T. O. Johnson, Individually and D/B/A Johnson Equipment Company v. Carl Colglazier and Esther Colglazier

1962, appellant petition In Daly’s filed a show that answers were in fact coram a writ error nobis the Su- false. preme Court, Kings County. peti- This Finally, agree Judge we hearing by tion was after a denied Weinfeld and the other courts which Appellate Division, Leibowitz. The Sec- appellant’s have considered writs that it Department, in an unani- ond affirmed appellant’s who, was ap own counsel per opinion, curiam mous A.D.2d parently adequate reasons, prevented dis (1963), in turn N.Y.S.2d and was Daly’s closure fying against true motives testi Ap- affirmed New York Court Appellant him. should not peals, 14 250 N.Y.S.2d N.Y.2d challenge legitimate now be allowed to (1964). Appellant then 199 N.E.2d 162 decision made in his interest counsel corpus petition filed habeas choosing. of his own See United States subject appeal. present matter of the Garguilo, Cir., v. (1963). 324 F.2d 795 original proceed- In coram nobis ing Judge appellant’s Leibowitz denied Affirmed. grounds: (1) motion on two the evi- Daly’s tes- dence failed to establish that testimony knowing- timony perjured was ly used, (2) appellant’s own counsel Daly’s

prevented mo- 'disclosure of true testifying.

tives for Division, Appellate

The

Appeals, all reach- and the District Court ed result the basis of the the same ground. second JOHNSON, Individually T. O. and d/b/a agree conclusion and We with this Equipment Company, Johnson al., Appellants, et affirm the dismissal the writ. ap- question presented on this The sole Attorney peal whether District Carl COLGLAZIERand Esther knowingly testimony perjured used Colglazier, Appellees. petition- suppressed beneficial to evidence No. 21722. er. Daly by questions asked Appeals United States Court of appellant’s counsel at trial did not seek Fifth Circuit. anyone information had whether July any promises Daly.

made At Rehearing Aug. Denied hearing Judge Leibowitz, before Miles MacDonald, Attorney F. at the District trial, only

time testified that his Daly statement was effect Daly cooperate would be

whatever did to

called to court at the attention of the portion time of sentence. The

the record included above reveals that

appellant’s questions di counsel’s were Daly

rected motivated to whether any hope

with the sort of consider questions purely ation. sub These were

jective Daly any find and we fail perjury. for the claim of The rec basis strong Daly

ord had indicates that testifying. revenge motive for Further nothing

more, appellant has offered Judge:

HUTCHESON, Circuit appeal judgment of This is from a for the United District Court States Texas, Fisher Eastern District awarding presiding, on verdicts appellees for in a suit to the injuries. personal Colglazier Judge, Appellees, Brown, his dis- Carl John R. Circuit wife, Colglazier, auto- in an Esther where sented. mobile collision in received which Carl injury and frac- a back Esther received vertebra, tures of first lumbar- injuries. The crushed ankle and rib $24,486.25 awarded Carl and $46,220.47 to Esther. (1) appeal:

