as definitely as the rule may be safely stated is that the discretion of both the appellate court and of the trial court should be exercised to nullify a seriously erroneous result and to prevent a miscarriage of justice. 6 Moore's Federal Practice, Para. 59.05(3), et seq., pp. 3743-3759. We think that the statement at the beginning of this opinion is sufficient to show that there was ample evidence to establish the defendant's liability, and that certainly to that extent there was no abuse of discretion in denying the motion for new trial. We shall consider the denial of the motion as based on the ground that the damages were excessive in connection with the next specification of error.

Specification of Error V: "The amount of the award is grossly excessive and the Court below erred in not granting a remittitur."

V. If the district court considered the verdict excessive, it had the power, on motion, either to order a new trial, or to grant the plaintiff an election either to remit a stated portion of the amount or submit to a new trial. Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603; 6 Moore's Federal Practice, Para. 59.05(3), pp. 3737, et seq.

A simple restatement of the position of this Court is as follows: In reviewing a motion for new trial based on the ground of the inadequacy or excessiveness of the verdict, as well as one based on the ground that the verdict is against the weight of the evidence, the rule applies that "* * * an abuse of discretion is an exception to the rule that the granting or refusing of a new trial is not assignable as error." Commercial Credit Corporation v. Pepper, supra; Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627, 628; Fort Worth & Denver Ry. Co. v. Roach, 5 Cir., 219 F.2d 351.

What are the tests for such abuse of discretion? Expressions have been employed such as "monstrous", Affolder v. New York, Chicago & St. L. R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683, and "so gross or inordinate in amount as to be contrary to right reason." (Chief Judge Hutcheson concurring in Sunray Oil Corporation v. Allbritton, 5 Cir., 188 F.2d 751. Compare the interesting discussion by Judge Lindley for the Seventh Circuit in Bucher v. Krause, 200 F.2d 576, 587. When all is said and done, however, the question by its very nature is one for which there can be no rule of thumb answer. Attempts at defining or making more certain and exact the tests of abuse of discretion do not usually furnish reliable guide posts, nor tend to clarify the rule.

Thus far Chief Judge HUTCHESON and Judge TUTTLE concur in the foregoing opinion. They are, however, of the further opinion, for reasons separately stated by Chief Judge HUTCHESON, Judge TUTTLE, concurring, that the district court abused its discretion, and erred as a matter of law, in denying a new trial for excessiveness, that the judgment should be reversed in part, that is in so far as it awards damages, and that the cause should be remanded with directions to grant a partial new trial limited to the issue of the amount of the plaintiff's damages. Judge RIVES thinks that the district court committed no abuse of discretion in denying a new trial for excessiveness or in not conditionally requiring the plaintiff to consent to a remittitur, that the judgment should be affirmed, and he therefore concurs in part and dissents in part.

So much of the judgment as finds the defendant liable to the plaintiff is affirmed, and so much as awards damages to the plaintiff is reversed, and the cause is remanded for further proceedings consistent with the opinion of this Court.

Affirmed in part and reversed in part and remanded with directions.

Judge RIVES concurs in part and dissents in part.

HUTCHESON, Chief Judge.

Judge Tuttle and I concur in the opinion and conclusion as to Specifications of Error Nos. 1, 2, 3 and 4, and in the opinion but not in the conclusion as to Specifications of Error No. 5.

It seems clear to us that the verdict was excessive as matter of law and that, in not setting it aside, the district judge abused, indeed transcended, his discretion and committed an error of law.

This is so because, as we read the record, reasonable minds guided by the evidence in the case rather than by sympathy or wishful thinking could not, in accordance with principles of right reason, have reached a verdict in such an amount.

On the undisputed evidence, this is the record showing on the quantum of damages:

(1) The accident has not damaged him financially, (He testified on the trial that from the financial standpoint, up to then it hadn't really cost him anything): (a) he was paid his full wages during the time he was unable to work and his medical and hospital bills had cost him nothing out of pocket; and (b) he has suffered no diminution but has had a considerable increase of earning power and earnings in the three years since his return to work as a result of being taught a new and more profitable trade.

(2) Plaintiff's witness, Dr. George Berkett, testified to having made two examinations, one about three months after the accident, another about 2½ years after it, that the first examination revealed that Pitrie had two fractures, one in the upper part of his arm and one in the wrist, and that at the time of the trial, when he had attained maximum recovery, the residual physical disability of his right arm was twenty percent permanent partial.1

(3) When he was injured he was working as a deckhand. When he came back to work he had learned to be an engineer and was given that job, which he stated was a better job and paid quite a bit more.

(4) As to his future earnings, while he swore that he thought he would not be able to get a job again as a deckhand, he also swore that he would be qualified and could get a job as an engineer in connection with a Diesel engine of the kind he was working on.

It is not claimed, it could not be, that a jury can award damages on sympathy, caprice, or on possibility, or on any other basis than the evidence in the case as viewed by reasonable minds.

While we recognize that a judgment refusing a new trial may not be reversed in this court merely because the verdict is excessive in fact, and have many times held that way, we think it clear that it is the inescapable duty of this court, when, as here, the evidence furnishes no sound basis for the verdict, to reverse a judgment for error of law where the trial court has refused to set the verdict aside.

Under that rule, upon these facts and under the circumstances shown here, we think it clear that there was error of law and that it can be corrected only by reversing the cause for excessiveness in law of the verdict and remanding the cause for retrial on the issue of damages.