*1 VI FEES

ATTORNEY’S

Appellee the trial contends denying

court erred in an award rea attorney’s

sonable fees under 35 U.S.C. § 37(c). Appellee,

285 and Fed.R.Civ.P.

however, cross-appeal from the took no decision,

district court and it es is well appellee, in

tablished that an the absence cross-appeal,

of a cannot “attack either decree with view [trial court’s] rights enlarging his own thereunder * * * rights lessening or of his * * adversary Morley Construc Maryland Casualty Co.,

tion Co. v. L.Ed. (1937); see, Securities Exchange Fifth Avenue Commission v. Lines, Inc.,

Coach 435 F.2d 1970); America, United States Inc. v. Insurance Fireman’s Fund Judge, Hays, dissented Circuit (8th 1970); opinion. filed Casualty Agency Southern v. LaSalle Co. (8th n.7 1968); Farm Mutual Automobile State Pennington, Insurance Co. (8th the district court respects. accordingly affirmed in all WEST, Plaintiff-Appellee,

Ethel M.

Gary JUTRAS, Defendant-Appellant. M.

No. Docket 71-1786. Appeals,

United States Court of

Second Circuit.

Argued 16, 1971. Nov.

Decided Feb. *2 daughters returning

her two were shop- their homes in Montreal from a ping trip Burlington, in Vermont. pas- Plaintiff was seated front in on the senger side, driving Mrs. Clinton was girls and mately approxi- the were in back. At P.M., 5:15 the defendant’s car struck Mrs. car from Clinton’s the rear. disputed It not that the cause of this accident was that defendant while trav- eling speed asleep at a rate of fell at the wheel. Injury