Two issues are raised on error for whether it was reversible plaintiffs’ at- district court to allow the torney to use the basis “unit of time” argument for for his damages pain, mental large anguish and to exhibit to the showing computation of those charts figured damages, “unit of time” during his and also basis summation respects transgress rules in other governing argument; permissible (2) excessive. whether verdicts are question Also involved is the of whether argument propriety di- in a versity jurisdiction case, as this is, matter will be determined as a of state or federal concern. complained ar- In addition gument basis, in on the “unit of time” (Rec. closing argument 185-6) any pp. what- without evidence Tex., Beaumont, Benckenstein, H. John support and be- ever appellants. ap- yond propriety, as an all bounds Alexander, Houston, Tex., Tom Rob- sympathy jury, peal Mr. Mellen, Mellen, Sr., ert L. Robert L. counsel, Alexander, plaintiffs’ said: Bedford, Ind., Jr., Grimes, Hous- Pearson such, such, are law is and facts “The ton, Tex., Butler, Cook, Binion, Rice & people such, people who are Houston, Tex., counsel, appel- severely permanently are hurt lees. get nearly always do not hurt Tex., Sneed, Austin, Jr., Jerome they in their are much as legal entitled Houghton Tex., Brownlee, Austin, Jr., damages. people that counsel, amicus curiae. people from the benefit law are * * * BROWN, HUTCHESON, who aren’t hurt much. Before go Judges. you FRIENDLY,* over a When extend Circuit by Designa- Brunner, Circuit, sitting A. Botta v. 26 N.J. Of the Second See tion. 60 A.L.R.2d 2d figures lifetime, large plaintiffs generally by then the look in this case but they large, rendering large larger and then is when and then ver- you dicts, wholly impermissible argument. it is hard for to set down and say $57,480.00 she is entitled to Appellants insisting are here that the yet her if question improper coun- segments, broke it into there judge sel and the failure of the trial single segment on here not a keep to the case within is a mat- bounds you that wouldn’t be able to write procedure ter of trial to be determined your minutes, verdict in five and themselves, the federal courts for agree on.” and also insist that both under Texas further, complete And in defiance of law law and the best considered state and versal his crusade as a Thus, legal damages” able amount for authorizes the appeal, ing saying: and appeal project both his and her troubles has nothing he can do. Cases are tried and disabilities over and gesting we have from into this court and meal. The “ * * * wrongfully order to jury the case on propriety, your duty ^[*] gotten plaintiffs, reopen finished, prohibition way. but found out now now, put *» outside of the effect, plaintiffs’ counsel, guide the has prevent five guide plaintiffs themselves into the a whole lot worse. Can cases As of stating Mr. Alexander jury our case?’ jury to do also and the law must be has not in violation of the uni- years only plaintiffs’ against golden aren’t enlisted to award a reason- a today you it, can’t the future. aid the possible from say legal a and only to “determine tried large he is two come There now, to do it. our I’m rule which counsel to went urged plaintiffs mistake, piece- years must back pain sug- giving ‘We place It tak- rule to n ter of the needs of independent system fairly in outcome because of choice of non-action eral law. This is so because there plied by test of Ohio Spach question ment must be reversed and the cause ther and not inconsistent Cas. Co. v. error. Cir. the reasons hereafter cinctly Cooperative, Ct. remanded for trial anew and for fur- the action of the trial the federal decisions2 the We carry correction on his weighed, 893, respects claimed, procedures 1960) agree trial recognized and It would seem that out their constitutional this court Byrd 2 L.Ed.2d 953 v. Reid, Cir., justly procedure lucidly that this is Spach, against and also Inc., the federal v. Blue respect as will best enable them propriety 5 get hear and 356 as “[a]n in Monarch Ins. judge 281 F.2d 401 judge’s part, possible may be, controlled out of bounds in without direction courts, under thereto is a mat U.S. so, 76 stated as suc- Ridge (1958), as complained was reversible courts, proceedings. and F.2d of counsel’s action and adjudicate. 525, differences permitting under important Maryland the to follow that, Electric duty to by fed 30, forum, as an 78 S. judg- must (5th ap Co. Brunner, 1, supra; 2. Botta v. note 421, 18; Afirett W.Va. 122 S.E.2d F. W. Wool Transport v. Wilson, (5th Milwaukee & Suburban 1934), worth v. F.2d Cir. 74 Corp. (1960), Sunray 11 106 N.W. 439; Allbritton, Wis.2d 5th Oil Co. v. 227; Cir., Sunray 2d 752; 86 A.L.R.2d Armstead v. 188 F.2d Oil Co. (1961) Allbritton, Cir., 475, 477; Holbert 146 122 W.Va. S.E. v. 5th 187 F.2d 43; Appliance Magee (8th Vaughn 1914) 2d Certified T. V. & v.Co. Cir. 218 F. Harrington (1959) 630, 631; 201 Va. S.E. West Texas Utilities Co. v. 126; Chicago Ry. (Tex.Com.App.1932) 2d & N.W. Co. v. Cand- Renner 53 S.W.2d (8th 1922), 881, 884, ler Cir. E. 1174; (1961) A.B.R. Crum v. Ward bring countervailing policy available in order to the truth consideration light Ridge just purposes of to obtain ver- [and sense” the the Blue Enabling prin- Act dict Trained in the thereon]. Rules and the Federal ciples problems practice proof, “an know- provide, on matters ing pertinent, uniformity within the whole how to value approach to reject system”. impertinent, oth- judicial he uses federal accomplish er rules to same trial Reid, supra, Maryland Co. v. Cas. In end. Nor does his as over- function obligations trials, the nature of seer, superintendent, adminis- argu- keep judge to trial federal trator