Petition for Writ of Certiorari — Cosentino v. Royal Netherlands Steamship Co.

Supreme Court brief1968

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Text

b ‘ Vets Wows

FILED

LIBRARY |

SUPREME COURT.(I). & 7 ‘JUN 10. 1988

a: Supreme Cmut of the Huited Sten

October Term 1968

—_ 30

(. : FRED COSENTINO,

’ Petitioner,

ie osalust : .

‘THE ROYAL NETHERLANDS STEAMSHIP Ra

COMPANY,

Respondent.

PETITION FOR WRIT OF. CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ©

SECOND CIRCUIT

e- JACOB RassNzr,

' Attorney for Petitioner. .

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INDEX

im, 88 | .. - PAGE

ee eae vc aeeauins whew | 1

- Juri8diction of this Court .....cccisccciveccscvees 1

“Questions. Presented a és af St eee ie 6 NEE : en 2

me Reasons for Granting the Writ AEE EN Ainge 2

‘de es er raed 2 rd

Argument (hekibhahwis dwehatadoesaseenee we ee eens 5

- Pomt I—There was no legal or aitiant basis for the.

learned Court below substituting -his- evaluation Ae *

of the injuries for that. of the jury cekeebewat en 8

‘- Pomr II—The Court erroneously disregarded the

applicable controlling law, as enunciated by this

honorable Court in the case-of Berner v. British

Commonwealth. Pacific Airlines, Ltd.,. 346 Paes

532 (1965) : edhe one sua Veuecaneey gteeseeees 9

Port I1I—Ordering the question ¢ of liability retried ieee, a

reversible OPPOF 2 ins we tesewe Rese psy tee ss ooo of

— Partieular requisites, tests, and factors er \ wy. 23 if

Coritlusion .;.:...... Renee Seserpir op aree eras "30

par ee | | Becca im :

; Opinion of United States Court ‘of Appeals a cee |

Judgment of Affirmance ......... (anew me ; 35.

- Order Denying. Petition for Sastieie eo pune 36

~. Order, En Bane, nee Petition for Rehearing 37

iinet jac

a ee — ——— nae 1

Cases Cited . eee fee

PAGE

: Alison’ v: . United States, 251 F. 2a 74 (ea Cir. 1958) a

Atchison, T. &SF. R. Co. v. Gufierres (1926), 30 Ariz.

491, PE Bick eee c dba peek ca Min neko nveres eo 6,18

-Adlantic Coast. Line R. Co. v. Bennett (1958 Oa. oe

BG) B01 FS 908. vce. e sees cet et ene ceric GM.

Belles +d Pan Ry. » 3190S. 350, 353, 354,

fe ee ee eee 12

Berner v. British Commonwealth Pacific Aitlines, ¢o ios

Ltd, 346 F.2 532 (1965) pee LOEWE Kheeneberns es ; 9

Boldurian v. A/B. Svenska Amerika Linien, 246 si at

Supp. 413 (1965) cues Ohad ee dOe ONS RaKaed ess - §

Brewer v. Second Baptist ( Church (1948), 32 Cal. 2d. *

Bryan v. ‘United States, 338 U.S. 552, 70 S. Ct. 317,

94 L.Ed. (335 22.6... NECbRNRSE ERMA ANOS EAN ee* 31

| Burton v. Wilmington & W. R. Cus, 84 N.€. 192 . 7

Camarow v. Levy (1952 Sup.. App. T. ); 115 N.Y.S.

DE ccksvndenaasee Mx ckessnctincdcsauuereuen «6

- | Cannon v. Krabowitch (1959), dA NJ. nee 93, 148

pS” SER Ieee een Oe 5.00 OR 7

Caskey v. Village of Wayland; die F.2d 1004 (1967) 27,28

Chesevski v. Strawbridge & Clothier, 25 F. Supp. 325 +5

- Cote v. Allen (1957), 50 Wash. 2584, 313P2693.... 7

Cromling v. Pittsburgh & Lake ‘Erie RR. Co., 537 es

Se BE CD eo saserccdserteascesevsucccers - 28

Cromwell v. County of Sae, 94 U. S. 351, 24 L. la. 195

a seen eee eeeteeeeeeeeeeereeeeeees ake Uoiee 11

: a

‘PAGE .

Dagnetic v. ‘Long Island Railroad Company, 289 F.2d

2 TIT (VIEL) voce ese te eee eee eee ees rar o> 10, 12, 27

_ Darbrow, y. MeDade (1958 CA3 Pa.); 255 F.2d: |

610 rete eees Wis bes Kah dee Gros h cee bi ets 10+ 14, 18, 27

Delaney v. New York Cent. R. *: 68 F. Supp. 70. - 10

“Dodson v. Raker, 5 PRD. 368 teseaay Fea cuen sos 5

Downie v. ‘United States Lines Co, 359 F. 2d 344

Ce) eee Plishewaleswenate oe

Warrar v. Wheeler (1906 CAL NH) 145 B.. 462 ....... 18

'First-Mechanies Nat. Bank v. Katz (1955) 36 NJ.

- Super. 552, 116 A.2d 644 ...5...0...00, eae 7

Gasoline Products Co., Ine. v. Champlin Refining Co. i

_ 283 U.S. 494, 51 S. Ct. BOR re Pee 3,14, 20

Gentekés v. San ‘Francisco (1958) 163 Cal. App. 2d

691, 329 P.2d 943 . 1... eee ee eee eee eee eee eee 6

Glazer v. Glazer, 374 F.2d 390 (ser Rises aa ce ee

Guilford Glazer v. Jerome S. Glazer and Louis A. |

"Glazer, we F. Supp. 476 (1968), pinveedsabewene's ' 6

Hiltz v. “Atlantic Ref. Co. (1945 Ca. 3 Pa. ) 151 Fed. 2

Hirsh v. Manley (1956) 81 Arts: 94, 300 P2d 588 ...

Huddleston v. Crain Brothers, Inc., 183 F. Supp. 874

‘International Breweries, Inc. v. Anheuser-Busch,

Inc., eegmete August 3, 1966, 364 F. 2d 261 .... a 11

LC. J ames Motor Co. v. Wetmore (1980), 36 Ariz.

382, 286 P 180.0... eeeeseeeeseeeseeseeeens 7

C064) cust oee eee fi i Stn eee 6

J efferson School of Social Science v. Subversive Act.

Con. Bd., 331 F.2d 76 (1963) ......... Eee if

Johnson v. Lewis (1960) 21 NC. 797; 112 S.E. 2d 7

Soo Bick he shae hho e eee haseeeanes isntantanwel Banc.

| Juliano + v. Abeles (1985) 114 NIL 510, 177 A 4. P 22

Korbut v. Keystone. Shipping Co., 3380 F. 2d 352

Wee ARR Pe Pe Per ree er eer er Te Tee a |

ee Kovacovich v..Phelps Dodge Corp. A948) 62 Ariz.

~. 193" eee eee st ete Picea C8 edi wne ae or

‘cities. v. Kurn, 327 U.S, 645, 66S. Ct. 740 ...... 9,

| Lawlor v. National Screen Bérviee, 349) U. S. 322, 326,

75 S. Ct. 865, BOT on. eee eee eee eee eee eee eeees ~ 10

Lind v. Schenley Industries, Inc., 278. F. 2d 79,. atk.

denied 364 U.S. 835, 81 S. Ct. 58 ...........e0c0. Soe

Lopoczyk v. Chester A. Poling, Inc, 152 F.2d ‘st ae oe

Mangigan v. Toolin (1950) 77 RI. 51,73 A2d 41... 7

| Mason v. Mathiasen Tanker Industries, Inorpo-

“gebed 908 FSi 26 (1982)... .5......66.00... 5

May Department Stores Co. v. Bell, 61 F.2d 830°. ; 3, 27

Mayo v. Ephrom (1958) 84 Ariz. 169, 325 P2d 814... "25

. McAllister v. United States, 348 U. S. 19, 75'S. Ct. 6.

; 11, 28, 29

McKeon v: Central iilieatais Co. (1920) 264 F. 385 . 14, 19

MeNellis v. First Federal Sav. & L. Ass’n of Ro- .

chester, N.Y., decided July 27, 1966, 364 F.2d me... : + BB

_ McSparran v. Hanigan, 225 F. Supp: 628 (1963) . 5°

: Meehan v. Central R. Oo., 181 F. Supp. 594 . rah wh 7,18 .

;

(1965) ee ssduues peenes Oso eeeesen soseleunneus a ee

Mendenhall v. MacGregor Triangle Co. (1961) 358

“P2 55s ce dn cite ea one es 7

‘Millworth Converting Corp: v. Slifka (1960) 0

, App. Div. 2nd 568, 195 N.Y.S. 2d 536... cs onenes er

ti i Moeller v. Market Street R. Co. (1938) 27 Cal. App. -

2d 562, 81 ee 6s xv iwhauns ecovectnskowessces 6

Morales v. City of Galveston 370 U.S. 165, 82 S. Ot. i

Be ee EO Eee iNgeehnevees ao

. —" v. hej J (1952). 125 Colo. 392, 244 P2d 6oT os

Neely: v. M tin K. Eby Ceidtvention Co., 386 U. Ss. Apa,

317, 87 S.Ct. 1072 (1967) ........ esses eee ee eee 30. ,

"Nixon _y. awhon (1954) 32 N-J. Super. 351,, 108 ae

> SI Peer obno subd ewubarese vs eh 6

, ~The Noah’ Ark v. Bentley & Felton Corporation, 2 , i

- 292 F.2d 437 (1961) oxen Pere Tet. Corer ey oo ‘5 \

Norfolk Soyihern R. Co. v. Ferebee- (1915) 238 U.S. a

269, 59 L. ed. 1303, 35 S. Ct. 81 .....-- Lekeaes 6, 14 27 \

= of Justices (1911) 207 Mass. 606, 94 N. E. 846 21 |

Palmer v. Kelly (1938) 52 Ariz. 98, 79P2344...... 6

' Panto v. Safeway Trails, Ine., 260 F. Supp. 670 oo

(1965) see veeeeeeceeeeegeg ste teee nee eees u

R. D. Wood Company Vv. Phoenix Stee! Corporation, ee |

887 F.2d 921 «.,....- Semele decks eeu 13

' Robinson v.. Payne (1923) 99 N.J. ” 135, 122 é: 882 22

Rosa v. City of Chester, Pa., 278 F.2d 876... bereees Fe a

: ._* Rossman v. Newton (1934) 112 N.J.L. 261, 170 A-230 7. |

—_ <a 3 ; — —_— os . —— ae on le

Silverii v. - Kramer, decided Pebroary 18, 1963, 314

FP Ge. bao § denn ccesshcsgcesecceaesceoneste « BB

Simmons y. Fish, 210 Mass. 563, 97 N.E. 102 eeseus 3, 23

Smith v. Webber (1955 Ky. ) 282 SW 2d 346 oebees - 21

Spartis v. Pocas (1987 Supp. App. T.) 68 NYS. 2d

ME oleccccrcvtdecs0sbcbecencdecvseseevesveses 7

‘Strother v. Aberdeen & A. R. Co. (1898) 123 N.C. ..