II. Plaintiff’s hospitalized No one was as a result of n injury. Clinton, filling Mrs. in out the Vermont State Motor Acci- Vehicle Report, dent space left blank the in- for dicating personal injuries. (Wick, Dinse, Burlington, Vt. John M. However, Mrs. West suffered consid- Clapp, Allen, B. and Michael Dinse & day erable in her neck. The follow- brief), Burlington, Vt., for on the ing the accident went in- she to see an fendant-appellant. in ternist Montreal. He recommended (Wil- Morse, Burlington, Vt. L. James Two-Twenty-Twos, take codeine Jenkins, Quinn son, Curtis, Bryan, & pills bought pre- without a can plain- brief), Burlington, for Vt., scription, and that she rest in bed. tiff-appellee. X-rays. specified doctor also X-rays showed that Mrs. West suffered MOORE, MULLI- HAYS Before bones, her and that with no fractures of Judges. GAN, Circuit straight- exception of some minimal ening of normal cervieal-thoradotie Judge: MOORE, Circuit they spine, indicated no Gary Jutras Defendant-appellant, M. following accident, Mrs. The week (defendant), appeals from a diffi- West remained in bed. She had against him upon jury verdict entered raising pillow. culty her head off plaintiff, West in Ethel favor During the second she was able week (plaintiff in sum of West), or' Mrs. get up bed, stayed at home. out of inju- personal for to resume most Thereafter she was able by plaintiff for which sustained ries activities, not her could normal defendant liable. held engage any requiring strenuous work appeals from the deni- Defendant also Thus, acci- before the effort. whereas verdict to set aside al of housewife, was active dent Mrs. West grant trial “on the a new lawn, gardened, shoveled who cut snow, damages alone.” painting, did house and even granted plain- engage the trial court Because the accident she after verdict a directed also forced tiff’s motion activities. She ap- liability preparing from which refresh- issue of her curtail work taken, meetings confined in St. facts will be peal Cross ments for Red largely Lambert, issue. kitchen volunteer and her patients. hospital mental a local I. The Accident Starting December surgeon in Mon- orthopedic plaintiff, saw On November suggested Murphy. He Clinton, treal, daughter, her friend Mrs. heating pads, baths, ary 23, hot and a Thomas 1971. On the basis of the first collar1 pain. to relieve her neck He also examination and subsequent these two physiother- recommended that she see examinations, Doctor Terrien testified apist. physiotherapist suggested his conclusion was that Mrs. West exercises that would and did relieve the sprain “had a cervical neck with irrita- *3 * * * stiffness in her neck. Mrs. West saw tion of the scalene muscle and Murphy times, Doctor four or five and sensory also irritation of nerve physiotherapist times. Final- three supplying the left arm and forearm.” ly, tingling because of a in her left While he testified that he believed hand, neurologist. saw a she improve the condition of her neck would time, predicted over Though he she would the condition her neck had perform not be able to improved the tasks of accident, at time since the secretary years, for two and that she of trial still not do Mrs. West permanent disability would have a of the heavy housework, occasionally wore the expressed opin- neck of collar, particularly driving, He no when 10-20%. ability perform ion as retary beyond pill to her to as a sec- to alle- once awhile took a codeine years two from the date viate the in her neck. aAs result predicted of trial. He also that she medi- visits to doctors and related develop laundry, expenses, would cal osteoarthritis4 as she cleaning, grew older and that this affliction taxi bills occasioned to her would aggravate neck, expenses the effects of her As Mrs. West incurred approximately $1,152.2 codeine, treatment he recommended heat treatments, wearing and the In Mrs. the summer of 1970 West’s Thomas collar. supplement in- husband come, To her died. return to she decided work. to Kuhlmann, orthopedic sur- sitting baby too found it tried She geon Burlington part- from South in a In November took strenuous. she Orthopedic time Associate Professor of boarder, at At the time of month. $25 Surgery College the Medical at at the trial secretary, intended return to work as a to University Vermont, testified for occupation previous her to fendant. had He examined West marriage in 1952. in March of 1970. His conclusion impair- permanent there was Testimony Experts III. Trial neck, at ment to her and that she could re- secretary turn to work at as a the time West, In March of 1970 Mrs. at her of trial. request, counsel’s visited internist Burlington, from briefly Doctor Terrien. He Hugh Hughes, Mr. Vice President and again saw her in November Comptroller Company of Petrofena day trial, and on the Febru- Montreal, before as Mrs. West’s testified very 1. “A Thomas collar would be somewhat lows: “A scalene muscle is not taking similar a turkish towel and human, in the in the dramatic muscle your wrapping it It horse, around neck. is how he flicks the flies off thickness, about the same but the Thomas Id. at bis neck.” 62. collar is much stiffer. As a result of get older we “All of us know as this, keeps the neck at rest.” Testi- shrink, shrinkage and the is due to mony Transcript Terrien, of Doctor fact vertebrae cushions between our Trial at 60. begin begin deteriorate, form and we expenses approxi- spurs are broken down bone which is described osteo- mately as phytes, follows: medical and related and this leads to osteoarthritis expenses $300; cleaning spine. per