*1 751 in 1. Thе action of the district CORPORATION, Appellant, as SUNRAY OIL verdict against refusing to relieve ALLBRITTON, Appellee. v. G. T. if is, unreviewable fact, in re- only the verdict is excessive No. 13148. in law. viewable it is Appeals. United Court of States the district Whether, opinion of 2 in the Fifth Circuit. as matter judge, a is excessive verdict April 26, 1951. right contrary to is, though not mat and, as therefore not excessive law, larger amount than ter of it is in justly ought be, judge thinks it is, law, is so excessive as matter of in as monstrous1 or inordinate reason,3 right he has support find no in F.2d 475. For see 187 former power, duty, in the one case same the same Tex., Bry- E. Philip Brin, Longview, C. against the exces as other to relieve Howell, son, Okla- Houston, Edward Tex., requiring by granting siveness new Wynne, Long- City, Okl., Angus G. homa a remittitur lieu. in Woodfin, Tex., Ben view, Gene M. duty, appellant. other Houston, Tex., 3. The Rice, III, H. hand, Appeals to relieve the Court of Cire, George E. Edwin Smith J. verdicts does not against in excessiveness Houston, Tex., appellee. is exces- extend cases where the verdict Judge, and HUTCHESON, Chief Before Limited sive matter of fact. as McCORD, and RUS- HOLMES, BORAH Amendment, the Seventh SEL, Judges. Circuit only in duty extend cases the verdict is excessive matter PER CURIAM. law, in gross is so or inordinate is> petition for is ordered that the rehear- right amount as to be reason. contrary numbered ing the above entitled and Appeals In such cases the has the Court of be, hereby cause and it is denied. power, against duty, and it is its to relieve by reversing excessiveness in law either McCORD, Judges, HOLMES and law of the dissenting. abusing his discretion relieving it, by requiring (concur- HUTCHESON, Judge Chief mittitur in lieu reversal. ring). was, am, fully in the order overrul- In this case I clear I concur
While
opinion
gross,
mon-
rehearing,
view of
that the verdict is
the motion
ing
inodinatе,
therefore,
strous,
and,
appellant’s motion that
contrary
the statement
reason,
on the to
and if it is
to state its views
excessive it
failure
the Court
of the not so as matter of
the claimed excessiveness
as matter
issue of
was,
being so,
am,
of fact.
as to their
This
I
has left them doubt
course,
briefly
that this
concluded
court is without
I have
proper
inquire
function,
into
my own
state
views.
Railway
Caldwell, Cir.,
Virginia
Armentrout,
2.
Co. v.
Crowell-Collier
170 F.
1064;
Cir.,
Af
2d
4 A.L.R.2d
166 F.2d
Y.,
339 U.S.
70 S.Ct.
folder v. N.
Oases,
3. Law and Fact in Insurance
Texas
Edmunds,
Barry
683;
L.Ed.
Dec.,
Review,
pp. 4, Law
729;
So.
6 S.Ct.
U.S.
Maryland
6;
Co., Cir.,
Reid v.
Cas.
Guthrie, Cir.,
295;
180 F.2d
Pac.
10;
Gray,
F.2d
A.
Quanah & R. Co.
P.
926;
rehearing, Cir.,
see,
But
186 F.2d
410;
Cir.,
63 F.2d
Howard v. Louisiana
Ry.
Louis,
contra,
S. W.
Fer
St.
Chamberlayne,
Co., Cir.,
571;