BD cccgcivccccscccccponsccosepeccsccscvepeces 7

| Tennant V. Peoria & Pekin Union Ry., 321 U.S. 29,

648. Ct. 409...... eb onde eeeedeenesscetudéesace 9, 11.

Thompson v. Camp, 167 F.2d 733 oc eccvccveccegocs 5

Tiller v. Atlantic Coastline R. Co., 318 U.S: (54) 68, < -

eT es ee Pee soe eecereeceemecereees 12

Tompkins v. Pilots Asso. for Bay & River Silden

Se Oy EF CAs deccvesccponccsesvecs eee T, 18, 27

Towle v. Boeing Airplane Company, 364 F.2d 590 . 10

Travelers Indemnity Co. v. State Farm Mutual Auto

Ins. Co., 3380 F.2d 250-1964) .......seeeteeeees 11

Tsai v. Rosenthal, 297 F.2d 614 .. paeaee ean - Pee 7

Twehty-One Min. Co. v. Original Sixteen to One Mine

CE OP We GP ciciveptocsccecncsrvcuctecess 7

| Washington & Georgetown R.R. Co. v. MeDade, 135.

- U.S. 554, 571, 10 S. Ct. 1044 ..... sivecieheeaades 12

Westover v. Chicago MS.P. & P. R. Co. (1936) 197.

Beh, Ti, Be Bees PEE cchcccvccceposesecd secs 7

Wilkerson v. McCarthy, 336 U.S. 53, 69 8. Ct. 413 .. “S7to

Williams v. an a See oe (1964) ...:.... 11

Yates v. Dann (1952 RC Del.) 11 FRD 386 ..../... 15, 27

2 1

rr eer seirsaindant ete --

aa 6 eee ye > 7

Oo POMP eee Bee ree

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“Cains Coint uf the united States

; October Term 1968 ,

No.

FRED CosenTINo,

Petitioner,

against

Tue Roya. NETHERLANDS’ SreamsHie Company,

‘Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT |

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals |

for the Second Circuit entered in the above entitled case

on January 18, 1968.

Opinion Below

The opinion of the United States District Court for the

Eastern District of New York, dated January 18, 1966.

The opinion of the Court of Appeals for the Second

Circuit is not as yet reported and is printed herein at

pages 32 to 34, .

Jurisdiction of this Court

The jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1).

Questions Presented

1. Should a Trial Judge be permitted to order a con-

ditional remittitur when he finds that the jury verdict is in

his opinion excessive without a finding that the verdict

shocked his conscience or was based on prejudice?

2. Should a Trial Judge exert pressure on a plaintiff

to accept a reduction of the amount of damages found by a

jury, by orderist¥a retrial of the issue of liability, as well

as damages, if plaintiff should refuse to accept the re-

duction, when, in fact, the issue of liability has been fully

and properly determined on the merits and has become

res adjudicata?

Reasons for Granting the Writ

The questions presented raise issues: which must be

determined by trial judges in the Federal Judiciary very

frequently during the course of the ever expanding work

‘ load of the Federal Courts. It is of importance that these

issues be clearly determined by the Court for the proper

and uniform administration of justice in the Federal Ju-

dicial system. A holding by this Court on the obligation:

. of a Federal Judge to order a retrial of only those issues

in a case deemed affected by error would eliminate a sub-

stantial amount of needless litigation involving issues

previously determined which if otherwise retried would

constitute a denial and miscarriage of justice in violation —

of constitutional guarantees of trial by jury.

The decision by the Court below is in conflict with

uniform and well established law and in violation of the

constitutional rights’ of all personal injury victims to a

trial by jury. -

The decision by the Court below constitutes a violation

of the Seventh Amendment of the Constitution « the

United States.

> ee vu aaa * - ores settle atie te ‘e 7 SEED ITE SEI OE IO APY ~

<7 RNS

The decision by the Court below is in violation of Rul

59(a) of theFederal Rules of Civil Procedure. :

The decision by the Court below was clearly and un-

questionably in conflict with the decision by this Honorable

Court in the case of Gasoline Products Co., Iac., v. Champlin

Refining Co., 283 U.S. 494, 51 S. Ct. 513, wherein the Court

held at page 515: |

‘‘Here we hold that, where the requirement of a

~ jury trial has been satisfied by a verdict according

to law upon one issue of fact, tiat requirement does

not compel a new trial of that issue even though

another and separable issue must be tried again.

As the issues arising upon petitioner’s cause of action

on the royalty contract are clearly separable from

all others and the verdict as to them already given

_ is free from error, it need not be disturbed. But the

uestion remains whether the issue of s is so

istinct and independent of the others, arising on

the counterclaim, that it can be separately tried.’’

The Court in the case of May Department Stores Co. v. -

Bell, 61 F.2d 830, cited Gasoline Products Co., Inc., v.

Champlin Refining Co., supra, and, in addition thereto,

quoted from the case of Simmons v. Fish, 210 Mass. 563,

97 N.E. 102, as follows:

‘In Simmons v. Fish, 210 Mass. 563, 568, 97 N.E.

102, 104, Ann. Cas. 1912D, 588, the court said:

‘The guiding principle is that, although a

verdict ought not to stand which is tainted with

illegality, there ought to be but one fair trial

‘ upon any issue, and that parties ought not to be

compelled to try anew a question once disposed —

of by a decision against which no illegality can

be shown. * * @9 9) .

— ON T RONT O N RR N I NNENR I e IIET ARI I 7 Mr PE eet EE TMNT 5 eM :

: —s < aigigee——aiee eee os ta —

Statement

pellant, an American citizen, born October 25, 1900,

employed aboard the SS Artemis as a longshoreman, was

injured on the-10th day of November, 1961 (34a- or. ,

He deseril ed the occurrence as follows (36a) :

in * Go ahead. Tell the jury exactly awn hap-

pened that morning. A. Then, we had put three

or four drafts of pipe on deck. The lighter captain

* hollered up to us—we were on deck—for somebody

to ‘move the line because it was windy and every time

they took up a draft, the lighter would hit the side

of the ship. So the captain of the lighter, asked

us'to move the lines. So we moved the breastline

and the springline from ore cleat to another (5)..:

As I was walking with the rope to move from one

cleat to another, there was grease and dirt on deck

—and I was careful stepping over these ropes but I

slipped and went into the rope and tripped and ‘fell

- down and hurt my knee.’’

The jury, before Hon. John F. Dooling, Jr. United

States District Judge, returned a verdict of $25,000. Judg-

On. February: 2, 1966, Judge ‘Dooling. entered an order

‘‘for a new trial unless plaintiff within 10 days of the date

of this order remits of record $12,000 of the verdict of

$25,000"? (84a). The appellant refused to remit (1a).

; The Court, although stating ‘‘On the issue of liability,

the verdict seems to be beyond challenge’’ (83a), never-

_ theless reversed this view and ordered the case retried on

the question of liability, as well as damages.

The case was retried before Hon. John R. Bartels,

United States District Judge, resulting in a verdict in

favor-of the appellant in the sum of $1,800.00. J udgment

was entered on : February 17, 1967 (1a).

"ment was entered January 18, 1966 (1a): ———

* Numbers in parentheses refer to pages of the appendix.

—

- ARGUMENT

The Court below has enunciated a new principle of law

which, in substance, approves the action of a Trial Judge

‘in substituting his evaluation of the damages in a personal

‘injury case in place of-a jury’s verdict without a . ;

requisite finding that the verdict “shocks the conscience”’

of the Court.

It is respectfully submitted’ that all plaintiffs should °

have the right to refuse to accept a Trial Judge’s evaluation

of the damages without being compelled to face the risk in-

volved in retrying the separate issue of liability, which has

already been properly decided by the jury without any :

question of error. :

The Court below stated that there was no precedent for

petitioner’s position. On that question, petitioner respect-

fully submits the following authorities wherein our Courts

have uniformly held that once a question: .of liability

has been determined then in the event of a new trial, the ©

issue to be retried should be limited to damages only. The

following citations establish the error concerning the

Court’s holding as to the absence of precedent: |

Dodson v. Raker, 1 F.R.D. 368;, |

Chesevski v. Strawbridge & Clothiers 25 F. Supp. —

325;

Huddleston v. Crain Brothers, Inc., 183 F. Supp.

874; 3

McSparran v. Hanigan, 295 F. Supp. 628 (1963); :

Boldurian v. A/B Svenska Amerika LTinien, 246

F. Supp. 413 (1965) ;.

Thompson v. Camp, 167 F.2d 733;

Rosa v. City of Chester, Pa., 278 F.2d 876;

The Noah’s Ark v, Bentley & Felton Corporation,

292 F.2d 437 (1961);

Mason v. Mathiasen Tanker Industries, Incorpo-

rated, 298 F.2d 2% (1962) ;.

