JOHN R. BROWN, Chief Judge:
As in most eminent domain cases, the controversy here is more principal than principle. The legal issue is the propriety of a Court ordered remittitur as a condition to denial of the Government's motion for new trial. We hold the remittitur to have been improper and reverse and remand.
On March 14, 1968 the United States Government filed a Declaration of Taking on 1160 acres of Defendants' land in the Mississippi Delta
Though all of the appraisers agreed that the best use of the property was for agricultural production, as might be anticipated, the estimates of reasonable compensation for the taking varied with the person who was asked. The landowners' experts gave opinions ranging from $512,400 to $582,000. The Government's experts attempted to put the figure in the neighborhood of $290,000.
The disparity was primarily based on the question of whether the tract had been floodland before the Hillside Floodway Levee (First Phase) had been completed in 1965. The land was taken as part of a floodway and the Government's contention was that the levee did not cause more flooding than had always taken place prior to 1965. Defendants however asserted that no flooding had occurred before, and that the floodland was due to the Government, and not to the geography.
Before we delve into the propriety of the Court-ordered remittitur, we face the threshold contention that since the landowners have accepted the fruits of the judgment by receiving the reduced amount, they have therefore waived the right to attack the remittitur. The Government relies strongly on Woodworth v. Chesbrough, 1917, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005. There Plaintiff brought an action against bank directors whose malfeasance allegedly had caused him injury. The trial Judge found the verdict excessive and conditioned the denial of a new trial on a remittitur. After filing the remittitur, Plaintiff appealed. The Supreme Court held that it would be inequitable for one to accept a judgment and then seek to "retract the condition on which it was granted". 244 U.S. at 82, 37 S.Ct. at 584, 61 L.Ed. at 1007. We echoed this in Movible Offshore Co. v. Ousley, 5 Cir., 1965, 346 F.2d 870, 875.
But Woodworth implies that the judgment creditor has a real choice between taking a sure sum and putting the case to another trial and that the only detriment suffered is the risk that on the conditionally ordered retrial, the recovery will be even less than the reduced amount of the remittitur.
In a number of recent cases we have held that acquiescence in the remittitur as a condition to avoid a certain retrial does not amount to a waiver of the right to appeal and the subject of the appeal may be the remittitur itself. In Delta Engineering Co. v. Scott, 5 Cir., 1963, 322 F.2d 11, the plaintiff accepted the remittitur conditionally to enable him to appeal the validity of the remittitur which the partially successful plaintiff had protested at every stage. In allowing the appeal over the same contention urged by the Government here we had this to say:
322 F.2d at 15.
We spelled it out in our holding in Steinberg v. Indemnity Insurance Co., 5 Cir., 1966, 364 F.2d 266:
364 F.2d at 268.
So the right to maintain the appeal turns on whether the remittitur is accepted without protest, as we pointed out in Minerals and Chemicals Phillip Corp. v. Milwhite, 5 Cir., 1969, 414 F.2d 428, 431:
There was nothing free about this acceptance of the remitted amount. First, the Fifth Amendment assures a citizen of just compensation. The citizen is the pursued, not the pursuer. He is entitled either to his property or to just compensation. The landowners had been deprived of the use of their property for one year when the trial began. And then, after being put to a trial which resulted in an award of $197,000 more than the Government's initial deposit, the Government filed its notice of appeal which landowners were entitled to treat as a good faith intention on the part of the sovereign to contest even the reduced judgment as excessive. Not until the Government had completely failed to comply with the most rudimentary rules of this Court, a failure that resulted in
More than that, unless the funds were withdrawn from the registry, the landowners would have lost all interest during the time of the Government's appeal or their cross appeal since interest ceases on making the deposit.
On the merits the decision can be quickly stated. The remittitur was erroneous because it was based on an incorrect legal standard. Whatever doubt there might have been before, this Court has now adopted the rule which limits reduction to the highest amount which the jury could have found.
In Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir., 1970, 429 F.2d 1033, we chose the maximum recovery rule.
With this standard in mind, we have made a careful examination of this record. Granted that the jury was not bound to accept the dollar opinion figures given by the experts (even though verbally uncontradicted) there was ample credible evidence, both fact and opinion, to justify the jury figure of $513,400. The jury was entitled to credit the figures given by landowners' witnesses as more convincing than those lower ones of the Government's witnesses.
But it does not end with a simple reversal and rendition for the full amount of the jury verdict. For the remittitur was a condition to not granting the motion for new trial which the Judge's order found to be "well taken". On the surface the order seems to state that if (i) the remittitur is not accepted or, perhaps (ii) is held to be invalid then a new trial would be granted. But Judges are practical, and we would not hold the trial Judge to such literalism. In all good faith with an abundance of precedent to support the now rejected legal standard for fixing the remittitur the District Court was undoubtedly confident that there would never be a new trial since either the landowners would accept the remittitur or the appellate Court would sustain it under an attack going only to the Judge's discretion (and the claimed abuse of it). The Government is entitled to have this issue determined on its merits now that the conditional order has been held invalid.
This is especially so since there is a decisive difference between the granting of an instructed verdict (or J.N.O.V.), which the "maximum" rule simulates and the grant of a new trial by the trial Judge. He may grant an instructed verdict only where as a matter of law the evidence is insufficient to sustain the claim, issue or defense. See Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc). But even if the Judge finds that the evidence passes muster he has wide discretion in granting a new trial which is almost beyond effective review and probably only after
Marsh v. Illinois Central Railroad Co., 5 Cir., 1949, 175 F.2d 498, 500. See also Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914; Telfair v. Zim Israel Navigation Co., Ltd., 5 Cir., 1970, 428 F.2d 127; Brown v. Louisiana & Arkansas Ry. Co., 5 Cir., 1970, 429 F.2d 1265.
Thus the trial Judge might readily determine that a new trial should be had even though a Judgment N.O.V. could not be ordered. See Hampton v. Magnolia Towing Co., 5 Cir., 1964, 338 F.2d 303; Planters Manufacturing Co. v. Protection Mutual Insurance Co., 5 Cir., 1967, 380 F.2d 869, 881, cert. denied, 389 U.S. 930, 88 S.Ct. 293, 19 L. Ed.2d 282; United States v. Bucon Construction Co., 5 Cir., 1970, 430 F.2d 420. Although we should not force a new trial by literalism, neither should we deprive the Government of its right to have a square ruling on the motion for new trial. The case has changed with Gorsalitz now controlling.
Reversed and remanded.
"(c) * * *
F.R.Civ.P. 50(c) (1).
Though "abuse of discretion" is admittedly a slippery concept, we have attempted a definition as being "a seriously erroneous result" and a "miscarriage of justice". Whiteman v. Pitrie, infra 220 F. 2d at 919.