6 R.
guson,
matter of in the verdict. upon words, play courts have the to re-examine agreeing, therefore, In to affirm jury, fact purpose tried for the of ascer- judgment upon against the attack it of the taining whether the court abused its trial verdict, excessiveness of the I did so with- denying discretion in In new trial. approve out at all or intending either to Caldwell, Cir., Crowell-Collier Pub. Co. 5 v. disapprove verdict 170 F.2d page at said: this court consider it was determine whether merely “If the verdict this case were was not excessive as matter respect excessive in 'both of actual and whether it should or should not have been punitive damages respect and in against by relieved district two, the relation between the thеse facts exercise undoubted and his standing alone would not revers- constitute duty4 equally undoubted relieve ible error. But the verdict here was not excessiveness, if, judgment, such it in his ordinary in the sense an excessive is, larger was excessive was verdict. It one, was an inordinate without thought ought than he justly in amount precedent legal or sound basis.” to be. In the recent case of Commercial Credit Pepper, Cir., Co. 5 which F.2d HOLMES, Judge (dissenting). was tried a jury but did involve majority opinion The did not discuss damages, its asserted case, question constitutional in this or the jurisdiction to review the ruling trial court’s factual as to the amount issue verdict trial, the motion a new re- excessive; being manifestly but often what versed the judgment of the district court on important a court does is more than what it ground that it abused its discretion in says. speak Sometimes what the dо courts refusing a new court trial. The loudly say, that we cannot hear what presented, said: “Under the circumstances happened is not here. what quite independent of the error in the Obviously, this court determined either that charge, we are of the moderated verdict was not plaintiff’s denying erred in motion excessive or that it had constitutional principle for a new trial. well question. Either to examinе recognized in the federal courts that the erroneous, the holding prejudicially granting or refusing of new trial is a fully already latter reasons discussed resting matter within the discretion dissent, the former reasons ‘discretion’,however, trial court. term The presently to stated. guide judicial action, invoked as a expressly that the The court held verdict discretion, means sound exercised with error, was infected regаrd to what is and in the interests sum, $13,084.70 lopped therefrom justice. appellate- And an court is not calling on the without stay place stamp bound to its hand and approval This reduced the of that amount. mittitur -case when feels that $111,915.30, injustice may Quite contrary, verdict result. to the judicial recognized let stand. This action definitely it is in numerous de- implied a determination cisions that necessarily abuse discretion is an manifestly exception amount was not reduced the rule that hr granting that, as refusing of a new assignable trial is not court, authority to Citing had no constitutional as error.” Langnes Green, or to call modified U.S. disturb S.Ct. cific Cir., Lepisto, 128; Guthrie, Cir., Vir- 6 F.2d 4. Cobb v. at F.2d page Ry. Armentrout, Cir., ginia 11; Maryland 933 and note Reid v. 1064; Co., Cir., Pa- p. 4 A.L.R.2d Southern Gas. 63 F.2d striking Armentrout, Virginian Ry. law. common Co. jurors’ misbehavior over the shoulders 166 F.2d A.L.R.2d 1064. prevent devised case, F.2d, Virginian Railway restriction, injustice statutory because 407-409, pages the court said: “The *3 appellate power. having The old statute problem in a case of assessing damages of superseded, been the reason for the device approached this sort is one which must be has ceased. * * * with common sense. case, may majority instant the of trial power “The the have deemed verdict mani- the moderated to set the such cir- aside verdict under degree festly but not such a excessive to established, is the exercise cumstances well bias, prejudice, passion, as to evince regarded of as being not the part so, jury. on the If was of the by of but derogation jury trial prejudicial for the court to affirm right. safeguards one of the historic appellee the unless the remitted * * * the excessive thereоf. It also' is power of reverse the “The this court to true that majority may the have deemed the for failure to exercise the manifestly moderated verdict excessive failure, here, amounts to an where such degree but not to such a as to show an abuse ** discretion, abuse is clear. likewise of discretion the trial on the refusing grant a the new trial unless “That refusing abuse discretion in plaintiff portion. rеmitted the excessive exception set aside verdict is the rule a an Upon hypothesis, the first the court of a new the granting refusing jury, the trying second, was definitely error, assignable judge, district trying when should (decisions: recognized following by tried re-examined facts [Citing them].” jury, such a re-examination would because by apparent any Thus it is fact tried according not have been “otherwise” than jury may a be by re-examinеd to the rules of the common law. purpose for of ascertain- In reducing by $13,084.70, the verdict ing whether the trial court abused its dis- this court did not eliminate that sum from cretion in refusing a new trial pecuniary damages the total jury because the had abused their discretion by plaintiff, sustained since under the rendering manifestly a verdict law of Texas he was entitled to' recover damages. apparent is also this aсtion amount due him that at common there such paid excess of the sum him the insurance judicial circuity of review of a fact tried Clearly, carrier. it was within the by jury had abused their dis- upper this court to determine the limit cretion in rendering permissible verdict under evi- King’s Bench, verdict. The exertion dence. This necessitated a determination superintendent powers, re-examined of the maximum amount that the most facts determine whether the warranted; favorable view evidence discretion, guilty been of an abuse of justice required under law remission apprehending rendering excess, be and can satisfiedwith nothing for manifestly excessive damages Ample power less. of such determination principal species was a of misbehavior granted under Section by jurors. Blackstone, p. seq. Lewis’ 1347et Title the United States Code. By 22 of Judiciary Sec. ofAct courts were forbidden to The questions then are: were pecuniary this; do Judiciary but Sec. 2106 of injuries Code plaintiff 28 U.S.C.A. were re- fairly sustained warranted quired it, do since the 7th Amendment view of the substantial evidence impliedly not, authorizes the re-examination in If this case? what was the maxi- except tried otherwise amount so mum warranted? If compen- than in accordanсe impaired with the rules of the sation earning work-week, day damages, it as a with the Sabbath as one element of