Sealonns: v. A.M. Byers Company, 330 F.2d 657

. (1964) ;

. Mertens v. Flying Tiger. ms Inc., 341 F.2d 851

(1965) ;

Pownte v. United States hints Co.,; 359 F.2d 344 .

+ (1966) ; )

Guilford Glazer v. Jerome 8. itieeer and. Louis A.

Glazer, 278 F. Supp. 476 (1968) ; .

-Kovacovich v. Phelos Dodge Corp. err 62 Aris.

193, 156 P. 2d 240;-

Mayo v.Ephrom (1958) 84 Ariz. 169, 325 pod 814;

= Gentekos v. San Francisco’ (1958) 163 Cal. App. i

2d 691, 329 P. 2d 943; :

Farrar v. Wheeler (1906 Cal. NH) 145 F. 482;

Norfolk Southern R. Co. v.. Ferebee (1915) 238

U.S. 269, 59 L. ed. -1303, 35 S. Ct. 781;

Hiltz v. Atlantic Ref. Co. (1945 Ca. , Pa.) 151 Fed.

_ 2 159; :

“Atlantic Coast Line R. Co. v: Bennett (1958 Ca. 4

SC) 251 F.2 934;

Atchison, T.€S.F. R. Co. v. Gutierrez (1926): 30

“Ariz. 491, 249 P. 66;

Palmer v. Kelly (1938) 52 Aris. 98, 79 P2 344;

Hirsh v. Manley (1956) 81 Ariz, 94, 300 P2d 588;

Moeller v. Market Street R. Co. (1938) 27 Cal. App.

2d 562, 81 P2 475;

Brewer v. Second Baptist Church (1948) 32 Cal.

2d 791, 197 P2d 713;

” Nixon v. Lawhon (1954) 32 N.J. Super. 351, 108

A2d 480;.

Comarow v. Levy (1952 Sup. App. T.) 115 NYS.

. 2d 873;

First Mechanics Nat. Bank v. Katz (1955) 36 N.J.

Super. 552, 116 A2d 644;

Cannon v. Krabowitch (1959) 54 N.J. Super. 93,

148 AL 213;

Millworth Converting Corp. v. Slifka (1960) 10

App. Div. 2nd 568, 195 N.Y.S. 2d 536; ~

Spartis v. Pocas (1947 Sup. App. T.) 68 NYS 2d

462;

Burton v. Wilmington & W. R. a 84 N.C. 192;

Strother v. Aberdeen & A. R. Co., (1898) 123 N.C. -

197;

. Johnson v. Lewis (1960) 251 N. C. 797, 112 8. E. 2d

512; ,

Twenty-one Min. Co. v. Originals Sicteen to One

Mine (1920) 265 F. 469;

Tompkins v. Pilots Asso. for Bay & River Dela- |

ware, 32 F. Supp. 439; |

_ Meehan v. Central R. Co., 181 F. tia. 594;

_ Tsai v. Rosenthal, 297 F. 2 614; |

L. C. James Motor Co: v. Wetmore (1980): 36 Ariz. |

382, 286 P 180;

Murrow v. Whiteley (1952) 125 Colo. 392, (244 P2d

657 ; ;

Mendenhall v. ‘MacGregor Triangle Co. (1961): 358

- P2 860;

‘Westover v. Chicago M.S.P.4P. R. Co. (1936) 197

Minn. 194, 266 N.W. 741;

Rossman v. Newton (1984) 112 NJ. L. 261, 170 3

A 230;

Mangigan v. Toolin (1950) 77 RL 51, 73 A2 41;>

Cote v. Allen (1957) 50 Wash. 2 584, 313 P2 693.

ee a a a a |e

POINT I

. There was no legal or factual basis for theJearned |

Court below substituting: ‘his evaluation of the i injuries

for that of the j jury. |

Judge Dooling summarised the evidence as to damages

as. follows (83a):

“The amount of the damage award if. different

problems, Plaintiff was hospitalized with the right

knee injury frony November 15 through Deotnber, 9,

1961, and on November 27, 1961, conservative treat-

ment of the knee not being. successful, the prepatella

bursa was excised, some 40 or 50 superficial and deep

sutures being used. There were 46 office visits for

treatment ending April 6, 1962, and plaintiff used

crutches until mid-Febrnary 1962,’ Plaintiff lost four

months. and four days from work. His earnings. in

> 1960 were $5,000 to $5,500 and he had averaged $4,000

_ or $5,000 a year over a five year, period. His direct -—

earnings loss approximated $1,800. There was no.

claim of: lasting impairment ef earning capacity.

Plaintiff returned to his regular work on March 4,

‘1962, and he has lost no time since his return by rea-

son of the injury. Medical and hospital expenses

were, based on a qualified estimate, $1,269.50. ”’

The appellant testified. that after being totally disabled

until the middle of March, that he had to be put on light

work for about a year. He testified that he still had stiff-

ness of the leg, éven up to the time of the trial; strain on

picking up weight from the ground; fear of the leg buckling _

_* because of loss of strength and weakness; and, still suffered -

. from pain on putting any weight on the leg (38a-39a).

_ After describing the nature and extent of the injury °

and treatment, Dr. Mario F. Tagliagambe concluded that

the condition’ was permanent ( 2a to 32a—42a-58a).

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- POINT HE

The Court ie distcamedet the applicable .

controlling law, as enunciated by this honorable. Court

in the case of Berner v. British Commonwealth Pacific

Airlines, Ltd., 346 F 2d 532 (1965). ;

It seems clear thatthe Court below pee to the appel-. |

laut his constitutional right to a trial by jury, as repeatedly

‘enunciated by the, Supreme. Court and as particularly

| pointed out by this Court in the Berner case, supra, wherein

this Court quoted at page 536 froin the cases of Tennant. v.

Peoria & Pekin Union Ry., 321 U.S. 29, 64 S. Ct. 409 and

Lavendar v. Kurn, 327 U.S. 645, 66 S. Ct. 740. See also:

Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413.

There was 1iothing in the case which justifies an order

directing the retrial of the question of liability. Judge

Dooling himself stated that there was no basis for retrying |

the question of liability, his expression being that as here-

tofore stated, ‘‘On the issue of liability. “Se verdict seems —

to be beyond challenge’’ (83a).

Had the verdict indicated that it was the result of an

unwarranted emotional reaction on the part of the jury,

then and in that event a new trial would be justified, but

only as to the question of damages. Glazer v. Glazer, 374

F.2d 390 (1967).

_ The verdict in the sum of $1,800 in the second trial was

clearly a compromise verdict, wherein .the question of lia-

bility and contributory negligence was obviously a most de-

termining factor in keeping the verdict down, as clearly

- indicated by™ defense counsel’s remarks when the motion

was made to set aside the verdict in the second trial.

‘Mr. McKiernan: Well, to that your Honor, I can

only say. that the Court charged ‘the jury, and

charged them well, on the question of contributory

negligence, and to what extent it —_ reduce a re-

-f

covery—there is no way in are we can sii the .

* minds of the jury at this stage. They may very well

have found 75, 85, 95 per cent contributory negli-

gence in the case on the part of the plaintiff. ed

. The retrial on the question of liability constituted a seri- |

‘ous prejudice to the appellant, in violation of his-constitu-

tional rights to a jury trial. See Wilkerson v. McCarthy, —

- supra, and particularly the aii opinion of Mr. Jus- |

tice Frankfurter. ,

A verdict in.the sum of $25, 000 which the Court feels is”

almost twice as ‘much as he should get is not so grossly ex-

cessive as to shock the Court’s sense of justice and impro-

priety. Delaney v. New York Cent. R. Co., 68 F. Supp. 70.

There is nothing so shocking i in the verdict as to justify

the setting aside of the verdict of $25,000, as was pointed —

out by this Court in the case of Dagnello \ v. Long Island ..

Rail Road Company, 289 F. aa 197 (1961).

_, See also: ie , : |

Lopoceyk v. Chester A. Poling, Inc., 152 F. 2d 457. -

POINT 111

| Ordering the question of. liability retried sioainetind’

reversible error. »

As recently .as ‘ele 26, 1966, in ihe case of Towle

'v. Boeing Airplane Company, 364 F.2d 590, the Court

cited. the controlling law as laid down by the Supreme

Court of the United States, quoting from Lawlor v. National

’ Screen Service, 349 U.S. 322, 326, 75 S. Ct. 865, 867:

“Thus, under the doctrine of res judicata, a "Sader.

ment ‘on the merits’ in a prior suit involving the

same parties or their privies bars a second suit based

on “the same cause. of action.’” (Emphasis ours. )

a re ay pret ins if = ‘es \ 2 sf 4 rf yur sare — ™ :

i a Sn 0c ATL AND coe YL Sv Laat Shik Ne ia DREN

| 1G oo tea

To the same effect see: . ve | .

_ Williams v. Murdoch, 330 F.2d 745 (1964) ; ;

” Travelers Indemnity Co.) v..State Farm Mutual |

Auto, Ins. Co., 330 F.2d 250 (1964) ;

Jefferson School -of So cial Science v. Subversive

Act. ee: Bd., 331 F.2d 76 (1963).

a | : See alter

| | “McAllister v. United States, 248 US. 19, 75 S.

| Ct. 6; | |

_ Tennent v. Poorts &,P. U. R. Co., supra;

le . Morales v. City of. ‘Galveston, 370 v. S. 165, 82

S. Ct. 1226 (1962);

Lind vy. Schenley Industries, Inc., 278 F.2d 79, : .

cert. demed. 364 U.S. 835, 81 S. Ct. 58;

__ Alison v. United aes 251 F.2d 74 (2d Cir. 1958).

In the case. of Panto v. Safeway Traiis, Inc., 260 F.

aa 670 (1966) the Court stated at page 671:

[1] The doctrine of collateral estoppel by judgment.

operates to prevent the same parties from relitigat-

ing ultimate factual issues which have actually been.

—td ’ litigated and finally determined in adversary pro-

| “+ eeedings. between them. Cromwell v. County of

Sac, 94 U.S. 351, 24 L. Ed. 195 (1876). See, gen-

—_— Moore’s Federal Practice, P. O. 441 et seq.’’

