# Mrs. Wanda Mercer v. Paris Theriot

> Court of Appeals for the Fifth Circuit · May 9, 1963 · 316 F.2d 635

URL: https://www.frixlaw.com/law-library/cases/9449177

## Case

- **Full name:** Mrs. Wanda MERCER, Appellant, v. Paris THERIOT, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 9, 1963
- **Citations:** 316 F.2d 635
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Rives, Brown, Gewin, Bell, Tuttle, Hutcheson, Cameron, Jones, Wisdom
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Mercer v. Theriot, 377 U.S. 152 (1964).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9449177

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449177. Public record. Not legal advice.