house bills— This cent — ; laundry expenses $66; $694 people age taxi fares . .” over the of 55 . . — —$107. Id. at 71. Transcript of Trial at Doctor Ter- rien described the scalene muscle as fol- prospects employment secretary. aas are excessive was articulated employees, of some office court in as follows: he concluded that Mrs. need reverse, If must be because of regain or5 6 months the skills of ques- an abuse of discretion. If the secretary; if she took a full-time re- tion of ance, or in excessiveness close bal- only course need fresher then she would very we must affirm. The na- 2 or In his she was 3 months. problem ture of the counsels restraint. week; presently employable at $77 judge Just as the trial called is not with the refresher course she could start upon say the amount is whether a week. He also testified that $100 higher personally than he have secretaries, depending on the na- awarded, judges appellate so are we paid positions, ture of their bosses’ are not to decide whether we would have up Though he testified week. $160 *4 pre- set if aside the verdict we were employees physical that with disabilities siding trial, at the but whether employable, expressed are not he that it would be amount is so injury opinion on whether Mrs. West’s permit justice stand. to to denial of working disqualify her from as a every give the of We must benefit secretary. judgment trial of the doubt to surely judge; there must be trial, At the time of Mrs. West’s life limit, has upper and whether expectancy years. was 36 question surpassed is not been evidence, At the court the close respect reasonable to which fact with granted plaintiff’s directed differ, question may men liability. on After verdict issue of law.6 $55,000, jury returned verdict approved implicitly This test has been The for a trial. defendant moved new Grunenthal;7 Supreme Court without court denied this motion to make directs us that case further 15,1971. April on bear- appraisal of the evidence detailed Dagnello applying ing on 5 is IV. Whether the Verdict Excessive ap- that detailed have made We test. by our statement praisal indicated the ver- conclude facts, The standard for review dam $55,000 excessive.8 is dict of age they to determine whether awards Meredith, S.W. See, 466 modify v. power Sinkhorn and remand for the 5. The to $1500) ; ($2500 (Ark.1971) to entry appropriate 2d 927 is con- of an Hospital, Memorial Elmbrook v. Tills 28 2106 § ferred on this court U.S.C. 665, 699 N.W.2d Inc., 180 (1970). 48 Wis.2d personal $25,000 for ($35,000 (1970) to Long Co., Island R. 289 v. Moines, City Engman ; injuries) of Des v. 797, 806 (1963) 1039, 235 N.W.2d 125 255 Iowa gov applicable to remittitur standard McComb, ; $19,000) ($25,000 Ardoin v. by federal, not state law. Karlson erned 1971) (La.Ct.App.3d Cir. 84 251 So.2d Corp., 43RD Street 370 305 East ; $2000) Liebman ($4500 Riolo v. 467, Cir.), n. 1 387 Inc., Specialties, A.D.2d Bathroom 1690, 18 L.Ed.2d 625 U.S. 87 S.Ct. Dep’t N.Y.S.2d Byrd Ridge (1967). Blue Rural mem., N.Y.S.2d , 25 N.Y.2d aff’d Cooperative, Electric 536-539, 356 U.S. 525 ($62,000 (1969) 252 N.E.2d 893, 2 L.Ed.2d Chuckrow $45,000) Robert Statella (1958) ; & Arkansas Brown v. Louisiana N.Y.S.2d Co., 28 A.D.2d Constr. (5th Ry. Co., $5,000); 1967) ($15,000 Dep’t (1st Ins. Dealers Mut. Grain Richoux Cir.), writ Long (La.Ct.App.3d Island R. R. Grunenthal 175 So.2d refused, 21 L.Ed. 178 So.2d S.Ct. 248 La. 2d 309 $4,574.06 re with ($5,622.25 to (1965) $20,738.25 plaintiff, spect to one pow- frequently exercise the State courts other) ; respect to the modify personal $10,738.25 with er awards. articulating Beyond Charge Earning the standard of V. The Court’s review, greatly helpful cases Capacity are deciding particular whether verdicts are ai'guing that the verdict is exces- Instances can be found where excessive. sive, defendant further contends $55,000 than have been verdicts smaller the evidence introduced insuf- larger reduced,9 than and where verdicts charge impaired ficient to warrant have not been reduced.10 earning capacity, and that by the in such factors considered courts correctly failed to state the measure of appear (1) the reviews to be amount impaired earning capacity. expenses occasioned medical other (2) extent of Because have decided (3) plaintiff’s pain $55,000 excessive, verdict we would earnings, past loss of and future normally necessary not find to discuss (4) plaintiff’s the curtailment grounds reversing alternate activities. normal deny the district court’s decision for a new How- fendant’s motion ever, trial. First, case plaintiff proceed elects to with spent $1,152 as a result trial, questions new these same Second, neck at trial she testi subsequent appeal. To the basis for a to sec fied that she would like to return consumption judi- *5 prevent a needless along retarial If we assume with work. resources, cial will therefore we examine would not be Doctor Terrien that she the merits of these contentions. years, we two and if able to for generous assumption further make the agree First, do not with that return to work immedi she could evi that defendant there insufficient year ately week the first for $100 charge jury support the on dence to year, for and week the second $160 impaired earning capacity. Vermont earnings loss occasioned then the question dam the law clear that on ages injury equals $13,520.11 by neck the go jury to the is sufficient “[i]t pain Third, did suffer while Mrs. West the to afford is such as evidence daily and of her activities while some intelligent estimate means of ap curtailed, that were 'we believe recovery may be for amount which by $10,000 proximately to her afforded 12 testimony Ter had.” compensation ample $25,000 jury Hughes provided the rien and Mr. pain, and inconven such upon es which to basis with sufficient may controlling, Although not earnings. ience. Doc timate West’s lost plaintiff ad not that herself in be noted that she would tor Terrien testified secretary for two requested $25,000. to work as a be able clause damnum (1968) ; 1638, Co., Long La 20 L.Ed.2d 302 A.D. S.Ct. Island R. Rizzo v. R. 23 York, Dep’t (2d 762, v. New New Haven and France 258 N.Y.S.2d 576 2d 1965) Co., 649, ($10,000 R. 650 Hartford R. $3500 1961). (2d ; Port, suffering) 120 Ohio Cir. Black Cty. (Mahoning 369, App. 202 N.E.24 038 by multiplying 11. 