end- trial end with its bounds, and the ment in them within ing. to do so consequences of failure fully by statute, carefully dis- law “At common examined were ap- charged court, quoting the federal District There cussed. granting duty provingly p. from Patton 32 with the of a new in note 2 at 658, Co., where, Ry. U.S. trial in a case in his & P. 179 v. Texas injuri- opinion, unjustly L.Ed. 3613 went it went S.Ct. ously say pages of 76 F.2d: of bounds.3 32 and out to at “ * * * “3 jury trial pro- common-law a Section title 28 U.S.C.A. ‘All vides : United States courts shall trial, its attack a with is at last grant power trials, have new cas- defense, and its its action and its by jury, es has where there been trial a in- suspense, scientific and not a for for which reasons new trials have leisurely quiry, and im- usually granted which a been in the courts of hearing any appeal, law. On of way may indefi- personal continue certiorari, error, writ of or for motion nitely quest is at an end. until the any trial, case, new or crim- civil things of are so these Because inal, give judgment the court shall after genius trials, of it is of an examination of the entire record be- court, regard they be con- fore the without to tech- our institutions errors, defects, execptions nical or which steady firm and under the ducted rights do not affect the substantial of judges guidance administra- as parties.’ (Compare Present Buie who, having tors, minds trained and 59, F.B.C.P.) task, adequate personalities to the court, cases, “This as to law is a responsible primarily for held are retry court of error. We do not just these outcome. Because their case. We review the record made in things so, in a federal court at are error, for reversible error least, is trials the conduct judge, conducting failing or largely District to the confided trial, by per- has, conduct the Judge, expected who is mitting get bounds, the case to out of highest of the exercise trial skill ” ** prejudiced just result. just order, and a wise and discre- function, pri- his His tion. chief precise argu- On the “unit of time” mary object, keep the case is to many here, ments made while are there legal admonitions within bounds way point, holding cases in some one rulings beginning from its strongest another, appellants’ some fed- end. He rules evi- its uses the probably Chicago eral North- case & argument] proper dence [and Ry. Candler, means, ends, western Co. v. 283 F. 881 elicit and not con- (8th indicating 1922). fine best evidence the case to the Cir. After that a trial. sponsible town “[Note] meeting, submitting questions He is determination, 2 ‘The not a mere moderator of judge just not outcome primarily simply ruling re who in our 275, & P. with full R. admissibility Co., responsibility.’ 45 L.Ed. 361.” jurisprudence 179 U.S. ^[658] tesimony, Patton v. stands charged but Texas S.Ct. computation of mathematical loss of fu- rules or procedural to “announce a blue- earnings proper, print the Court ture be followed in all future trials.” In that stated: case the court stated: possible process in esti- “Control “No such mating of the conduct of counsel keep allowed amount to be so as it within the limits legitimate suffering, advocacy or primarily duty matter responsibility In the inconvenience. inconvenience, suffering, judge. no pain, or trial We will find error made, discharge kept, duty no inventories are books unless we persuaded struck. are did, no balances that what he or do, failed to in matters within his plaintiff case in the “Neither the miscarriage discretion resulted in a any world has in the nor one else justice deprived or one of the of value standard ever established parties litigant Many of a fair trial. only proof ever ills. The for these of the cases which have with dealt guide jury in deter- received to impropriety argu- the claimed of an mining of the allowance amount ment such as was made in this broadly stated, case is, they make should have held that whether to injury, allow extent of the the nature and dealing forbid pain They in- results. its effect and in the manner reasonable sum to allow a structed employed by plaintiff’s determining counsel here compensation, and in was a matter within the discretion of evi- under the is reasonable what ” * * * judge. the trial guided by observa- their dence to be tion, experience fairness “There, sense of indeed, may and be situations right. argument the allowance At the best and where such as was made by could, sum determined should, is an estimated here and vitiate a intelligence plaintiff’s and the conscience case, verdict. In this the jury, a that and we are convinced liability evidence of defendant’s was * * * likely strong. jury to much more jury’s would be The verdict considering verdict, just the $150,000. return a was We will not reverse single period, judgment estimated life as the style entered because the of attempt reach than if it should argu- and of content counsel’s by dividing into life a verdict the ment.” yearly setting yearly periods, down The best stated reasons for re reducing estimates, the and then jecting argument the of “unit time” present to their value. estimates arguments plaintiffs’ the as a whole are artificiality of The arbitrariness Brunner,4 1, supra. found in Botta v. note apparent that method is so such a arguments sup The used here were not jury apply require it would a ported by any pain evidence because absurdity.” think, an we be anguish and mental cannot be rely Against appellees case, forensically measured in unit dollars on a Pennsylvania strongly R. Co. v. basis; damages R. of time the amount of 1961) McKinley, (6th Cir. physical 288 F.2d pain or inconvenience must argu- of necessarily left, unit time which discussed the be without mathematical many ment, cases formula, the state reviewed sound discretion the point, and re- jury, in federal cases few and there is no mathematical rule competing by equivalent injuries fused to choose between which of or similar use, See Annotation: “Per diem See also: “Counsel’s in trial of fixing personal injury wrongful case, mathematical basis or death suffering.” blackboard, chart, diagram placard, A.L.R.2d 1347 (1958). evidence, relating in introduced damages.” (1962). 