Petition for a Writ of Certiorari — Hearst Consolidated Publications, Inc. v. Stevenson

SEP i 7 1954

HAROLD B. WHLLEY, Clerk

IN THE

Supreme Court of the United States

Ocroser Term, A. D. 1954

No. 352

—————

Hearst Consonmatep Pusuications, Inc., Petitioner

v.

Rosert R. Stevenson, Respondent

Sel

PETITION FOR WRIT OF CERTIORARI

——

Wuuiam J. Dempsey

Attorney for Petitioner

Dempsey AND KopLovitz

938 Bowen Building

Washington 5, D. C.

McCavLey AND HENRY

959 Eighth Ave.

New York, N. Y.

Of Counsel

|

Press or Brron S. Anpams, Wasnrncrow, D.C.

Page

OCpisdoms DelOW 26. ieee s ese ie ecvictivcetveeds 1

SIONL'. onan duc anys ackeniciceds spans Se bacmeenenel 1

Question Presented for Review ............seeeeees 2

eS POPE E CORTE Te OPO eT 2

Reasons for Allowance of Writ ..............eeee0s 4

PONE A kalild) ta vomacecass cocvnwbbs cee ahceteues 19

Beers Sees ee TPO TTT eee on ee Te 20

CITATIONS

Casks : os

Affolder v. New York, Chicago and St. Louis Rail-

Pee 6, WEP Tis Oe a 6 anc cao db thee vakenrnyan 13

Bishop v. New York Times Company, 194 App. Div.

SE RO SEN TEE as cacccrehads uh kehuawaerss

Boyle v. Bond, 187 F(2d) 362 .............eeeeees 6

Bucher v. Krause, 200 F(2d) 576 ...............6. 6, 10

Cobb v. Lepisto, 6 F(2d) 128 ........... ee ee eeees 5

ni v. Bobbs-Merrul Company, 182 App. Div.

Oe 5 ide vDeeenk bhhe deuce cauebeaeaeeeeeeniiee

— Gas and Oil Company v. Checketts, 187 F (2d)

BEE... axewelens Ghdaice viens sea bwheiey scons vaaees

Crave v. Bennett, 77 App. Div. 102 ................ 18

Evans v. Star Company, 216 App. Div. 736, affirmed

BOR TOE Ge 6 istic dice ds cock ce htdesgewetencac es 18

Fleetwood Foundation, Inc. v. Daily Mirror, Inc.,

Oe WER OE hid a 40409 4 6040ke essa cemedas rae 19

Fleetwood Foundation, Inc. v. Daily Mirror, Inc.,

ee Ss SD bs sk dare ko enc cesentekaees 19

Foerster v. Ridder, 275 App. Div. 665 ............. 18

Foley v. Capone Electrical Company, Inc., 194

PLE GE: sencwdvkes oheee be bbs ds baa eases eee 6

Gideon v. Daily Mirror, Inc., 263 App. Div. 807..... 19

Gideon v. Daily Mirror, Inc., 289 NY 767 .......... 19

McMahon v. ae York News, 51 App. Div. 448 .... 19

wet v. Maryland Casualty Company, 40 F (2d)

eee eee eee ewe ee eeeereereeeeeeeeeeeeereeeeeeeese

ii Index Continued

Mogle v. Franz, 267 App. Div. 423 ................ 19

Sebring T rucking Company v. White, 187 F(2d) 486 6

Smith v. Welch, 189 F(2d) 832 .................. 6

Southern Pacific Company v. Guthrie, 180 F(2d)

295; on rehearing, 186 F(2d) 926............. 5, 7, 15

Stevenson v. News Syndicate Company, Inc., 302

RR ees pene ee ee ee eee 18

St. Louis Southwestern Railway Company v. Fer-

Se EE UD 655 8555 Denes cee cceecicess 6, 13

Sunray Ow Corporation v. Allbritton, 187 F(2d)

475; on rehearing, 188 F(2d) 751............... 6, 16

Trowbridge. v. Abrasive Company of Philadelphia,

SE OE abiniecsichinunihsbiaceeeesepsian 6, 10

Van Siclen v. Bush, 254 App. Div. 851, affirmed, 279

i ii eeh ncn eakewhaes s bbh saebecheweude 18

Virginian Railway Company v. Armentrout, 166

SE ME caere be euwsdeueccehecsubaseeheees due 5,6

Statutes:

Title 28, United States Code, Section 2106

Appendix p. 14

TEXTBOOK

6 Moore, Federal Practice § 59.08(6) (2nd Ed. 1953) 6

IN THE

Supreme Court of the Anited States

Ocroser Term, A. D. 1954

oe

No.

Hearst Consotipatep Pustications, Inc., Petitioner

v.