To the same effect see:

‘McNellis-v: First Federal Sav. é .L. Ass’ n of

- Rochester, N.Y., decided July 27, 1966, 364

. F.2d 251;

International Breweries, Ine. v. Anheuser-Busch, . *

Inc., decided August 3, 1966, 364 F.2d 261.

-In the case of Silverii v. Kramer, devia Siekany

18, 1963, 314 F.2d 407, the Court anid at ‘page 410:

RPT EE % Se rpceceears cee piyiererer ns soe ieee ce eect enrasre 4 _ .

— bo i Latent tha indians insist pits tanita - diac: Baa a ha a de ae ee ee Gee he fie en ae

» wt

“It is the jury, not the court, which is the fact-

finding body. . It weighs the contradictory evidence

and inferences, judges the credibility of witnesses,

receives expert instructions, and draws the ultimate

conclusion as to the facts. The very eszence of its

function is to select from among conflicting infer-

ences and conclusions that which it considers most.

reasonable. Washington & Georgetown R. Co. v.

McDade, 135 U.S. 554, 571, 572 [10 S. Ct. 1044, 34

L. Ed. 235], Tiller v. Atlantic Coast Line R. Co.,

supra [318 U.S. (54) 68, 63 S. Ct: (444) 451 (87

L. Ed. 610)]; Bailey v. Central Vermont Ry. 319

saan 353, 354, [63 S. Ct. 1062, 1064, 87 L. Ed.

Judge Medina, speaking for the Court iit-the case of

Dagnello v. Long Island Rail Road Company, supra, de-

cided March 24, 1961, stated at page 806:

“If the question of excessiveness is close or in

balancé, we must affirm. The very nature of the

“problem counsels restraint. Just as the trial Judge

is not called upon to say whether the, amo

higher than he personally: would have awarded,"*

so are we appellate judges not to decide whether

we would have set aside the verdict if we were

presiding at the trial, but whether the amount is so

high that it would be a denial of justice to permit

it to stand.’’

The requirement that the. plaintiff retry his case

constitutes a violation of his rights as guaranteed by the

United States Constitution, Amendment 7, as clearly pointed

out in the Dagnello case, supra. (Footnote 12, page 805).

**12. See the following comments of Mr. Justice

Gray in Capital Traction Co. v. Hof, 1899, 174 US. 1,

‘13-14, 19 S. Ct. 580, 585, 43 L. Ed. 873: .

_ ***Trial by jury,’ in the primary and usual’ sense

rm at

of the te common law and in the American

constitutions, is not merely a trial by a jury of

twelve men before an officer vested with authority

' . to cause them to be summoned and empanelled, to _

vf er rear r

administer oaths to them sled to the constable in

charge, and to enter judgment and’ issue execution

on their verdict; but it is a trial by a jury of twelve

men, in the presence and under the superintendence

of a judge empowered to instruct them on the law

aud to advise them on the facts, and * * * to set

aside their verdict, if in his opinion, it is against

the law or the evidence. This proposition has been

so generally admitted, and so seldom contested, that

there has been little occasion for its distinct as-

sertion:’

- The. question of liability ae been fully tried and

determined by a jury, it is binding in any subsequent -

proceeding, accordingly, in the present trial. See: R. D.

Wood Company v. Phoenix Steel Corporation, 327 F.2d

921, at page 925.

In the light of the injuries and saieiiieeat disability,

the granting of the second trial and the verdict thereizt

recovered is tantamount to a denial of justice.

In the light of the uniform decision throughout the

country it clearly appears, without exception, that once the

question of liability is properly and fairly tried and de-

termined, the successful plaintiff should not be required to .

relitigate the same issue as in the instant case, where the

question of liability is completely and a in nowise

interwoven with the question of damages.

This new and radical departure from such _ and

well established law throughout the country places in

jeopardy the American concept of a trial by jury and

imposes a heavy and unconscionable burden upon a plaintiff

who is compelled to choose’ between submitting to a re-

mittitur or risk a retrial of his entire case with the double

jeopardy of an adverse decision.

There does not seem to be a single authority approving

a new trial of a question already fully tried and determined

without a showing that the question of liability is interwoven ,

with the question of damages to such an extent ont it

cannot be considered independently.*

* United States—Darbrow v McDade (1958, CA3 Pa) 255 F2d

610; Bass v. Dehner (1937, DC NM) 21 F Supp 567. But see

McKeon v Central Stamping Co. (1920, CA3 NJ) 264 F 385,

overruled in Gasoline Products Co. v Champlin Ref. Co. (1931)

283 US 494, 75 L ed 1188, 51 S Ct 513, as stated in Darbrow v

McDade (1958, CA3 Pa) 255 F2d 610, Norfolk Southern R. Co.

v Forebee (1915) 238 U.S. 269 35 sct, 781 59 L.Ed. 1303.

’ California —Leipert v Honold (1952) 39 Cal 2d 462, 247 P2d

324, 29 ALR2d 1185; Tumelty v Peerless Stages (1929) .96 Cal

App 530, 274 P 430%; ‘Adams v Hildebrand (1942) 51 Cal App 2d

117, 124 P2d 80; Crandall v McGrath (1942) 51 Cal App 2d 438,

124 P2d 858; Wilson v Long Beach (1945) 71 Cal App 2d 235, 162

P2d 658, 163, P2d 501; Kershner v Morgali (1957) 152 Cal App

2d 884, 314 P2d 105, Gentekos v San Francisco (1958) 163 Cal

App. 24 691, 329 P2d 943.

Colorado.—Shirley v Merritt (1961, Colo) 364 P2d 192.

Connecticut.—Murray v Krenz (1920) 94 Conn 503, 109 A 859.

Georgia. —Cowart v Strickland (1919) 149 Ga 397, 100 SE 447,

7 ALR 1110. !

_ [Minois—Paul Harris Furniture Co. v Morse (1956) 10 Ill 2d

28, 139 NE 2d 275; Morris v Spence (1957) 14 Ill App 2d 456,

144 NE2d 829.

Kansas.—Brokmann v Lawson (1925) 117 —_ 386, 232 P 601,

quoted; Paul v Western Distributing Co. (1935) 142 Kan 816, 52

P2d 379; Posey v Johnson (1937) 145 Kan 742, 67 P2d 698; Parker

v Allen (1951) 171 Kan 360, 233 P2d 514; Hukle v Kimble —

172 Kan 630, 243 P2d 228.

Kentucky—Allen v Large (1951, Ky) 239 SW24 225; Smith v_

Webber (1955, Ky) 282 SW2d 346; Kearns. v Sparks (1956, Ky)

-296 SW2d 731.

Maine.—De Blois v Dunkling (1950) 145 Me 197, 74 A2d 221;

v Fogg (1947) 152 Me 464, 54 A2d 538; Roy v Huard

(1961, Me) 174 A2d 41.

Slenueste~Laniiied v Erickson (1930) 180 Minn 185, 230

NW 473 (overruled on other grounds; Jimmie Motors, Inc. v

Larson (1958) 253 Minn 484, 92 NW2d 803); Hanse v St. Paul

C. .R. Co. (1944) 217 Minn 432, 14 NW2d 473.

780.

‘15

In Yates v. Dann (1951, RC Del) 11 FRD 386, it was

stated that the theory behind Rule 59(a) of the Federal 2

Rules of Civil Procedure, authorizing the court to grant .

a new trial ‘‘on all or part of the issues,’’ is that a party

WwW ho has already had his day in court as to a~ particular

issue may not have another. opportunity to relitigate the

Mississippi—Yazoo & M. V. R. Co. v Scott (1914) 108 Miss

871, 67 So 491, LRA1915E 239, Ann Cas 1917E 880; Sussman,

Wormser & Co. v Sea Food, Co. (1922) 130 Miss 632, 94 So 795.

Missouri—Spalding v Robertson (1947) 357 Mo 37, 206 SW2d

517. . .

New Hampshire—Moulton v Langley (1923) 81 NH 138, 124

A 70; Emerson v Twin. State Gas & Electric Co. (1934) 87 NH

108, 174 A 779; Monroe v Sterling (1943) 92 NH 488, 32 A2d

820.

New Jersey. pattie tiles Glass Co. v West Jersey & S. R. Co.

(1908) 76 NJL 9, 69 A491, affd 76 NJL 708; 72 A 65 (obiter) ; ”

.. Robinson v Payne (1923) 99 NJL 135, 122 A 882; Rossman v

Newbon (1934) 112 NJL 261, 170 A 230; Degenring v Kimble

(1935) 115 NJL 379, 180 A 685; Phipps v Hulit (1942): 128

NJL.74, 24 A2d 506; Esposito v Lazar -(1949) 2 NJ 257, 66 A2d

172; Hendrikson v Koppers Co. (1953) 11 NJ 600, 95 A2d 710;

Erdo v Stahlin (1951) 11 NJ Super 305, 78 A2d 303; Justice v ©

Weise (1951) 14 NJ Super 9, 81 A2d 178; Beggs v Pasalano

(1951) 14 NJ Super 549, 82 A2d 640; Wax vy Altshuler (1952)

22 NJ Super 229, 91 A2d 768.

New Mexico—Baros v Kazmierczwk (1961) 68 NM 421, 362 -

“oe 798. ‘©

North*Carolina.—Starnes v Tyson (1946) 226 NC 395, 38 SE2d

211. ed

Pennsylvania.—Daugherty v Erie R. Co. (1961) 403 Pa 334,

169 A2d $49. Cason v Smith (1958) 188 Pa Super 376, 146 A2d

634; Mains v Moore (1959) 189 Pa Super 430, 150 A2d 549;

Friedman v Matovich (1959) 191 Pa ho 275, 156 A2d 608. —

Rhode Island —Sullivan v John. R. White & Son (1914) 36

RI 488, 90 A 738; Riley v Tsagarakis (1933) 53 RI 261, 165 A

16 -

same point unless a partial new trial will result in a mis-

carriage of justice, and that since the adoption of the Fed-

eral Rules of Civil Procedure, the courts have indicated a

Vermont.—Parizo v- Wilson (1929) 101 Vt 514, 144 A 856.

