Opinion

Mrs. Wanda Mercer v. Paris Theriot

  • 316 F.2d 635
Court
Court of Appeals for the Fifth Circuit
Filed
May 9, 1963
Status
Published
Author
Brown
On the bench
Rives, Brown, Gewin, Bell, Tuttle, Hutcheson, Cameron, Jones, Wisdom
Cited by
5 cases
Authority
More cited than 24.7%

Reversed on other grounds by Mercer v. Theriot, 377 U.S. 152 (1964)

The opinion

JOHN R. BROWN, Circuit Judge

(dissenting).

The question for review is whether, on the proceedings pursuant to our remand, the evidence of the total record was sufficient to raise a jury question. This is so because it was implicit in our remand that the District Judge was to consider not only whatever additional showing was made, but to consider it in the light of and as a part of the total record. If the evidence was sufficient to raise a jury question, then it was incumbent on the District Judge to grant a new trial. We did not mean to accord to the District Judge any discretion in determining that legal question. Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914 ; Kirby Lumber Corporation v. Laird, 5 Cir., 1956, 231 F.2d 812, 816 . For all of the reasons so ably set forth by Judge Rives, the evidence was more than ample to compel a jury trial as a matter of law. Because of the unique nature of our remand, we are not on this appeal now faced with the Roosth problem or the desirability (or necessity) of modifying it.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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