Rosert R. Stevenson, Respondent

PETITION FOR WRIT OF CERTIORARI

Your Petitioner prays that a Writ of Certiorari issue

to review the judgment of the United States Court of

Appeals for the Second Circuit which affirmed a judgment

of the United States District Court for the Southern Dis-

trict of New York for $75,000 in an action for damages

caused by libel.

OPINIONS BELOW

The opinion of the Court below is unreported. It is

reprinted in the Appendix to this Petition. The opinion of

the District Court on Petitioner’s motion for new trial is

printed on page 445 of ‘‘ Appendix to Appellant’s Brief”’

which was the printed record in the Court below and which

is being filed with the instant Petition.

JURISDICTION

The judgment of the Court below was rendered July 27,

i954. The jurisdiction of this Court is invoked under Title

28 United States Code 1254(1).

2

QUESTION PRESENTED FOR REVIEW

Whether the limited review which the Court below gave

to the District Court’s action denying Petitioner’s motion

for new trial deprived Petitioner of its right to have an

appellate review of the errors assigned, and was inconsist-

ent with the proper discharge of the Court’s duty under

Title 28, U.S.C., Section 2106.

STATEMENT

The basis of federal jurisdiction in the District Court

was diversity of citizenship, the Respondent being a citizen

of the state of New York and Petitioner being a Delaware

corporation which publishes a newspaper in New York,

New York. The litigation was instituted by an action for

libel based on the publication in Petitioner’s newspaper

of an article recounting certain charges made against

Respondent by his wife. The charges had been made by

Respondent’s wife in support of her motion for temporary

alimony, counsel fee and a bill of particulars in a separation

suit which she had served but not yet filed against Respond-

ent in the New York Supreme Court.

By pre-trial order the District Court formulated the

issue to be tried as follows:

‘‘To what extent was Plaintiff damaged by the pub-

lication of the article complained of? These issues

include matters relevant and material to Plaintiff’s

claim for punitive damages.’’

During the trial numerous objections were made by Peti-

tioner and exceptions taken to rulings of the Trial Judge.

The Jury returned a verdict as follows: $1,000 general

damages, $24,000 special damages, and $50,000 punitive

damages.

Petitioner filed a motion for new trial on numerous

grounds including the excessiveness of the verdict for

special and punitive damages. This aspect of the motion

for new trial was based upon the contention that the evi-

3

dence adduced at the trial could not as a matter of law

support any verdict for special or punitive damages, and

in any event the amounts awarded were grossly excessive

in the circumstances of this case.

The District Court denied the motion for new trial, and

in its appeal to the Court below, Petitioner assigned as

error, in addition to numerous others, the abuse of discre-

tion committed by the District Court in denying Petition-

er’s motion for new trial because of the excessiveness of

the verdict for special and punitive damages.

The Court below considered, and in its opinion disposed

of all assignments of error, except the assignment of error

that the denial of Petitioner’s motion for new trial on the

grounds of excessiveness of the judgment was an abuse of

the discretion of the Trial Judge, in the light of the facts

evidenced in the record pertaining to the issue of special

and punitive damages.

The view of the Court below was that regardless of the

merits of Petitioner’s contention that the evidence in the

record required a ruling that the judgment for special and

punitive damages was excessive, the Court below was

powerless to grant Petitioner any relief from the judgment.

The Court stated that it had exhausted its ‘‘limited power

of review’’ when it had considered whether certain factors,

not present in the instant case, had entered into the compu-

tation of the amount of damages awarded. In so restrict-

ing the scope of its appellate review, the Court below stated

that it was following its long established practice

‘‘not to enter upon a consideration of whether the

trial judge should have so appraised the facts evidenced

in the record as requiring an exercise of his discre-

tionary power to grant a new t+tal either with or with-

out a conditional remittitur be, plaintiff of part of the

verdict’’.

(Opinion pp. 12-13 of Appendix, emphasis supplied)

An assignment of error that the evidence adduced at

the trial bearing upon the issue of-special and punitive

a

4

damages could not as a matter of law support the amount

of the judgment was held by the Court below as falling out-

side the scope of its permissible review as a federal appel-

late court.

REASONS FOR ALLOWANCE OF WRIT

1. The decision of the Court below, with respect to the

limitations on its power to determine whether the District

Court abused its discretion in denying a new trial on the

grounds of excessive damages, is in conflict with decisions

of Courts of Appeals in other Circuits on the same matter.

The effect of this self-imposed limitation by the Court

below was to deprive Petitioner of any opportunity to cor-

rect the abuse of diseretion committed by the Trial Judge

in denying Petitioner’s motion for new trial. In other

Circuits litigants are afforded such an opportunity. The

existence of a conflict among the Circuits on so important

a matter calls for the exercise by this Court of its appellate

jurisdiction to resolve the conflict so that litigants may

receive justice uniformly throughout the federal judicial

system.

The Court below cited earlier decisions of that Court to

support its ‘‘long established practice’’. The earliest of

these cases is Miller v. Maryland Casualty Co., 2 Cir., 40 F.