Virginia—Kirn v Bembury (1935) 163 Va 891, 178 SE 53.

Washington —Greenwood v, Olympic, Inc. (1957) 51 Wash 2d

18, 315 P2d 295.

West Virginia. —Munden v Johnson (1926) 102 W Va 436,

135 SE 832.

Wisconsin.—Smith~v Atco Co. (1959) 6 Wis 2d 371, 94 NW2d

697, 74 ALR2d 1095.

As to limitation by trial and appellate courts, recpectively.

Montana.—Seibel v Byers (1959, Mont) 344 P2d 129.

New York.—Schroeder v Syracuse Transit Corp. (1959) 9 App

Div 2d 1012, 194 NYS2d 244; Vzga v Forrest (1960) 10 App Div

2d 604, 195 NYS2d 743; Hyler v. Hyer (1941) .177 Misc 68, 29

NYS2d 223.

Ohio.—Edelstein v Kidwell (1942) 139 Ohio St 595, 23 Ohio

Ops 93, 41 NE2d 564.

South Carolina.—South Carolina Electric & Gas Co. v Aetna Ins.

Co. (1958) 233 SC 557, 106 SE2d 276.

. Texas.—Fisher v Coastal Transport Co, (1950) 149 Tex 224,

230 SW2d 522; Waples-Platter Co. v Commercial Standard Ins.

Co. (1956) 156 Tex 234, 294 SW2d 375; Pinson v Dreymala (1959,

Tex Civ App) 320 SW2d 152, error. dismd. See Hley v Hughes

(1958) 158” Tex 362, 311 SW2d 648, 85 ALR2d 1.

Montana.—Seibel v Byers (1959, Mont) 344 P2d 129.

New’ Y ork.—Schroeder v Syracuse Transit Corp. (1959) 9 App

‘Div 2d 1012, 194 NYS2d 244; Vzga v Forrest (1960) 10 App Div

2d 604, 195 NYS2d 743; Hyler v Heyer _— 177 Misc 68, 29 ©

NYS2d 223.

) Texas——Fisher v Coastal Transport Co. (1950) 149 Tex 224,

230 SW2d 522, and Waples-Platter Co. v Commercial Standard

Ins. Co. (1956) 156 Tex 234, 294 SW2d 375. |

In Hyler v. Heyer (1941) 177 Misc. 68, 29 NYS2d 223, supra,

the court stated that the common-law rule that a verdict was in-

regi - eat -

wn Eee = Be ee te em

trend toward limiting retrials to specific issues whenever

. possible, ‘particularly in personal injury cases where the

issue of damages ‘is independent from that relating, to lia-

bility.’’ —.

fais ? "2

divisible was still i in CRidpnce i in that jurisdiction, so as to preclude —

. the limitation of a’ new trial to the issue-of damages only. ~~~°"-"

Seibel _v Byers (1959, Mont) 344 P2d. 129; Fisher v Coastal.

Transport Co. (1950) 149 Tex 224, 230 SW2d 522; Waples-Platter

Co. v Commercial Standard Ins..Co. (1956) 156 Tex 234, 294 SW2d

375; Iley v Hughes (1958).158 Tex 362, 311 SW2d-648, 85 ALR2d

F Pinson v Dreymala (1959, Tex Civ App) 320 SW2d 152, error

dismd.

California.—Adams -v. Hildebrand (1942) 51 Cal App 2d 117,

124 P2d 80.

Massachusetts. —Opinion of Justices (1911) 207 Mass 606, 94

NE 846.

Minnesott.—Lee v Zaske (1942) 213 Minn 244, 6 waa 793.

Mississippi—Yazoo & M. V. R. Co. v Scott (1914) 108 Miss -

871, 67 So 491, LRAI915E 239, Ann-Cas 1917E 880.

New Jersey. —Robinson v Payne (1923).99 NJL 135, ‘122 A.

. 882.

See McKeon v. Central Stamping Co. (1920, CA3 NP) 264 F

385 (which is referred to in Darbrow v McDade.(1958, CA3 Pa)

255 F2d 610, as having been overruled in Gasoline Products Co.

Vv Champlin Ref. Co. (1931) 283 US 494, 75 L ed 1188, 51 S Ct

513), in which-it was held,that the action of the District Court in

granting a new trial wherein the sole issue to be determined was

the amount of the damages sustained constituted a denial of the

constitutional right to.a jury trial preserved by the Seventh Amend-

ment.

Munsey v Safeway Stores, Inc." (1949, Mun Ct App Dist Col)

65 A2d ‘598.

_ See also Kistler v Wagoner (1946) 315 Mich 162, 23 NW2d

* 387. :

Bass v Dehner (1937, DC NM) 21 F Supp 567.

Norfolk Southern R. Co. v Ferebee (1918) 238 US 269, 59 -

ed 1303, 35 S Ct 781; Jarrett v High Point Trunk & _ Co.

(1907) 144 NC 299, 56 SE 937.

Scott’v Brogan (1937) 157 Or 549, 73 P2d 688.

Lampesis v Comolli (1958) 101sNH 491, 147 A2d 114. —

In Darbrow-v. McDade (1958, CA3 Pa), 255 F2d 610,

‘the court overruled the contention that it was reversible

error to limit a new trial to the issue of damages, saying:

’ For particular requisites, tests, and factors.

For review of selected cases individually.

Emerson v Twin State Gas & Electric Co. (1934) 87 NH 108,

174 A 779; Monroe v Sterling (1943) 92 NH 488, 32 A2d 820;

Lampesis v Comolli (1958) 101 NH 491, 147 A2d 114.

~ . Bass v Dehner (1937, DC NM) 21 F Supp 567.

. United States—Farrar v Wheeler (1906, CA1 NH) 145 F 482;°

Darbrow. v McDade (1958, CA3_ Pa) 255 F2d 610; Tompkins

v Pilots Asso. for Bay & -River Delaware (1940, DC Pa) 32 F. ©

Supp 439; Yates v Dann (1951, DC Del) 11 FRD 386.

Arizona.—Atchison, T. & S. F. R. Co. v Gutierrez (1926) 30

Ariz 491, 249 P 66; L. C. James Motor Co. v Wetmore (1930)

36 Ariz 382, 286 P 180; Palmer v Kelly (1938) 52 Ariz 98, .79

P2d 344; Kovacovich v Phelps Dodge Corp. ( ~g 5 Ariz 193,

156 P2d 240; Hirsh v Manley (1956) 81 Ariz 94, P2d 588.

California.—Leipert v Honold (1952) 39 Cal 2d 462, 247 P2d

_ 324, 29 ALR2d 1185 ( declaring that the power of a trial or appellate

court to order a new trial on fewer than all the issues. “is authorized

adh statute in this state. (Code Civ Proc §§ 657, 662.)”).

** Colorado.—Murrow-v Whiteley (1952) 125 Colo 392, 244 P2d

657.

Florida.—Florida E. C. R. Co. v. McRoberts (1933). 111 Fla

278, 149 So 631, 94 ALR 376; Brinson v Howard (1954, Fla) 71

So 2d 172.

Idaho. _—Mendenhall v MacGregor Triangle Co. (1961, Idaho)

358, P2d 860.

-Kansas.—Gill v Smith ( 1926) 121 Kan 18, 245 P 1041 fenale-

ing the provisions of Gen Stat 1949, 60-3004, quoted in Hukle v

Kimble (1952) 172°Kan 630, 243 P2d 255; Paul v Western Dis-

tributing Co. (1935) 142 Kan 816, 52 P2d 379 (involving the

application of Gen Stat. 1949, 60-3004, quoted in Hukle v Kimble

(1952) 172 Kan 630, 243 P2d 225; Hukle v Kimble (1952) 172

Kan 630, 243 P2d 225.

Kentucky.—Smith v Webber (1955, Ky) 282 SW2d 346; Scuddy —

Mining Co. v Couch (1956, Ky) 295 SW2d 553; Louisville %& N. R.

Co. v Mattingly (1958, Ky) 318 SW2d 844; Walling v Flynn

(1960, Ky) 332 SW2d 638.

anhegeansitenemaihe i i re nae a

. Tti is iii true that i in McKeon \ v. Central Stamp-

ing Co., 1920, 264 F. 385, this court so held. But our ~

holding i in this regard was overruled by the Supreme

Massachusetts——Opinion of Justices (1911) 207 Mass 606, 94

NE 846.

Mississippi —Reynolds Vv Seine (1957 ) 230 Miss 34, 92 So .

2d 232.

Missouri—Kickham v Carter (1960, Md) 335 SW2d 83;

Wessels v Smith (1960, Md) 341-SW2d 104; Franklin v Kansas

City Public Service Co. (1945) 239 Md: App 151, 186 SW2d 546;

‘Zarisky v Kansas City Public Service Co. (1945), 239 Mo App

396, 186 SW2d 854; Ziervogel v Royal Packing Co. (1949, Md

App) 225 SW2d 798 ; May v Hexter (1950, Mo App) 226 SW2d

383; Thompson y..St. Louis Public Service Co. (1951, Mo App)

242 SW2d 299; State exrel. Moore v Morant (1954, Mo App)

266 SW2d 723; Moore v St. Louis S. R. Co. (1957, Mo App). 301

SW2d 395 (holding statutes inapplicable under the circumstances

involved) ; Gulley v Spinnichia (1960, Md App) 241 SW2d 301.

New Jersey—Robinson v Payne (1923) 99 NJL 135, 122 A

882; Juliano v Abeles (1935) 114 NJL 510, 177 A 666; Paolercio v

Wright (1949) 2 NJ 412, 67 A2d 168; Rempfer v Deerfield Packing

Corp. (1950) 4 NJ 135, 72 A2d 204 (in‘which the court referred to .