52 is obtained This sum $15,000). ($22,000 1963) by adding (5200), the resultant 100 product product Lighting See, Long times 160 g., to the of 52 Island e. Caldecott (8320). (2d 994, o., Cir. F.2d 996-997 417 C 1969) ; Co., Trucking v. Ideal Botsford Fletcher, 130 99 Vt. Hall v. ; (2d 1909) Wicks 681 Cir. 417 F.2d Henken, 685, (1925) A. 686 Trombetta 1907). (2d F.2d 395 378 491, Valley Co., Champlain Vt. Fruit 117 797, (1953) ; 494, Brown v. A.2d See, Atlantic Coast Benazet v. 556, 380, Sutowski, 377, A.2d Vt. 697-698 R. F.2d Line R. High Valley Lehigh 1971) ; v. State Smith McNeil v. (Vt. way Board, 262 A.2d R. 390 U.S. HAYS, (dissenting): Judge Hughes years, to the Circuit as and Mr. testified might possible earn un- that she salaries from the order of this court I dissent assumptions to her der different granting new trial on starting skills. agrees appellee to remit unless $55,000. agree jury’s Second, award of with defend charge court’s on that the district ant by of a mo- the trial court denial earning capacity impaired did not cor ground of the for a new trial on the tion rectly applicable law.13 state Vermont jury’s award excessiveness made In its the court clear appeal is not to be reversed jury what it could consider jury award] “the amount [of unless plaintiff earn but for the would a denial of it would be so is justice these should discount permit it to stand.” court value. But the amounts 797, Long R., Island R. jury it must did not instruct This formulation plaintiff what would earn subtract from Supreme approved Court plaintiff what Long R., U. Island R. Grunenthal v. injury.14 While earn even with 21 L.Ed.2d S. S.Ct. there that Mrs. West was evidence Supreme re- (1968), Court in which the secretary to work as a be able granted a remittitur versed years, should have been for two appraisal of the detailed “[A] court. instructed to deduct from estimate damages,” bearing id. at evidence for” its esti Mrs. West’s "but income that there indicates 89 S.Ct. at during earn mate of she will setting what ground proper aside the is no beyond. years two jury’s verdict. deciding approximately “that court de- of the district The decision [appellee] $10,000 afforded to nying motion for a new defendant’s *6 compensation ample $25,000 judgment is is reversed on the pain, inconven- for such However, plain- if a new trial ordered. (emphasis added), the . .” ience . agrees $30,000 of the tiff remit unjustifiably quite substituted court has days from within 30 award of jury. filed, then that this the date that, a re- denying established evidence decision court’s district experienced accident, appellee is af- sult for a new fendant’s or performing difficulty housework in firmed. (1952); 377, 380, object Bald 91 A.2d to the dis failed 13. Defendant 61, 72-73, Gaines, 102 A. ground. Vt. win v. on this trict court’s v. Flota precludes appel Conte 343-344 a failure “Whether such Cf. Estado, F.2d Del alleged Mercante a mat error late review of 1960) (2d federal, : Cir. law. McNamara not state ter of (2d Dionne, F.2d determining principle general [in “The Nor Fed.R.Civ.P. Cir. mally easily earning power] stated. loss of preclude re a failure such objective place the libelant is to Indiviglio, 352 view. States United position as would the same economic (2d injury had not have been his L.Ed.2d 663 accomplish this “We seek occurred. goal However, banc). (1966) (en review which, over- stated in a formula the contention order the merits of determining form, simplified consists of appeal ground should eliminate this earning power annual what libelant's be there trial and should there be a new would have been proper objection. thereafter, deducting be it will what Valley ex- multiplying libelant’s Champlain the result 14. See Trombetta discounting product pectancy, 94 A.2d Vt. Fruit added.) (Emphasis Sutowski, value.” (1953) Vt. Brown v. light labor, forego .other she had to community

certain which formerly engaged,

had that from time to

time from and that she suffered pain. she would continue to have such precisely measur- cannot items justification

ed. There is no setting award of the aside the

court’s jury

because the court believes “ample.” The

smaller would be sum does not constitute denial

award

justice the conscience. nor does shock suffering Larger pain awards recently upheld this court have been B. Friedman v. N. cases. See similar Motorcycle Imports,

C. 1971); v. Atlan- Benazet R., Line Coast

tic States, 1971); Fuchstadt United 442 F.2d 400 court’s re- the district I sustain grant a new trial.

fusal to 71-1019, IDZOJTIC, Appellant in No.

Nick and John Skocich *7 RAILROAD COM- PENNSYLVANIA PANY, corporation

Edward KOZORA.

Appeal SKOCICH, of John in No. 71-1020. 71-1019,

Nos. 71-1020. Appeals,

United States Court of

Third Circuit.

Submitted Feb.

Decided March