86 A.L.R.2d legally precise money Chi- determined. and accurate determina- can matter in be really is, Candler, (8th not, cago matter as it a R. R. tion and & N. W. Co. arguments determination, 1922) jury’s F. 881. Such to be left to the Cir. arguments by certainty in the uninfluenced and charts an create illusion only here, jury’s not and cannot the kind involved which could mind which does argument regarded tending to mislead in Here whole be fact exist. believing designed jury an case, and framed into there in this used “legal” appeal guide was, presents to assist an accurate or chart as it in effect large reaching yourself put ver- in in “Golden Rule” or direct them to. plaintiff’s shoes, argument specifically on consid- dict for an legal place rejected proper everywhere. no erations which have in the determination. argument “unit of in favor of the argument, proper time” it further Reversed and remanded in before a counsel proceedings. and not inconsistent suggest upon his view based answers explain the method the evidence and to BROWN, Judge (dis- R. Circuit JOHN conclusion, which he reached his senting) : suggesting some that it would seem that does, correctly Holding, con- it although formula, be concrete it must duct of the trial control purely suggestion, admitted Court is for a Federal give to ar- order to some basis one in which and not Federal Court preferable rive at its to leav- Erie-bound, Erie-loosed or ing damage entirely fix at sea to depending trim his sails must nothing figure by guesswork, en masse being heard, case nature then attempt than more mislead sweeping time for all terms alley. taking it down a back argu- the so-called unit-of-time condemns The evidence as to the elements portrayal. placard or without ment with damages is discussed detail practice neither as earth- I think the respective briefs on their contentions deserving shaking of out, or as made was, the that verdict and that it was Worse, it this condemnation. universal not, however, point, excessive. This very of life of is an the abandonment urged by appellants seems to have been Cir., Reid, Maryland Co. v. Cas. primarily give emphasis to their con- by one seasoned F.2d 30. Authored tention on argument error time” the of the “unit of maturing by ex- pit the in the followed argument and on the as a Judge firmly years perience a of as trial whole. occurring and of in control capped all that was century’s by that, a opinion third of We of now a are the while vantage generous amount, considering experience in more remote evi in the the reviewing perform- whole, judicial point a the dence as of the of the amount others, epitomizes ad- per the verdict is so Reid not excessive se as to ance of the require are, however, of versary tradition reversal. of the trial in the best We argu opinion Anglo-American system. plaintiffs’ A trial clear the transgressed permissible is a search ment as a bounds, for But it whole search truth. by content non- for as revealed the that the court’s silence and truth rebuking pri- produced preventing action in made not the record there argument by error, marily the the who are the advocates reversible judg spokesmen professional, partisan for the that because of that conduct the dig- Though excessive, partisans. conducted with ment must be reversed because argument nity decorum, part by as a sense induced in with an de signed, majestic importance an calculated, in of law and to mis and effective intrusions, believing jury atmosphere lead the free of external into that the de legal drama proper it is colossal error to think termination of a award damages The of a trial. left out is a emotion are although contest, many on the outside undue restriction on the tools of effec- signifi- slight advocacy. a trivial or affair small tive cance, importance is of the crucial outlawing practice The litigants. parties The there under meet cases, diversity federal, all embraces surroundings these controlled tle, to do bat- what it calls the “best stated reasons” coming victor, off oth- with one set forth in and summarized Botta5 vanquished, failing that, at er it is arguments way: (1) this are engagement. prelude least a for a return supported pain and because evidence system The whole works as an exercise measured forensical- cannot be persuasion persuasion action, mani- — ly; (2) the amount against, guilty fested in the for or necessarily left, must without mathe- be guilty. or not Here is the advocate’s formula, matical to the sound discretion highest perhaps classic and role whether as there is no mathematical object importunities of his is the equivalent in- rule which the of such Judge or, jury. frequently, more juries money legally can deter- always climax of the trial almost arguments mined; (3) an create argument fervent of counsel as the awful certainty; (4) illusion a sort wolf- approaches. moment of truth There disguised clothing, in-sheep’s is a bounds, say course, may he what forbids “Golden Rule” particularly and more manner being put told to themselves says it, derogation which he but it is a place although parties, most of this suppose famous function to they anyway. know do so merely he parrot must stand there and I think none of is well these criticisms gesture