Rule 3:59-1 as authorizing the limitation) ; Cannon v Krakowitch

(1959) 54 NJ Super 93, 148 A2d 213; Angel v Rand Express Lines,

Inc. (1961) 66 NJ Super 77, 168 A2d 423 (in which the court re+

ferred to “R. R. 1:5-3(b)” as authorizing the eames .Walder

‘vy Manahan (1941) 21 NJ Misc. 1, 29 A2d 395.

North Carolina oe v Shelton (1944) 224 NC 754, 32

SE2d 350.

North Dakota.—Deschane Vv McDonald (1957, ND) 8 NW2d

518.

Pennsylvania. enon v Alba (1920) 266 Pa 444, 109 A 796,

9 ALR 485.

Rhode a, v New. York, N. H. & H-R. Co. (1911)

33 RI 83, 80 A 406, Ann Cas 1913B 356.

Utah—Wellman v Noble (1961) 12 Utah 2d 350, 366 P2d 701

‘(under Rule 59(a) of Utah: _— of Civil Procedure).

20 °

Court i in Gasoline Products Co. v. Champlin Refin-

ing Co., 1931, 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. -

1188, and the doctrine of that case has been imple-

Virginia. ~ieet v Carrington (1924) 138 Va 22, 120: SE 856;

Johnson v Kellam (1934) 162 Va 757, 175 SE 634; Walker v Crosen

(1937) 168 Va 410, 191 SE 753; Isenhour v McGranighan (1941)

178 Va 365, 17 SE2d 383; Kavanaugh v Donovan (1947) 186 Va

85, 41 SE2d 489; Certified T. V. & ee Co. v ————

€1959) 201 Va 109, 109 SE2d 126.

- -Canada.—Bedford, v Crapper (1949) Ont Week N 266, atid

3 ‘DLR 153 (CA). _

In Florida E. C. R. Co. v McRoberts (1933) 111 Fla 278, 149

; So 631, 94 ALR 376, the court applied § 4640, CGL § 2921, RGS

- reading ds follows: “Hereafter an ‘appellate | court in reversing

a judgment of a lower court brought before it for review by writ of

error may, by the order of reversal, if the error for which reversal

is sought is such as to require a new trial of the action in the court

below, direct that a new trial shall be had on all the issues shown

by the record or upon a part of such issues only, and when a reversal |

is had with the direction for a new trial to be had on a part only of

the issues, all other issues shall be deemed to be settled conclusively

in favor of the defendant’ in error.” The court said: “Under the

foregoing statute, the Supreme Court has authority when ordering

a new trial to correct an error as to which reversal is sought,’ to

direct that a new trial shall be had on all the issues shown’ by the

record, or upon a part only of. such i issues, as the right and justice

- of the case may demand.”

In Reynolds v Snowden (1957) 230 Miss 34, 92 So. 2d 232,

the appellate court, in reversing a judgment in favor of the plaintiff

and remanding the case for a new trial on the issue of damages only

__- because of the erroneous admission of evidence as to the extent and.

nature ‘of the-injuries sustained by the plaintiff, referred to “Revised

Rules, Supreme Court of Miss. (1953) Rules 12, 13.”.

. In _Durante-v Alba:(1920) 266 Pa 444, 109 A 7%, 9 ALR 485,

supra, an action for the destruction of a building, in which it was

hejd on appeal that “the court below was right in entering judgment

- for plaintiffs; but wrong in the measure of damages adopted by it,”

the court said: “Happily, under §1 of the Act of fame 16, 1836

(P. L. 785), and §2 of the Act of May 20,1891 (P.L. 101), this

' error can be corrected by so modifying the judgment as to set aside ~

; the assessment of damages, and by remitting the\record with a pro-.

cedendo, with leave to. produce er evidence i in — that the ae

ne may be properly a ihe

Pee

mented sili by Rule 59(a) of the ey

Rules of Civil Procedure, 28 U.S.C.A., and has been :

followed i in this circuit.’’

In Smith v. W eer (1955 K 7 282 SW2d 346, the court

made the following statement with respect to statutory pro-

visions and rules of court in that Jurisdiction :

‘‘Before the adoption of the Civil Biles of: Prac-

tice and Procedure, it. was the prevailing rule in this

jurisdiction that a new trial upon reversal of a judg-

ment was tried de novo with a few exceptions not —

applicable to personal injury cases and where the

classes of damage were .easily ‘severable. .. ./ The

‘appellant submits that CR 59.01 provides for such

‘partial retrial since it declares that, _ Ress

“A new trial may be granted . . . on all or part

of the issues,’

which is different from the provision of See. 340

of the Civil Code. This feature of the rule follows

corresponding Federal Rule 59, 28 U.S.C.A. .

It is a matter of discretion whether the court shall

direct only a partial retrial. That should be done

only when it is clear that no bonus will result

from ae doing.’’

In Opinion of Justices (1911), 207 Mass 606,’ 94 NE. 846,

it was

stated that.it was within the constitutional power of

the General Court to provide by law that ‘‘if in a civil

In Kavanaugh v Donovan (1947) 186 Va 85, 41 SE2d 489, the’

appellate court, in remanding the case for a_ new trial because of an

error in the admission of evidence and the giving of instructioris

relating to the damages recoverable, limited the new trial to the issue -

of damages, referring to “Code 1919, § 6365,”” quoted in’ Walker v

Crosen

(1937) 168 Va 410, 191 SE 753.

Waples-Platter Co. vy Commercial Standard Ins. Co. (1956) 156 .

Tex 234, 294 SW2d 375; Iley v Hughes (1958) 158 Tex 362, -

-SW2d 648, 85 ALR2d 1.

Ziervogel v. Royal Packing Co. (1949, Mo App) 225 SW2d 798,

and Moore v St. Louis S. R..Co. (1957, Mo App) 301 SW2d 395.

92.

case ... the sole ground for the. setting aside of a verdjet

for the plaintiff is that the verdict is excessive, or inade-

quate, then a new trial ‘of said case shall be limited to the

question of the amount of damages.’’

Robinson v, Payne (1923), 99 NJL 135, 122A 882,”

involved the eppiication of provisions reading as follows:

‘In case a new trial i is granted it shall only be a

new trial of the question or. questions with respect

to which the verdict or decision is found to be wrong,

if separable. When a new trial is ordered because

the damages are excessive or inadequate, and for

no other reason, the verdict shall be set aside only

in respect of damages, and shall stand good in all

other respects.’’ (Rules 72 and 73 of the Practice

‘Act of 1912, subsequently designated as Rules 131

and 132 of the Supreme Court.)

With respect to such provisions, the court said:

| “No doubt these statutory provisions were en-

acted in-this state, and somewhat similar ones in

other states, because of the apparent conflict of opin-:

ion in this country as to the power of the courts

to grant a partial new trial under the common law.

. In our own state both trial courts and appellate

courts have exercised the powers conferred by the

rules in question. ef

In sustaining the quoted. provision against objections

' on constitutional grounds, the court said further:

. ‘‘Such a provision is a mere regulation of pro-

cedure and does not — any constitutional

: rights. is

In Juliano v. Abeles (1935), 114 NJL 510, 177 A 666,

the court, in overruling a motion for the limitation of a new

trial to the issue of damages, said with respect to the appli- _

cation of Rules 131 and 132 of the court, quoted in Robinson °.

. v. Payne, supra:

. ‘As pointed out, the exercise. of the power con-

ferred by these rules rests in the sound discretion

of the court, and the limitation of a new trial to the

REPAY: OT ee I OR

ascertainment of the quantum of mine will not

be ordered unless it clearly appears that the ends of

justice will be served thereby.. To justify such a.

limitation, that question must be entirely distinct

and separable from \the issue of liability ; PPro

such procedure wouldwork a denial of a fundamental

right. .{. . It must be Pa tgrcagr: if that course is to be- |

pursued, that the verdict on the basié issue of liability

is not tainted: with illeghlity. The new trial cannot’

be narrowed to the quantum of damages unless it is

plain that the error committed at the trial ‘was so —

limited in character as with justice to both parties to

be separable from the other issues determined by the

first verdict.’ ’’ as

Particular requisites, tests,.and, factors.

The prime requisites’ for the limitation of a new trial i in

a tort action. to the‘ issue of damages, where such limitation

is permissible under the local rules. or, practice, are (1)

that the issue of damages be entirely separate and distinct

from the issue of liability, (2) that the liability of the

defendant be definitely established, and (3) that such

limitation will not operate to the prejudice of the defend-

ant. It has frequently been stated, furthermore, that the

power to limit the new trial to the issue of damages must be,

exercised with caution,’ and it has been held that any doubt |

1 United si ie Rie v er (1937, DC NM) 21 F Supp

567.

California.—Leipert v. Honold (1952) 39 Gl 2d 462, 247 P2d ©

324, 29 ALR2d 1185.

Massachusetts Simmons v Fish —_ 210 Mass 563, 97 NE

102, Ann Cas 1912D 588.

New Jersey —Robinson v Payne (1923) 99 NL 135, 122 A .

882; Phipps v Hulit (1942): 128 NJL 74, 24 A2d 506 ; Coll v Sherry

(1959) 29 NJ 166, 148 A2d 481; Yormack v Farmers’ Co-op Asso.

(1951) 11 NJ Super 416, 78 A2d 421; Beggs v Pasalano (1951)

14 NJ Super 549, 82 A2d 640; Gilbert v Lahn (1946). 24 NJ. Misc

336, 49 A2d 248. ey |

as to the propriety of such limitation monat be resolved

against it.”

“Where a new trial is sought by both parties and has been

granted on the motion of one as to all issues, a subsequent

motion by the other for limitation. of such trial to the na

of damages has been held properly refused.’

_ It has been held that a new trial on the issue of damages

only cannot be granted in’a personal injury action where

‘ the jury may mitigate the damages under a comparative

negligence law, where’ there is a substantial disparity

' between the injuries sustained and the damages awarded,

and where the verdict does not indicate whether or not the

jury found the plaintiff-guilty of contribytory magugaite

and reduced the damages accordingly.’ °

North Carolina.—Jarrett v High Point Trunk & Bag ” (1907)

144 NC 299, 56 SE 937.

North Dakota.—Deschane v McDonald (1957, ND) 8 NW2d

sPemssloonia—Mains v Moore (259) 189 Pa Super 430, 150

A2d 549.

