*1 1084 community in a would residence REVERSE the ruling
six months district court’s that knowledge problems of the insure better the durational residency requirement is un- candidate, knowledge of the better voter constitutional. voters should be the ones to candidate qualifications
decide the they whether feel confi-
and to determine know they him.7
dent persuasive Mr. Wood
However argument be, may we believe
ward’s line of provisions certain precluded
it is Supreme Court. It Constitution and MENARD, James argue, as certainly difficult Woodward Plaintiff-Appellee, here, residency all durational re has when the quirements are unconstitutional v. provided has mem Constitution itself al., PENROD DRILLING COMPANY et Representatives House of must bers of the ants-Appellants. Defend be United States for seven residents must years,8 be residents of the Senators Charity Hospital Louisiana, years,9 for nine and the Pres United States Intervenor. ident must be resident the United No. 75-1591. Moreover, years.10 for fourteen States Stark, (D.N. 353 F.Supp. Chimento 1211 United States Court Appeals, mem., H.), 414 aff’d U.S. 94 S.Ct. Fifth Circuit. (1973), 39 the Supreme
38 L.Ed.2d Court Sept. 1976. seven-year upheld a durational residence requirement gubernatorial candidates in Sunu Hampshire.
New Two later Stark,
nu v. (D.N.H.1974), F.Supp. 1287 mem.,
aff’d 420 U.S. S.Ct. (1975), the Supreme
L.Ed.2d 434 Court af three-judge rejecting
firmed a decision challenge
equal protection seven-year to a requirement
durational residence of light
fice of state senator. of the inclu requirements residency
sion of in the Con Supreme
stitution and the recent Court de constitutionality upholding
cision
seven-year require durational residence senator,
ment for the office of state we
cannot residency require find a durational
ment of six months for the of city office equal
commissioner to be a violation of the
protection clause Fourteenth Amend
ment. we
Accordingly, AFFIRM the decision of striking
the district court free- down the requirement
holder but unconstitutional U.S.Const., Requirements, I, 7. See Residence 9. Durational art. § 3. 378-79. U.S.Const., II, 10. art. 1.§ I, U.S.Const., 2.§ art. *2 Livaudais, Jr., Orleans, La.,
Marcel New defendants-appellants. Tschirn, Reck, Darryl J. Gothard J. tairie, La., plaintiff-appellee. RIVES, GEE, Before GOLDBERG Judges. Circuit RIVES, Judge: Circuit plaintiff, born J. on February was 19 age job defendant, with the got when he (hereafter Drilling Company Pen- on October 1972 was admitted to the working on a rod) a roustabout submersi- Kaplan Hospital Memorial A drilling rig. very early morning Trahan, ble surgeon, Dr. operat- October (about of October 10 months hours on Menard for a ed bilateral hernia. Me- employment Penrod), Menard after discharged hospital was nard working storage alone in room of the 25 and October continued treatment as an *3 lifting metal “inserts”1 off the floor rig, outpatient 507). for several (App. weeks a box or about putting and them on shelf 10,1972, On November attorney that high. Menard testified he eye level his complaint filed titled “SEAMAN’S pusher, Mr. Haley, told his tool the inserts 5). SUIT UNDER THE (App. JONES ACT” “I heavy for one man and needed were too jury agree did not on a verdict at the “to do but he said the best I help” could trial, on and November 1973 a (App. short-handed.” because [we were] mistrial was ordered. 462.) Haley differently. Mr. testified Me- trial, Before that Menard had been mar- picked up he five nard further ried twice. His first marriage ceremony put of the inserts and them on or six on performed January 1973 and slipped or box. The next one in shelf his later, about one January week his he fell backward and down with the grasp, permanently separated bride him from stat- striking forcibly insert abdomen.2 ing her reason that he was “not a man” pusher, Haley, tool Mr. out nard’s filled 509, 510). Menard testified that he report (App. accident got married to another in October, woman According Haley to when de- 1973, the before trial, month the first but to have drive anyone clined Menard some continued to have sexual problems up to the Louisiana, to in Kaplan, 200 miles his home testimony time of his on the second trial. Menard, despite pain, ashore, much went dock, his ear got in at the and drove home The second trial occurred on December 12 arriving between 3:00 and 4:00 P.M. He and 1974. The special returned a in stayed days bed at home several and verdict3 as follows:
Interrogatories Jury to the s' Company Was negligent? defendant "1. (Jes))or Y Answer _No YES, (a). "If question No. answer answer "(a) any play part, Did that however slight, producing plaintiff's in [sic] injury? Menard's Y^¿Yes) or _No Answer drilling type 1. Metal inserts “are the right tool part, right here, went on the bottom your you pipe up keep use to hold it portion, up against lower it smashed me falling you hole from down in the whenever are help, the floor. Then I screamed for and this making screwing or a connection in another guy storage compartments that was in the two joint.” (App. 559.) “The insert is described as away me, doing something drilling piece equipment varying metal room, help next and he came and tried he size, slightly generally being but two about got there, get up it off. When he I told him to long, to three feet six inches thick some- try to lift it off of me because if was smother- triangular shape, weights vary- what ing me. I couldn’t breathe. pounds.” ing (Appellants’ from 100 to 160 lifted, high “He enough but he couldn’t lift it brief, p. 4.) again. and it fell me down on I told him to lift up enough 2. Menard described the accident in detail as it so I could roll out. When he lifted follows: up, it I like slid from under. Then he went for ” you ground? duty night. Did fall to the “Q. the driller . . . Yes, me, it, I catch “A. when it hit tried to straight fell and it floor with me. I 49(a), 3. Under Rule Fed.R.Civ.P. me, just It couldn’t move at all. smashed it unseaworthy? rig drilling barge "2. Was #62 1/No Yes Answer YES, (a). 2 is answer question No. answer "If cause proximate "(a) unseaworthiness Was injury? Larry Menard's plaintiff's [sic] or _No Answer _Yes 2(a) 1(a) No. question or question No. "If answer YES, question No. 3. answer negligent? Larry Menard "3. Was ^ k(Yeq! No Answer (a). YES, answer No. 3 is question answer "If *4 his cause of proximate a "(a) negligence Was that injury? t^j°: or Yes Answer NO, 3(a) is No. question the answer "If (b) . answer however any part, play "(b) negligence Did that plaintiff's slight, producing in injury?^^_ \Sfíe§)or No Answer 3(b) No. 3(a) question or question No. answer If the "4. did percentage, in YES, degree expressed to what is injuries? his contribute plaintiff's
25_% 2(a) No. question question 1(a) or "5. If the No. answer YES, plaintiff's the amount in dollars state damages. " A. Grome Elitha #18 12/13/74 Foreman" 263-264.) 175, 176), vit (App. plaintiff that verdict the Judgment upon was entered introduced insurer; the stipulation parties following its a against Penrod and the facts: post-trial motions were de- the defendants’ nied; appealed. defendants We the “1. That at time of the plaintiff’s appeal by to the issues raised on de- come alleged he was injury employed by
fendants-appellants. Company; Drilling Penrod plaintiff’s injury
“2. That at time of A SEAMAN MENARD’S STATUS AS employed by Drilling Penrod 62; Company Rig aboard their # court, The at the time district Rig # 62 was a “3. That movable drill- 30, 1973, granted trial on November barge (jackup rig) by ing owned judgment summary motion for plaintiff’s Drilling Company; Penrod # 62 rig being of Penrod’s a to the status navigation in and as to Menard’s plaintiff injured vessel “4. That while being Rig á seaman and member of crew of in # 62 while the course aboard (App. 169). scope employment said vessel addition to with lengthy Drilling Company; that motion affida- supporting Penrod completely quirement # 62 had been Rig “5. reinforced by That statute in cases and delivered to under the brought Employers’ constructed Federal Lia- be- Company some months and those bility Act under the Jones Act. alleged Shipman, accident plaintiffs Boeing fore Cir. 411 F.2d year; (See injury, earlier U.S.C. § some time it been in “6. That for had The judge the district were drilling for oil in operation full position than is this Court to judge better Gulf; credibility of testimony. Ulti the time of al- plaintiff’s “7. That at mately the case turns on whether Menard plaintiff rest of leged injury, and the truthfully falsely. jurors The preparing Rig # 62 were the crew obviously testimony. believed his The able tow, drill- for an overseas to its next judge declined to set aside district (App. 177.) ing location.” jury’s verdict. The evidence of the defend op- offered no The defendants evidence negligence in failing provide ants’ a com affi- position to the motion. petent driver of an available forklift or to stipulation parties suf- davit and the operate how instruct it and in genu- ficiently established absence of refusing plaintiff’s request for help was prevent ine issue of fact to the defendants to support jury’s sufficient verdict. relying upon pleading their denials in judge declined also to hold to their put and to them defense affida- *5 the amount verdict excessive. This otherwise, setting specific vits or forth facts has held that the power Court court’s to genuine to of a show the existence issue for new trial for grant a excessiveness of a 56(e), trial. Rule See Fed.R.Civ.P. verdict, or to condition newa upon trial The had oppor defendants a further remittitur, to a is consent “reviewable only tunity upon to offer evidence the second of for abuse discretion.” grave a Bonura v. trial, object repeated to or to court’s the Service, Inc., 1974, Land 5 Cir. Sea 505 F.2d jury you instruction to the that “I instruct 670; 669, 665, den., 1975, reh. en banc