with neither nor inflection what demonstrated, think, founded. This is I Although each of the witnesses has said. by comparing technique upon there are some formal limitations argument having fol- same aim and the extent to which counsel lowing essentially process same may express personal opinions, his his which, post placards, without use presence there, every every word, whole cards, script specifica- or the blackboard gesture, every persuade inflection figure monetary tion of a for a unit find the critical issues in time, permissible. It quite would be obviously client’s favor. What he is go like would somewhat this. doing telling he, what advocate, them plaintiff: desires to do. “If Counsel plaintiff have found a verdict for the general In charge, a case on a instructions, you must the Court’s acting plaintiff inescapably for a talks damages. then the amount of fix general plaintiff, about the verdict for the From the Court’s conference naturally and question that leads the counsel, will we know the Court ought may of how much. Counsel and arriving charge you that in at dam- to discuss dollars. We he now hold that guided by ages, you in- will be this only can discuss whole dollars and make money, if : sum of struction *What through processes no mention of which you any, paid in cash find if now do might go trying the in to fix that * * * * * * fairly would and figure. ultimate reasonably plaintiff compensate the * * * rigid Any injuries such rule for all cases and for such and dam- derogation ages capacity directly proxi- for all time is a of the and as been * ** Judge keep past of the mately Federal District the caused in bounds, capacity probability the case in and inwill reasonable be * * * * * jurors good to use a deal common caused in the future * * * weighing importunities by injuries sense in and the reason such paid orators, you blandishments of and shall take into account and Brunner, 82, 138 5. Botta v. 26 N.J. A.2d A.L.R.2d 1331. compensate’ plaintiff ably following the elements such of the ** * in you pain the damage are and and find this as past no evi- by in future. With preponderance of and the established First, no evidence evidence, dence heard on it and other: none the and going you it, plain- how incapacity admissible are physical as the such job your to do ? from the time tiff has sustained trial date this the accident the “Well, of common a matter isn’t it ** * ; Second, physical in- such you know two that have to sense you prepon- capacity find from a as severity First, things? the what is plaintiff derance evidence pain? And sec- and nature of this * * * ; in the future will sustain long ond, How what is duration ? its pain Third, physical mental such long it How will it continued? has * * * anguish you find the duration, last? When it comes to you plaintiff from the time has sustained your fix will have to this in own of this to the date of the accident terms in which mind in the same * * Fourth, ; trial ordinary people time. measure other anguish pain physical and mental course, pre- not, of fix it You need probabil- plaintiff will in reasonable day, pain cisely this to the but is * 6 ity in the future.* sustain so, going permanent? to be If how long plaintiff likely live? will re- “You will see that expect- you your quires You heard evidence life put answer you money’ ancy fix could that number terms of the ‘sum of thinking. fairly your years But paid own ‘if now in would cash by permanent pain reasonably does occur compensate plain- not always damage. years. occurs Pain tiff’ these elements of present, past future. or the then items First [Counsel discusses likely brings pain you If find will us to the This Second.] finding permanent, you physical are and Fourth Third items— day probably periods occur each pain will two certainly life, plaintiff’s of time—from the accident to during waking hours of conscious- date from trial of this trial and long Well, just is this ness. how for the future. say eight, easy or It time? point you “At this will observe years. ten, But what eleven something very curious. The period? happening Months in this charge you you in his will tell years. going by up make are things pre- must find from ‘a these going by up are to make Weeks ponderance of the evidence.’ Now Days going to make months. you any did not evidence from hear waking weeks, up hours— any money sum of witness up going make hours—are compensate plain- which would days. suffering, tiff for or what permit “Now the does not law me is worth or how it is evaluated money. Indeed, or dollars to tell terms cents all will counsel minute, my you anyone of how much each idea tell that had offered hour, day, week, month, proof, or or or or would imme- have you year But diately rejected Still, you or this is worth. it. specific finding charge duty have the task of some under to trans- fixing lump your sum total amount in late of dollars. decision terms you you think could do amount. Do Your is of dol- task to find sum ‘fairly reasonably’ fairly without it lars reason- that ‘would ** charge gave (R. portion the Court this case 206- 6. from to is actual 207). 428 considering jurors put the time involved? plaintiff’s Will themselves