assumed rest, proven earn the most long been should 'be a sum as would such lessened that mankind equal of this effective economical schedule return the value expected to- adopt. intact at ability, principal sum If could be leaving the can death, perform per sum that hоurs plaintiff’s be a manual but should labsr equal hour, annuity per to- this receive purchase would week at he would $1.10 probable per year. life of the He return total of earns during the $2288 $960 per station, year from reliable statistics plaintiff, working filling calculated in a life. theory of human let average disregard duration us that on approach problem us this him to-be not able to Let have found *4 prevailing aspect. presume work. We cannot that uniformly interest rates will remain low time at the The testified that years. present judg- for 34 or 38 Under injury making about two hundred his he was ment, $111,915.30 if the invested award were weeks, having given been every dollars two 3%, Allbritton would receive $3357.46 per Both wages raise hour. a to $1.10 year a for rest his and life still present employer testified that he and his $111,915.30 years. his at the end of 38 working trial he was at the time оf the to filling making at a and In 13 Tex. the Texas law $80 station Jur. accepted per All- to that month. stated be the allowance should not If $90 testimony, their yield own it was such sum as would an annual return britton’s damages compensate to o-f corresponding sufficient the annual value award him ability, principal pain suffering endured his lessened leaving him for the and hospital him, necessary belonging medical and sum still to the estate of for the him, plaintiff death, expenses for an his an incurred and but should be after represent annuity purchase an that would amount that would additional sum injury equal of his to loss his earnings during of what his cash value deprived earning during expectancy calculated a reliable he was years average old He was to of human remainder his life. basis as duration and, according injury, be the time his life. should also nоted that nowhere him, annuity has an table introduced it taken into account this that .been years, taxes, subject expectancy had life 38.28 is not he income wages whereas his would have though according to- Commissioners Table, been, Ordinary portion and substantial of the same Mortality 1941 Standard taxes, might to pay effective in Texas have been used es- which was and other time, pecially progressеd expectancy years an as the de- this he had his states at pendents self-supporting. only years. became Accord- 34.29 While he testified weeks, every ing to the Commissioners 1941 earning he was two- Standard that $200 Ordinary Mortality Table, $63,096.18 wage hourly also testified that his had he would purchase Therefore, age recently years been for a man 34 an- raised $1.10. life, per week, nuity pay that would him 56 hours if he worked $2288 the earned-interest only time a half for those hours of which received Sunday subject time would be to- income taxes. If and double for his over pain work, only be this amount we pay total would add his $149.60 plus hospital suffering, medi- every $6500 two weeks. bills, $79,596.18, cal we have which would person’s de- proper to consider a It is (in- leave the verdict excessive capacity years as the earning go- creasing ordinately you please). who-had especially one fourth- by, Another view award is If this: and whose work was grade education $111,915.30 majority allowed labor. It is to manual difficult restricted Allbritton, doing 2%%, hard manual were invested to believe Allbritton eight receive labor, annually have worked hours would $2797.88 could the rest week, life, days the rest of his of and leave intact his at his death day, seven six-day standard of a full amount originally Biblicаl received. year- life. This appellate power. than ancient ly o<f more common-law This income $509.88 $2797.88 compared All- previously mentioned our be $2288 atrophied; an arm might britton if he 40 hours even make worked become legislation fully per life. said cannot for the rest This like Sec. 2106 week clearly against it; only Supreme set restore a decision of the Texas law as above completely. Court can forth in 13 184. cure Tex.Jur. cir- Finally,
