This action for personal injuries, based on diversity of citizenship, is before the court for consideration of defendants’ contention that they are entitled to a new trial after a verdict for plaintiff in the amount of $10,000.
The trial judge is of the opinion that defendants are entitled to a new trial because of thе following remarks made to the jury by counsel for plaintiff in his closing speech, so that consideration of the other grounds stated in the motion for new trial arе not necessary:
“How much would you pay for a neurosis ? How much would you pay to be afflicted with a condition that you couldn’t hold cups or saucers, something that is going to be permanent? Would you take it for $5,-000.? Would you take it for $50,-000.00 7” 1 (Page 1 of partial transcript.)
Construing the evidence in the light most favorable to plaintiff, he had inhaled deleteriоus gas when working in an icebox as the result of the negligence of the defendant fumigator in failing to properly air out the icebox after fumigating it with the gas. Plaintiff had not lost any days of work, except the day on which he inhaled the gas when he was taken to the hospital and returned home at approximately 5:30 P.M. The medical testimony indicated that he had a neurosis involving loss of sleep, loss of appetite and weight, and lack of interest in recreational аctivities, which neurosis resulted from the inhalation of the gas. 2
In view of the lack of evidence that the inhalation of the gas was the proximate cause of any substantial neurotic effects, the principle long recognized by the Pennsylvania courts that it is error for counsel to make any suggestion to the jury оf an arbitrary amount of damages for personal injuries is particularly applicable. In Joyce v. Smith, 1921,
“ * * * the remarks were highly improper, as their tendency would necessarily suggest to the jury sums they should allow in thеir verdict. It has been the uniform practice of this court to hold counsel strictly accountable for language used in addressing the jury, and wilful or reckless misstatements or ut- *367 ierances calculated to unduly influence their verdict will be considered grounds for the withdrawal of a juror and granting a new trial. * * * Causes must be fairly presented and defended, and the duty of counsel in this regard is not less important nor less imperative than that of the trial judge. A cause is not well tried unless fairly tried, and а verdict obtained by incorrect statements or unfair argument or by an appeal to passion, or prejudice, stands on but little higher ground than one obtаined by false testimony. * * * The amount of damages claimed is not to be determined by an estimate of counsel, but by the jury from the evidence before them, and any suggestion to the jury of an arbitrary amount is highly improper. * * * While it is true in the present case, no definite amount was mentioned, yet, if plaintiff’s version be accepted, the language contained a suggestion to the jury that ‘thousands of dollars’ were claimed for pain and suffering. This expression suggested the amount to the minds of the jury almost as clearly as if counsel had stated a definite number of thousands.” 3
The above-mentioned principle stated in the Joyce casе is followed by the judges of this court, and it seems particularly applicable to the factual situation presented by this case.
Furthermore, although the trial judge understands that he is not bound by the Pennsylvania cases on this point,
4
the United States Court of Appeals for the Third Circuit has emphasized that federal courts “shоuld not be astute to widen federal diversity jurisdiction.” McCoy v. Siler, 3 Cir., 1953,
*368 Order
And Now, April 18,1957, It Is Ordered that the judgment entered in favor of plaintiff in the amount of $10,000 on the verdict of the jury shall be set aside, that defendants’ motion for new trial is granted, and that a new trial shall be held in the above-captioned case.
Notes
. Counsel for defendant promptly moved for the withdrawal of a juror and the trial judge sаid at side bar (page 2 of partial transcript) :
“It is wrong, but I am going to let the case go ahead now since we have gone this far. I may decide to grant а new trial on it afterwards. * - * my understanding is that that is ground for a new trial, mentioning any amounts.” The trial judge also pointed out that compensation, not a purchase price, was the basis of damages for injuries. Although the trial judge instructed the jury that they “must disregard any figures that have been mentioned by counsel” (pages 3 and 4 of transcript), counsel for plaintiff requested (which was clearly unnecessary under ITed-Rules Civ.Proc., rule 46, 28 U.S.C., in view of counsels’ statement of their position at side bаr — see page 3 of partial transcript), and was granted, an exception to such instruction in the presence of the jury, and the trial judge does not believe the instruction repaired the damage which had been done. The fact that the Chief Judge had suggested $1,200 as a settlement figure at the pre-trial cоnference is only one of many indications that the $10,000 verdict shows the instruction was not effective in removing the prejudice created by counsel’s remarks. Cases such as Smith v. Philadelphia Transp. Co., 3 Cir., 1949,173 F.2d 721 , relied on by plaintiff, are inapplicable to this factual situation, since the court found in those cases thаt no prejudice did result from counsel’s remark.
. There was also weak evidence of a causal connection between a right bundle branch bloсk in the heart and the inhalation of gas.
. See Quinn v. Philadelphia Rapid Transit Co., 1909,
. See Garrett v. Faust, 3 Cir., 1950,
183
F.2d 625. In the Garrett case, it is noted that the counsel for plaintiff, who was not a member of the Pennsylvania .bar and not familiar with the Pennsylvania rule stated in the Joyce case, mentioned an overall sum as the damages in 'his opening statement [see Garrеtt v. Faust, D.C.E.D.Pa.1949,
. See, also, cases cited in Delaware River Joint Toll Bridge Commission v. Miller, D.C.E.D.Pa.1956,
. See Guaranty Trust Co. of New York v. York, 1945,
“But since a federal court adjudicаting a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot * * * substantially affect the enforcement of the right as given by the State.
“Erie R. Co. v. Tompkins [304 U.S. 64 ,58 S.Ct. 817 ,82 L.Ed. 1188 ] was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intеnt of that decision was to insure that, in all cases where a federal court is exercisiug jurisdiction solely because of the diversity of citizenship of the parties, the outcome of *368 the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigatiоn, as it would be if tried in a state court. The nub of the policy that underlies Erie R. Co. v. Tolnpkins is that for' the same transaction, the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away, should not lead to a substantially different result.”