you position reaching into lump not have to take account the when a final sum days by process by hours and weeks a unit-of-time than years outright Keep large months ahead ? this demand for a like sum. lump course, practice in mind write in the Of under either if the figure.” made, appeal sum dollar forbidden is the error will rebuked, be but not because of unit-of- sweeping opposing In condemna- criticisms, time. In addition these it tion this Court the unit-of-time urged is also sometimes that unit-of-time argument, prob- minimize its I would not province jury invades the of the and con- ought But able rules effectiveness. testimony by stitutes nonsworn the law- something rest on more than verbalisms. yer. practice purpose Under each greater effectiveness, Except likely for its of counsel’s is to move the each of the criticisms summarized above jury figure. lump to a final sum It is contrary may from Botta leveled at the be province figure. fix nearly practice. jurisdictions Thus in all province But it is the of counsel to state permissible it is counsel to state the ought figure be, either what the or lump sum should he thinks legitimately other factors which would “(1) allow. is Of course that specified gen- enable the fix supported by is evidence.” There figure. eral And to state a unit-of-time more, less, lump proof no no for a sum giving testimony breakdown no more although Likewise, than for the unit. permissible naming than is the there is no “formulae” when the lump sum. may lump allow, be told what sum to process employed really None of these nominal reasons is * * * “(2) equivalent against practice. of such reason The real injuries money legally [pain] reason, can be opinions as one from discerns Similarly, suggest bidding unit-of-time,7 determined.” the Courts for * * * “(3) lump effective, fixed sum is not the fear that it is too certainty.” certainty. large. illusion point- It is verdicts will too But as And so far ed as the “Golden Rule” is con- out the Courts who do allow unit- 8 suggestion cerned, there is no more of-time and as reflected in much of the Caley Manicke, 1962, Illinois: 7. Texas: Cf. West Texas Utilities Co. v. 24 Ill. v. 206; 390, Elgin, Renner, Tex.Com.App., 1932, 2d 182 Jensen N.E.2d v. 53 S.W.2d Ry. Co., 1962, contrary Joliet & Eastern 24 Ill.2d Some assert 383, 904; 211, Appeals approach, 94 182 N.E.2d A.L.R.2d Texas Court of Civil Caylor Atchison, Topeka 8, infra; Kansas: & v. decisions note Virginia: Ry. 1962, 261, Co., Appliance Santa Fe 190 Kan. Certified T.V. & Co. 53; Harrington, 1959, 109, 374 P.2d v. 201 Va. 109 S. Minneapolis, 126; Minnesota: v. St. Ahlstrom E.2d Virginia: Co., 1955, 1, 1961, Ward, Paul & S.S.M.R. West 244 Minn. v. Crum 146 873; 421, 18; 68 N.W.2d 122 W.Va. S.E.2d Armstead v. Faught Washam, Mo., 1959, Holbert, 1961, 582, Missouri: v. 146 122 S.E.2d W.Va. 588; 329 S.W.2d 43: Express King Railway North Dalcota: v. Wisconsin: Affett v. Milwaukee & Sub Agency, 1961, Inc., N.D., 509; 1960, 11 Transp. Corp., 604, 107 N.W.2d urban Wis.2d Hampshire: New 274, Palmer Chamberlain v. 106 N.W.2d 86 A.L.R.2d 227. Lumber, Inc., 221, 1962, 104 N.H. A. 906; Duguay Gelinas, 1962, 1958, McLaney Turner, Alabama: 2d 104 N. v. v. 451; 182, 588, 315; H. Plume 182 A.2d v. Couil Ala. 104 So.2d lard, 1962, 267, 452; Vanlandingham Gartman, Arkansas: 104 N.H. 184 A.2d v. Jersey: 1958, Brunner, 1963, 111; New Botta 236 Ark. 367 S.W.2d 1331; Angeles N.J. 138 A.2d 60 A.L.R.2d Los Trans Seffert v. California: Lamb, Inc., 1960, Lines, 1961, Cross v. Robert E. 56 Cal.2d 15 Cal. 359; N.J.Super. 53, Rptr. 337; A.2d 364 P.2d Harper Bolton, 1962, South Carolina: Newbury Vogel, 1963, Colorado: v. v. 151 541, 54; 811; 520, 239 S.C. 124 S.E.2d Colo. 379 P.2d