There is a within this serious conflict it cannot be pro- denied cuit, circuits, various cedural among England common law of on the 15th December, legal approach by correct was in a state of flux. federal court to- the of excessive In question Lord Mansfield said that he had litigation. damages in personal-injury might This no doubt give argued opportunity reconsidеring case and submitted to a court an a verdict May 17, 1950; judges of three where given, been en present re-argued re-submitted to- the court but that dissatisfy case did banc November decided on him. 3 (KB), Eng.Rep. Burr.1846 February 15, Burrow, Did the ex- The reporter, court fail to says: “Mr. Justice jurisdiction fully grant- ercise Ashton very concurred. He was full *5 2106, under ed it Sec. Title of the U.S. the vindicating discretion the of court to majority agree legal grаnt Code? Did the on the new trials even the damages principles applicable and constitutional to were and ideal: cited the case Wood v. manifestly damages? the issue of (By Gunston” ideal are meant those dam- agreement ages capable there the Was to the rules ascertainment, of exact pain to which suffering. common the facts like according Beardmore v. Car- might ringtоn evidence be re-examined? Did (1764), 1786, in 244). Wils In in Wood, permitted the court re-examine the facts as Ducker King’s Bench, v. in 1 Term Amendment, by Reports 277, or dis- 1092, examine the 99 Eng.Rep. 7th Lord Mans- judge cretion of the trial to see if it was field said that there was no doubt but that abused some of the cases indicate is the the court had to take the Did it jury rule re-examine the facts to ascer- of a any ? second in case where еx- damages excessive; the verdict was manifestly yet tain whether were in 1792 the cessive, jury or whether the court was actuated reverted to the strict view. bias, by passion, prejudice, Duberley or in render- case Gunning, 8, 1792, May Reports excessive verdict? Did 4 ing Eng.Rep. 1226, Term court, held, as has so often been grant deem the refused to a new trial on jurisdiction without to call on the ground itself damages, excessivenеss plaintiff for a remittitur or to order stating could not be done. Justice by any Perhaps error of committed Ashton may versal dissented. the case awarding merely manifestly explained ground ex- be jury in on the the nature action, damages? court, cessive because the same (both May 7, by decisions Lord Ken- questions and other crowd These yon), pointed out that the court was not remain unanswered. be that us аnd the Duberley case, unanimous in which it as to> of the issue the decision generis. said was sui pro- court then turned cor- damages in this case grant ceeded to new trial in an assault approach of incorrect the individual rect or battery in damages case were ex- question. ap- they to the Were judges Sparrow cessive. (1793) 5 Term unfettered, Jones problem like proaching Reports 257, Eng.Reр. King’s the Court of Bench in judges superintending prius, courts of nisi Chitty, in his work on (Vol. in Blackstone 306) restrained p. deem themselves footnotes Blackstone’s did statement provision? by constitutional The with “for excessive pas- doing indicating jury Chitty’s statutory provision prejudice.” reversals in sion or statement by supported error in fact remained on Beardmore v. Carrington cases and, pe- years; (1764), during Wils but from the statement books III, page lost the use of in Book federal courts riod, the Commentaries, appear that so in- attention since this was writ it does not Blackstone our dissent said, Gunston, ten, terpreted. nor in note 11 the case of Wood wherein the points All to of an exces did Mansfield. of this that the victim of Lord verdict, following passion of the statement sive the correctness not the result States, ex Galloway prejudicе, grossly United 319 U.S. and not monstrous cessive, page entitled beginning S.Ct. to relief at the hands page 1458: judge; L.Ed. the trial and that the grant such is an essential relief “The did not bind Amendment system. of trial under To our procedural courts to the exact incidents following: this let Under Sec us add the according to the com- details of U.S.Code, tion 2106 of New what Title 28 1791, more than it tied them mon law in Capital Supreme was said Court system pleading to the common-law Hof, 1, 13, Traction S. 174 U.S. specific prevail- then rules evidence Ct. with reference ing, ‘the of the common Nor were rules to the of trial courts to set aside prevelant, including relating those law’ then trials, applies verdicts and new regu- to the which the courts, “‘Trial viz: questions of jury’s role on lated the jury,’ primary usual sense sys- crystalized a fixed immutable Ameri term the common law and contrary, constant- were tem. On constitutions, can a trial ly during the late changing developing vested of men before an officer early eighteenth and nineteenth centuries. them sum authority cause already resulted in process In 1791this empaneled, moned and to administer oaths pro- rules on widely divergent common-law charge, to them and constable states, be- *6 among cedural matters to enter executiоn on issue none of England. them And tween verdict; aby their but it is ju- contemporaneous regarding rules men, presence and under su ju- going to of the evidence dicial control perintendence empowered to in support a sufficiency to ries or its struct them on the law and to advise them final, any precise, much less had reached facts, (except acquittal addition, passage time has form. In сharge) their criminal set aside ver then which obscured much of if, dict, in his the law form, definite had more less may have the evidence.” purposes. for historical even trials, affected So far as six doubt, difficulty, accounts “This Judiciary words Act of 1789 little objection amorphous character many legislative the vicissitudes survived insists, advanced, not that century half- and for over a and a changes, criticized, but the fеatures one of single revisors, codifiers, rule escaped sickle total or the alternative cumulative that the makers, makers, finally in the Amend- all, was embodied effect of touch of the to the deft succumbed conclusion, we logical more ment. The of Laws Re in their “Schedule codifiers think, history both one which and the king’s pealed” horses and all : and all support, is that here decisions previоus again king’s put back men cannot them designed preserve Amendment niche without an Act of Con in their little jury trial in basic institution re but the Amendment gress; Seventh elements, great fundamental its most champions intact, mains vary- details, forms and procedural mass system nothing to fear the federal widely among common-law then ing even principles the essential courts adhere to will jurisdictions.” law, in jury at common of'trial Guthrie, Pacific Co. v. required by Amendment. See Southern said decided Jan. McCORD, Judge, Circuit, banc, concurs. en which has come Ninth R.S. Stat. § in fact.” 28 U.S.C. § “Or for