plaintiff, the was a F.2d 671. Gorsalitz v. Olin Mathieson aboard a employed seaman and that 1970, Corporation, Chemical F.2d meaning vessel within the of the Jones quoted with approval Judge we Skelly 631.) repeated Act.” at When (App. practical Wright’s test of “abuse of discre in the judge jury the district absence of the a situation presented: tion” in like that here objections for the called on counsel to oral has been “There much discussion of the charge, simple counsel defense a ob made given which content should be to the elu jection to the omission of an unrelated re discretion,’ phrase sive ‘abuse of with the quested and charge characterized that as learning weight against appellate of re only objection “the I have.”4 except relatively versal rare cases. learning largely “This has arisen from SUFFICIENCY OF THE EVIDENCE of consideration cases in which motions The defendants’ motions for ver- directed especially ground for new the of trial — dict, judgment v., n. o. for a new verdict —have been excessive denied. trial were denied. unite very Two factors to favor restricted The of of sufficiency the evidence to such orders. The first of review these is for support jury the verdict the in the deference due trial judge, is the the who and, first instance under the Seventh the to opportunity has had observe the Amendment, re-examination of found facts to the witnesses and consider evidence in by strictly the is limited to rules of jury the trial living the context of a rather than the That re- common law. constitutional upon a cold record. The second factor is However, preserve right appellate think that the did we defendants their review of the object summary judgment not to the order grant. have to instruction in jury’s has to-day.” (App. to the Groves then given esti- properly deference the of fact as present plain- matters the value of the of such mated determination quan- the loss of earning capacity the evidence total would be weight of tiff’s the is second factor This damages. of tum al- constitutional by the weighted
further damage earning In addition for loss of of fact. questions of jury the location jury the could have found Menard capacity, particular finds jury “Where damages having to recover been entitled judge and the trial damages quantum impotent, well physical as for rendered finding on the mo- its to disturb refuses anguish, and Re- pain, mental humiliation. trial, press factors the two new tion for a vel non for each of such covery items of direction, appellate and an same damage dependent upon credibility indeed that certain court should be testimony. be accorded Such before it to all reason contrary award is credibility primarily for the jury’s de- trial. or a new remittitur orders termination, subject to constitutionally lim- by the trial judge ited review Company, Washington Terminal Taylor then, appeal, this Court. We agree 110, 409 F.2d U.S.App.D.C. 1969, 133 holding implicit judge with the trial 93, 24 90 S.Ct. 396 U.S. cert. den. jury swayed was not that the sympathy, L.Ed.2d 85. prejudice when it passion, estimated damages $250,000, and fur- nard’s total verdict stated jury’s guilty in one ther found that Menard himself was damages” plaintiff’s “the amount “$250,000,” dis which and the record contributed 25% his lump sum weight separation injuries. Giving into due to the verdict request for closes no damages. jury rulings found of the trial items various cannot, negligence contributed judge, applicable we under rules ample review, evi injuries. jury’s There was verdict to his hold excessive. 25% per severe suffered dence record, Finding no reversible error in the and that he had been unable injuries sonal judgment *6 proba injury, and would work since his AFFIRMED. long to work for a to be unable bly continue time. GEE, Judge (concurring): Circuit Groves, as “a qualified
Mr. W. E. who and, held two master’s de- consulting actuary,” opinion implicitly of the court I think, correctly permitting from L.S.U. Business Admin- decides that this grees —one University and the other from future inflation as a factor istration to consider Michigan calculating damages error, in Actuarial Mathematics plain was not 528). despite estimated work life reversal necessitating Groves absence injury to be 39.7 expectancy objection. at the date That it would have of an been wage up objection to December his annual error had been made years; reversible $6,000, which for 39.7 to be in this circuit Johnson v. Pen is settled $238,200. Co., percent (5th F.2d amount Cir. would rod was, 4!/2% banc). opinion sum at a discount rate of none (en value of that But otherwise, Groves be both here and I con would correct possibility as to the further in it. cur through the plaintiff might advance pusher, as had been done to a tool ranks pusher. tool Groves Haley, Menard’s
Mr. a discount rate and esti- 4V2%as
selected get would have to the man
mated “that average, increase year, on per
least 2% buying power that he the same
to maintain