This is an action for personal injuries, in which jurisdiction is based upon diversity of citizenship. The jury returned a verdict in favor of plaintiff-appellant in the amount of $50,000, consisting of $35,000 in compensatory damages and $15,000 in punitive damages. The District Court granted a remittitur of $10,000 in the award of punitive damages, which was accepted by plaintiff-appellant under protest. We quote the following language from the order of the District Court:
Appellee has filed a motion to dismiss the appeal on the ground that appellant accepted the remittitur in the District Court and accepted and collected the reduced judgment of $40,000 before his notice of appeal was filed.
Tennessee has a statute
In support of its motion to dismiss, appellee relies upon the decision of this court in Bristol Gas & Electric Co. v. Boy, 261 F. 297, (C.A. 6), holding that the statute quoted in the margin has no application in a United States District Court sitting in Tennessee and that the action of the District Judge in ordering a remittitur as a condition to denying a motion for a new trial is not appealable. The Bristol case was decided by this court prior to the decision of the Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Under the Erie decision, this Tennessee statute will be applied in
"The right of the trial judge to suggest and approve a remittitur in lieu of granting a new trial when he is of the opinion that the verdict is grossly excessive is well settled." Montgomery Ward & Co. v. Morris, 260 F.2d 504 (C. A. 6). We hold that the acceptance of such a remittitur under protest in the instant case did not deprive appellant of the right to appeal.
The motion to dismiss the appeal is denied.