Vermont —Parizo v Wilson (1929) 101.-Vt 514, 144 A 856.

In Phipps v Hulit (1942) 128 NJk74, 24 A2d 506, supra, it

was said: “The severance of the question of liability from that *

of the amount of damages, as is done in the restricting of a new

trial to no more than a reassessing of damages, should be exercised

with particular care and caution, as this is apt to involve the question

of whether the jury, although not satisfied of plaintiff's right to

recover, may still, misguidedly and illogically, have brought in a

verdict for the plaintiff; and the granting of a new trial, limited to

the question of damages only, would leave the plaintiff secure on

the finding of liability and give him the opportunity to prove his

damages before a jury which would be bound to assume that the

finding of liability had been fully deserved.”

* Leipert v Honold (1952) 39 Cal 2d 462, 247 P2d 324, 29

ALR2d 1185.

1. Myers v Moffet (1958, Mo) 312 SW2d 59.

2. Hanisch v Body (1958) 77 SD 265, 90 NW2d 924.

ES A ee

The failure of the plaintiff to request the limitation of

the new trial to the issue of damages has been assigned as a

reason for not ordering such limitation.*

Circumstances indicating that an erroneous or improper .

verdict was motivated or influenced by passion or prejudice

have generally been held to preclude limitation of the new

‘trial to the issue of damages,‘ unless it appears that the

determination of the issue as to liability was not affected

3. Cannon v. Krakowitch (1959) 54 NJ Super 93, 148 A2d 213.

4. Arizona.—Mayo v Ephrom (1958) 84 Ariz 169, 325 P2d 814.

Florida.—Porter'v Gordon (1950, Fla) 46 So 2d 19; Florida

Power & Light Co. v Watson (1950; Fla) 50 So 2d 543, Seaboard

Air Line R. Co. v Ford (1955, Fla) 92 So 2d 160.

Kentucky.—Beasley v Evans’ Admrx: (1958, Ky) 311 SW2d

195. :

Minnesota.—La Combe v Minneapolis S. R. Co. (1952) 236

Minn 86, 51 NW2d°839; Propper v Chicago, R. I. & P. R. Co. (1952)

237 Minn 386,54 NW2d 840, 35 ALR2d 459 (recognizing rule).

Missouri.—Taylor v St. Louis Public Service Co. eae Mo.)

303 SW2d 608. é’

New Hampshire. _Smith + v Boston & M. R. Co. (1937) 88 NH

436, 191 A 833.

New Jersey.—Klein.v Millside Farms, Inc. (1951) 8 NJ 240, 84

A2d 705; Kress v Newark (1952) 8 NJ 562, 86 A2d 185; Yormack v

Farmers’ Co-op Asso. (1951) 11 NJ Super 416, 78 A2d 421; Wax v

Altshuler (1952) 22 NJ Super 229, 91 A2d 768; Rommell v United -

States Steel Corp. (1961) 66 NJ Super 30, 168 A2d 437 ; Rafferty v

Public Service Intersate Transp. Co. (1934) 13 NJ Misc 80, 177 A

357.

Rhode Island.—Mangigian v Toolin (1950) 77 RI 51, 73 A2d 41.

Wisconsin.—Graff v Hartford Acci & IndemsCo. (1950) 258

Wis 22, 44 NW2d 565.

~—a

thereby. * It has been held, however, that in such case an

appellate court, in remanding the case for a new trial, will

not disturb an order of. the trial court limiting the retrial

~ to the issue of damages where the defendant does not inter-

pose any objection thereto or does not raise the _— in

the appellate proceeding.®

While the propriety of a separate trial of the issue of

- damages may be affected, in some degree, by the nature

of the tort om which the action is based,’ no distinction

appears to have been made, in the application of the rules

and provisions discussed herein, in respect of the nature

of the tort generally. It has been expressly held that there

is no distinction, i in this connection, between an action for a

personal injury and other actions.°

Separability and independence of issues.

To warrant the limitation of the new trial to the issue

- of damages, it must appear, in addition to the other require-

ments,* that such issue is entirely separate and distinct from

5. Kentucky.—Louisville & N. R. Co. v Mattingly (1958, Ky)

318 SW2d 84. *

Minnesota.—La Combe v Shaina S. R Co. (1952) 236

Minn 86, 51 NW2d 839, infra, § 14; Propper v Chicago, R. 1. &

P. R. Co. (1952) 237 Minn 386, 54 NW2d 840, 35 ALR2d 459. °

New Mexico.—Baros v Kazmierczwk (1961) 68 NM 421, 362

P2d 798.

Rhode I sland.—Mangigian v Toolin (1950) 77 RI 51, 73 A2d 41.°

Wisconsin.—See Graff v Hartford Acci & Indemn. Co. (1950)

258 Wis 22, 44 NW2d 565.

6. Westover v Chicago, M. S. P. & P. R. Co. (1936) 197 Minn

194, 266 NW 741, 267 NW 427.

7. See cases involving particular torts.

&. Tumelty v Peerless Stages (1929) 96 Cal App 530, 274 P 430.

9. For requirements generally.

. aes tte

. shin “4 — — —— —_ =

FO nr : Sia stati yan TE = — > : —

: n

that of the liability of the defendant.’ The requisite sepa-

rateness and independence were held. to exist so as to

warrant the limitation, under the circumstances involved

in the cases cited hereunder; but in other cases a contrary

_ conclusion has been reached.

The Court in the case of Korbut v. Keystone Shipping,

Co., 380 F.2d 352 (1967) in treating with a jury’s verdict -

on the amount of damages stated at page 354:

‘It is equally clear that the District Court substi-

i tuted its judgment for that of the jury’s. That it is

a violation of the Seventh Amendment to the Consti-

tution of the United States for a court to so invade

the province of a jury is so fundamental that it need

not be supported by citation. -

In approving the decision of the Trial Court, the Court

below. has established a principle of law which constitutes

a radical departure from uniform and well established law.

The decision by the Court below ‘is in conflict with ‘its

own holding in the case of Caskey v. Village of ‘Wayland,

375 F.2d 1004 (1967), wherein the Court below stated at

page 1007

atk nei should not be ordered unless there

has been ‘an abuse of discretion’ and the verdict ‘is -

so high that it would be a denial of justice to permit

it to stand.’ Dagnello v. Long. Is. R.R. Co,, supra,

289 F.2d at 806. Accord, Diapulse Corp. of America

v. Birtcher Corp., 362 F.2d 736 Gs Cir.) cert. dis-

10. United States —Norfolk Southern R. Co. v Ferebee (1915)

238 US 269, 59 L ed 1303, 35 S Ct 781; Schuerholz v Roach

(1932, CA4 Va) 58 F2d 32, cert den 287 US 623, 77L ed 541,

53 S Ct 78; May Dept. Stores Co. v Bell (1932, CA8 Mo) 61 F2d

830, 32 NCCA 536; Atlantic Coast Line R. Co. v Bennett (1958,

CA4 SC) 251. F2d 934; Darbrow v McDade (195@ CA3 Pa) 255 |

F2d 610; Bass v Dehner (1937, DC NM) 21 F Supp 567; Tomp-

. kins v Pilots Asso. for Bay & River Delaware (1940, DC Pa) 32

F —_ 439; Yates v Dann (1951, DC Del) 11 FRD 386.

Cot oN

missed, 385 U.S. 801, 87 S. Ct..9, 17 L. Ed. 2d 9

(1966); La France v. New York, N.H. & H. RR. Co.,

292 F.2d 649, 650° (2d Cir. 1961) (verdict will not .

be modified unless ‘fantastic’) ; Wooley v. Great Atl.

& Pac. Tea Co., 281 F.2d 78, 80 (3d Cir. 1960)

(verdict not to be disturbed unless ‘80 grossly exces-

sive as to shock the judicial conscience’ so that it

would be a ‘manifest abuse of discretion’ not to order .

a new trial),’’— -

There was no finding by the Trial Court and the record

establishes the fact that nothing therein contained justifies

a conclusion that the verdict of $25,000 for a man who suf-

fered injury to his knee which required surgical interven- °

tion to the extent of fifty odd sutures, resulting in a partial

permanent disability of the knee, was so grossly excessive

as to shock the judicial conscience or that the verdict was

so high that it would be a denial of justice to permit it to

stand, |

The record will demonstrate that the verdict rather than

being high was fair and reasonable and not the result of

any undue emotion on the part of the jury.

This is clearly a case wherein the Court below approved

the erroneous substitution of the Trial Court’s evaluation

of the damages for ‘the evaluation placed by the jury.

The verdict in the second trial in the amount of $1,800

constitutes proof that it was a compromise on the issue~of

negligence which compromise was a foreseeable event, as

pointed dut in Caskey v. Village of Wayland, supra.

The question of contributory negligence does not justify

' nor constitute a basis for retrial of the question of liability.

: Cromling v. Pittsburgh and Lake Erie R.R. Co., 327 F.2d

142 (1963).

The legal support for this position i is that all of the au-

thorities are in accord that a Judge may not substitute .

his — for that of ajury. McAllister v. U. 9. A., 348

ele wees ee ee - ~ --

“a

U: 8. 19, 75 S. Ct. 6. A factual issue, once determined,

by a jury as in the instant case may not be ordered

relitigated. .

The plaintiff has been eee his day in Court on the

merits in that a jury verdict at twice the amount of the

valuation by the trial judge “was held to constitute a ca-

-pricious and arbitrary verdict but ‘a subsequent verdict in:

the sum of $1,800 was not. Such a decision éstablishes that

a verdict which happens to be twice that of a court’s eval-.

uation is wrong, as_a matter of law, but on the contrary a

- verdict for 1/10th of the Court’s evaluation is not, and

should be permitted to stand.