429 regard monetarily literature,9 excessive anti cases immeas- evil feared is if the duty ought right urable, verdicts, direct- it is to be counsel’s then the cure —indeed per- employ appeals against practice.10 product, —to all honorable not the ed action, suasive technique is effective a forensic That grounds hardly prohibiting safeguards it. many more There arises, course, from the may first, is, real hazard contrived. There damages Judge. duty power fact the standard He the trial vague, unavoidably may, he has unlimited arsenal. Thus long own, law tolerates plaintiff’s But as the so did his counsel here measuring other Botta and all what counsel inform Court and insist Evening 1950, Star 786; Columbia: District Ar Louisiana & 231 S.W.2d D.C.Mun.Ct.App., Gray, Newspaper Mullins, Tex.Civ.App. Co. v. R. v. kansas Co. 377; 1962, 263; n.r.e., 1959, 179 A.2d writ ref’d 326 S.W.2d Pennsylvania R. Flowers, Tex.Civ.App., Bowers v. Delaware: & v. Texas N.O.R. 1960, 756, 1960, F.Supp. D.C.Del., Co., 907; 182 Bau Hernandez S.W.2d v. 336 953; Cir., aff’d, Tex.Civ.App., n.r.e., 1961, cum, F.2d 3 281 ref’d writ Watson, Fla.App., 498; Express v. Florida: 1962, Perdue v. 344 S.W.2d Chemical Alvarez, 840; Payne n.r.e., 1961, Cole, Tex.Civ.App., 144 v. So.2d ref’d writ 659; 1963, 156 Fla.App., 773; So.2d 342 S.W.2d Lines, City Coach Indiana: Evansville Risk Mut. Ins. Utah: Olsen v. Preferred 304, 1962, Ind.App. Atherton, 575; 1960, 23, Co., 133 Inc. v. 11 354 P.2d Utah 2d 293; Washington: 1960, Hogan, Gas Southern Indiana N.E.2d 179 Jones v. 56 Ind.App., 1962, Bone, 23, 180 & Elec. Co. v. 153. 351 P.2d Wash.2d 375; N.E.2d (1962); Comment, 22 La.L.Rev. 461 Greenberg, 1962, Corkery 253, Iowa: v. (1962); Comment, Mich.L.Rev. 612 60 327; 846, Iowa 114 N.W.2d Comment, (1961); 14 189 U.Fla.L.Rev. Mattingly, Kentucky: N. R. Co. v. Louisville & Comment, 11 L.Rev. 495 Clev-Mar 155; 1960, Ky.A pp., S.W.2d 339 ) ; Comment, ( N.D.L.Rev. 495 39 La.App., Hughes, Louisiana: Little v. Comment, (1963); L.Rev. 85 15 U.Miami 1961, 448; 136 So.2d Comment, ; (1960) Wash.U.L.Q. 1960 1961, Harper Higgs, Maryland: 225 v. 699; 302; Comment, Com 1959 Ins.L.J. 24, 661; Shore A.2d Eastern Md. 169 ment, (1963); Ark.L. 9 N.Y.L.F. 17 533 Corbett, 1962, 227 Service Co. v. Pub. ; (1963); 269 36 Rev. 94 1962 U.Ill.L.F. 701, 411, re Md. A.2d affirmed 177 (1962) Temp.L.Q. ; 11 Kan.L.Rev. 170 98 Reichel, hearing, 681; 180 A.2d Lebow v. ; ) ; (1961) ( 41 38 B.U.L.Rev. 432 421, 642; 1963, 231 190 A.2d Md. ;) ( L.Rev. 62 23 Ohio S. Chi.-Kent Boutang City Motor Minnesota: Twin v. (1962); Kan.L.Rev. L.J. 573 10 93 1956, 240, Co., Minn. N.W.2d 248 80 Bus 30; Flaherty ; Marq.L.Rev. (1961); (1961) 62 289 45 Minneapolis Louis v. & St. (1960); 402 38 N.C.L.Rev. W.Va.L.Rev. 345, Co., 1958, N.W.2d R. 251 Minn. 87 Rutgers (1960); 522 L.Rev. 289 12 633; (1959); (1958); So. Dicta 33 36 373 Michigan: Wenk, 1961, (1959); v. 363 19 S.L.J. Yates 214 Ohio Calif.L.Rev. (1959); 311, 828; (1958); N.W.2d Minn.L.Rev. 832 Mich. 109 780 43 Four-County (1958); Mississippi: Power Duke L. Elec. 11 Ala.L.Rev. 207 1962 Ky.L.J. 403, 264; Clardy, 1954, 334; 221 73 v. Miss. J. 1964 Ins.L.J. 49 Ass’n (1962); 144, 1191; (1961); Drill Index 64 W.Va.L.Rev. 454 44 A.L.R.2d So.2d 592 775, ( ) ; Williams, 1962, ing, S.C.L.Q. 242 4 312 14 Inc. v. Miss. Ariz.L.Rev. (1963). 525; (1962); 16 Okl.L.Rev. 468 442 137 So.2d Mo., Fendelman, Missouri: Goldstein v. rejects expressly Here 661; 1960, 336 S.W.2d excessive. And claim properly were Brown, 1959, 75 Nevada: Johnson v. so, permanent in view serious 754; 345 P.2d Nev. injuries Colglazier, to Mr. then injuries wife, McKinley, then more 6 serious Ohio: Penn. R.R. Co. v. Booth, 262; expectancy Cir., 1961, life 15 Hall 65 with a about F.2d v. 288 compressed Boop 619; years. App., 1961, frac- Hers included N.E.2d 17 Ohio Co., lumbar, injury first to rib ture of the cage, v. R. Baltimore & Ohio 714; App. of ankle with considerable fracture N.E.2d Ohio aggravating pre-existing fragmentation Horn, 1963, Oregon: Hoyle v. Van complicated by pre- 985; further arthritis and P.2d Or. existing osteoporosis Wright Line Truck & Son Texas: J. D. —demineralization n.r.e., Chandler, Tex.Civ.App. bones. writ ref’d opposing counsel in advance of JAMES, Appellant, Paul Edward planned. when unit-of-time As is is generally charts, used their form America, UNITED STATES and content should be scrutinized to avoid Appellee. impressions. false factual The Court No. 8096. charge its can that the also make clear Appeals States Court of United subsidiary unit-of-time elements are Tenth Circuit. counsel's And ideas not evidence. July 1965. complete policing, to assure effective charge, Court can either construct the

general special interrogatories, or so separately each fixed.11 element is Judge readily can tell whether measurably

verdict on this infected extravagant runaway jury.

element

Next, good there is the sense

juries.12 proof This record is dramatic this sufficient ancient institution has

strength stability, reetitude intrinsic judgment blandish to withstand the

ments of counsel.13 finally certainly

And not least— —but

despite propa- professional the clamor in

ganda emanating camp from the armed pursued tortious that unless this Lewis, Judge, Circuit dissented. day judg- tool outlawed the awful hand, ment is at safe- the most effective

guard defending is the counsel himself. system— adversary

The marvel of our tat, Big tit Roland for a Little

Oliver—is that to resourceful advo- always there is

cate an answer.14 ruling unrealistically rigid.

This It lawyer.

demotes trial and trial

I therefore dissent. 49(a) ideally 11. F.R.Civ.P. suited ing past capacity, future, physical separate this. Here a blank pain, anguish, future, would past mental Third, First, Second, been left items expenses $180,- medical and future totaled Fourth, 6, supra. see note $46,- 536.67. The 220.46. experience 12. The broad Circuit Statute, with the Louisiana Action Groce, Direct E. Such stalwarts Josh James 22:655, could, proved juries Clark, Allen, L.R.S. Brock, long open- Bibb Paul would, ly and often return for in- proudly verdicts identified with the defense companies de- organized surance yet sued as vicarious and its resistance have not fendants. sponge. See, in the thrown “The TV * * * * * * Answer To Blackboard plaintiff Colgla- Damages,” Up For Mrs. Esther Build Of Alabama Defense zier, placard figures Journal, Lawyers April 1965, p. of earn- loss

Case Details

Case Name: T. O. Johnson, Individually and D/B/A Johnson Equipment Company v. Carl Colglazier and Esther Colglazier

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 10, 1965

Citation: 348 F.2d 420

Docket Number: 21722_1

Court Abbreviation: 5th Cir.