' Assuming, for the sake of argument, that the Court

below was correct in holding that the jury’s finding that

_the appellant was entitled to twice as much as he thought

he should receive, justified the Court’s setting aside the

verdict and ordering ‘a new trial.

The plaintiff was, nevertheless, entitled to a direction of

a verdict in‘his favor on the question of liability alone—

which issue had already been decided upon the: first trial

of this case on the merits in the court below; and/or ‘after | °

the second trial, in the very least, the plaintiff was entitled

to an additur—assuming the trial judge’s evaluation on the

basis of his conditional remittur to have been correct.

It is respectfully submitted that the court below com-

mitted reversible error in ordering a new trial of the ques-

tion of liability, which proved to result in substantial loss

to the plaintiff’s prejudice.

The Court below in the second trial was in error.in re-

fusing appellant’s request for a directed verdict on the

question of liability in the light of the fact that the ques-

tion of liability had been determined and constituted res

adjudicata as to the facts of the case on the merits.

The Court, in the first trial, committed further reversi-

ble error in ordering the question ° of contributory negli-

gence to be re-tried in view of the fact that the record

is devoid of a single fact which supported the charge of

contributory negligence. The substance of all of the tes-

» timony was that the plaintiff, aware of the dangerous

condition, exercised the utmost care of which he was capa-

ble in going about a slippery and dangerous and encum-

bered deck and in spite of his care, his foot slipped into

an’ encumberance which tripped him and caused him to

fall and suffer -the grievous injuries, all of which was.

proven without any substantial evidence to the contrary.

The opinion by this Honorabic Court as it now stands

constitutes the establishment of a doctrine that a J udge’ ~

evaluation of the damages contrary to the unanimous opin-

ion of twelve jurors ‘constitutes a legal basis for. order-

ing a. afew trial, not only as to the question of damages

but, as to the question of liability already unquestionably

and properly determined along with the question of con-

tributory negligence, as to which there was no proof in the

first trial, and therefore no basis for reopening the door on

the subject once having been tried and final judgment

having been rendered therein. ne -

Conclusion

Petitioner respectfully submits that the record would

justify this Honorable Court in directing the entry of.

judgment on the verdict of the jury in the -first trial as

authorized:by § 2106 of U.S.C. 28, and as enunciated by this

Court in the case of Neely v. Martin K. Eby, Construction

Co., 386 U.S. 317, 87 S. Ct. 1072 (1967), where the — |

stated at page 1076, 1077:

““Section 2106 of Title 28 .provides pan

‘The Supreme Court or any other court of appellate

- jurisdiction may affirm, modify, vacate, set aside or

reverse any judgment, decree, or order of a court

eee ee are . .

eee ti li tan i lie lis PNET TTT NII Dea em

31 |

mand the cause and direct the entry of-such appropri- :

ate judgment, decree, or order, or require such

further proceedings to be had as may be dust under

’ the circumstances.’

See Bryan v. United Siates; 338 U.S. 552, 70 S. Ct.

317, 94 L. Ed. 335.”

Under. all of the circumstances, it. is respectfully sub-

mitted that the question, as to the extent of a jury’s prov-

ince and the limits of the Court’s authority on-the question

of the amount of damages merits consideration, review and

reassessment by this honorable. Court; otherwise; if the

_ present enunciation by the Court below is permitted to stand,

it would constitute a denial to a litigant of a jury trial on

the question of damages, for the Court below, in substance,

has affirmed the holding by the Trial Court that the mere

fact that he differs with the jury is sufficient legal and

factual. basis ‘for setting aside the entire verdict, including

that based on liability, irrespective of- the fact that the

injuries and permanent disability is so serious as to more

than justify the jury’s verdict and is not of such an amount |

as to shock the judicial conscience of the Court.

The holding in the above entitled matter was that, if a

_ jury’s verdict is twice that of the Court’s evaluation ti is a

sufficient basis for setting aside the verdict; but, if the

-.verdict qmounts to an inconsequential fraction of the

~ Court’s evaluation, that then it is en alright for the —

verdict to stand.

The injustice of this situation is self apparent and needs

no argument. and affects the rights of every personal injury

victim, and the question merits consideration, by this,

Honorable Court.

Respectfully submitted,

_ Jacos Rassner,

Attorney for Petitioner.

| APPENDIX |

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

_ For rue Seconp Circuir ~

___. No, 268—September Term; 1967.

(Argued January 15, 1968 Decided January 18, 1968.)

i Docket No. 31866 |

~’

FRrep CosENTINO, :

: Plaintiff-A ppellant,

. against |

Tae Rowan NETHERLANDS STEAMSHIP CoMPANY,

Defendant-Appellee..

Before: . 7

Lumsarp, Chief J udge,

Warencax and FEINBERG, Circuit J wdgée.

Appeal by plaintiff from a judgment of the United States

District Court for the Eastern District of New York, John

R. Bartels, J., entered February 17, 1967, on a jury verdict

of $1800 in favor of plaintiff in personal i or action.

Affirmed.

JacoB Rassner, New York, N. 'Y,, for plaintiff-appellant.

Wuuum F. McNoutry, New York, N..Y. (Daniel J.

Coughlin, New York, N. Y., on the brief), for de-

_fendant-appellee. ,

Opinion of United States Court of Appeals

PER CuRIAM: )

ne This appeal by plaintiff from a judgment entered on a

\ jury verdict of $1800 in his favor following the second

‘trial of his action in the Eastern District presents the

-question whether Judge Dooling, who presided at the first

_ trial, abused his discretion in ordering that the entire ac-

tion be retired ‘unless the plaintiff agreed to remit a por- .

tion-of the $25,000 jury verdict awarded to plaintiff in that

first trial, We hold that there was no abuse of discretion

and affirm the judgment. |

. Plaintiff brought. suit for mnanel injuries suffered

while employed as a longshoreman aboard deéfendant’s

ship. The original trial before Judge Dooling and a jury

in the District Court for the Eastern District of New York

resulted in a jury verdict of $25,000 for the plaintiff. De-

fendant moved for a new trial, and Judge Dooling ordered

that the verdict be set aside and a new trial granted unless

plaintiff would remit $12,000 of the $25,000 verdict. Plain-

tiff declined to remit the “$12,000, and the case was then

retried before Judge Bartel8 and a jury, resulting in a

jury verdict of $1800 for the plaintiff. From the judgment.

entered on this verdict, the plaintiff appeals, claiming that

there was no basis for J udge Dooling to impose the remit-’

titur after the first trial and that Judge Dooling erred

_in ordering a new trial of the entire action rather than only

- on the issue of damages. !

Whether a verdict is excessive ~ whether-a new trial

should be granted pursuant to a motion under Rule .59

of the Federal Rules of Civil Procedure are questions ad- -

dressed to the discretion of the trial judge. Considering

the evidence on the issue of damages, we find no abuse of

discretion by Judge Dooling: in ordering that the action

be retried unless the plaintiff — to remit hve 000 of

” jury ’s verdict.

— Opinion if United States Court of Appeals

“Where the district court has Sbeitibkiondl that the verdict

is so excessive as to require a new trial, the question

whether the retrial should relate to the issue of liability

as well as to the issue of damages is likewise addressed to

the discretion gf the trial judge. In the present case,

where the doctrine of comparative negligence is involved _

and the amount of plaintiff’s damages is related to the

issue of plaintiff’s contributory negligence, it seems entirely

proper to retry the entire action and not to limit the issue

on retrial to the amount of plaintiff’s damages.’ The. ap-

pellant has cited no precedent to the contrary. Again,

‘we find that there was no. abuse of discretion $3 J udge

Dooling. ‘oan :

The judgment is affirmed.

e .

Judgment of Affirmence

- FOR THE

" Sucomp Cmourr

At a Stated Term of thé United States Court of Media

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the eighteenth day _

of January one thousand nine hundred and sis tak

Present: |

Hon. J. Epwarp Lumsarp, )

, - Chief Judge,

“6 "Wirrep Femserc, 3

_. Cireuit Judges.

Frep Cosentmo, hee

er :

v. :

Tur Rovan N ETHERLANDS Sreamsnie Company (Konink-

LIJKE - NEDERLANSCHE SroomBoors MaarscHarrts N. Wale

THE — Houanp, a eae

_Defendant-Appellant. =.

ra’

Appeal from ‘the. United States District Court ii the .

Eastern District of New York. .

‘This cause came on to be heard on the transcript of

record. from the United States District Court for the

Hastern District of New York, and was argued by counsel.

On Consmperation WHEzeoF, it is now hereby ordered, |

adjudged, and decreed that the order and judgment of

said District Court be and they hereby are affirmed. —

A. Danie. Fvsano,

ee Clerk.

, * . 96 :

Order Denying Petition for Hearing

UNITED STATES COURT OF APPEALS:

Szconp Cmovrr

No. 31866

Frep Cosentino, . .

Plaintiff-Appellant, -

Vv. =

Tae Rora, Nernertansvs Sreamsuie Company ‘(Kowinx-

Lizke Nepertanscue Sroomsoors Maarscuapris N. V.),

Tue Hacve, Hot.ann,:

Defendant-Appellant.

—_ *

—

- A petition for a rehearing having been filed herein by

counsel for the appellant Fred Cosentino,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

J. Epwarp Lumepanrp,

Srerry R. Warerman,

Wurrep Fesens,

Circuit Judges.

12 March 1968 .

<<)

——

Order, En Banc, Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS .

Szconp Crovir

No. 31866

F rep Cosentix0,

' ‘Plaintiff-Appellant,

v. :

Tue Royvat Neruertanvs. Sreamsure Company. (Konrx-

LiJKE NeperLanscHe Sroomsoots Maarscuarris N. V.),

’ Tue Hacvuz, Hottanp, ~

Defendant-Appellant.

a Ww

A petition for a rehearing containing a suggestion that

the action be reheard en banc having been filed herein by

counsel for the appellant Fred Cosentino and no active

circuit judge having requested that a vote be taken on said

suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

J. Epwarp Lumsarp,

Chief Judge.

March 12, 1968

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.