(2d) 463, in which Judge Learned Hand speaking for the

Court in 1930 said at page 464:

‘‘The practice of this court has been uniform to refuse

to consider any orders denying new trials, with the

exception of Harrison v. U. S. (C.C.A.) 7 F. (2d) 259,

which followed Mattox v. U. S., supra. New York &

T. S. S. Co. v. Anderson (C.C.A.) 50 F. 462; Denison

v. Shawmut Mining Co. (C.C.A.) 159 F. 102; Reader

v. Haggin (C.C.A.) 160 F. 909; Worden v. Kenny

(C.C.A.) 239 F. 131; Ford Motor Co. v. Hotel Wood-

ward Co. (C.C.A.) 271 F. 625; Harison v. U. S.

(C.C.A.) 7 F. (2d) 259. The books are full of similar

eases in other circuits too numerous to cite, in many

of which the reason given was that the order was

5

discretionary, and which apparently implied that there

might be a review if the aggrieved party could show

that the discretion had been abused. Acting upon this,

in several cases orders refusing new trials because of

the amount of the verdict have been in fact reversed,

though apparently in ignorance of the limitations in

the dictum in Southern Ry. Co. v. Bennett. And so

the gloss has become the supposed principle, and there

has undoubtedly grown up a notion that in general

there may be extreme cases where this is a good ground

for appeal. However, so far as we have found, all

the actual decisions except one, when this has been

done, are either where the jury gave nominal damages,

that is, where they did not attempt to appraise the

plaintiff’s loss at all; where their verdict was less

than the amount of the loss which the defendant did

not dispute; or where damages were not involved.

In the first class is Pugh v. Bluff City Excursion Co.,

177 F. 399 (C.C.A. 6) In the second are Glenwood

Irrigation Co. v. Vallery, 248 F. 483 (C.C.A. 8) ; United

Press Associations v. National Newspapers Associa-

tion, 254 F. 284 (C.C.A. 8); and Stetson v. Stindt, 279

F. 209 (C.C.A. 3). In the third are James v. Evans,

149 F. 136 (C.C.A. 3), and Frye v. Lyon, 299 F. 926

(App. D. C.). All these are within the limits suggested

in Southern Ry. Co. v. Bennett, and the exception,

Cobb v. Lepisto (C.C.A.) 6 F. (2d) 128 (C.C.A. 9) so

far as we ean find, stands alone.”’

Although Cobb v. Lepisto may have been the only deci-

sion in conflict with Miller v. Maryland Casualty Co. in

1930, in the intervening years other Circuit Courts of

Appeals have followed Cobb v. Lepisto, with the conse-

' quence that at the present time there is a clear conflict

among the Circuit Courts of Appeals on the matter. Deci-

sions of other Courts of Appeals in conflict with the

decision of the Court below are:

Virginian Ry. v. Armentrout, 4 Cir., 166 F. (2d) 400;

Southern Pac. Co. v. Guthrie, 9 Cir., 180 F. (2d) 295,

on rehearing 186 F. (2d) 926;

a

6

Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir.,

190 F. (2d) 825;

Bucher v. Krause, 7 Cir., 200 F. (2d) 576.

Brief quotations from the opinions of the Courts in cases

just cited will point up the conflict in their decisions and

the decision of the Court below. Thus, in Virginian Ry.

Co. v. Armentrout, supra, Judge Parker, speaking for the

Court, said at pages 407-8:

‘*And quite apart from the error in the charge, we

think the trial judge erred in refusing to set aside the

verdict as excessive and grant a new trial. Ordinarily,

of course, the amount of damages is for the jury, and

whether a verdict should be set aside as excessive is

a matter resting in the discretion of the trial judge.

This, however, is not an arbitrary but a sound discre-

tion, to be exercised in the light of the record in the

ease and within the limits prescribed by reason and

experience; and where a verdict is so excessive that it

cannot be justified by anything in the record or of

which the court can take judicial notice, it is the duty

of the judge to set it aside. Failure to do so is an

1In addition to the direct conflict between the decision of the

Court below and decisions of the Courts of Appeals for the 3rd, 4th,

7th and 9th Circuits, herein pointed out, reference to the decisions

of the Courts of Appeals for the remaining Circuits reveals what

appears to be a straddling position, since they cannot be definitely

classified as adopting either side of the conflict. See Foley v.

Capone Electrical Co., Inc., 1 Cir., 194 F (2d) 605; Sunray Oil

Corp. v. Allbritton, 5 Cir., 187 F (2d) 475, on rehearing, 188 F

(2d) 751; Sebring Trucking Co. v. White, 6 Cir., 187 F (2d) 486;

St. Louis Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F (2d)

949; Smith v. Welch, 10 Cir., 189 F (2d) 832. The position of

the Court of Appeals for the District of Columbia is clearly in con-

flict with the decision of the Court below. Boyle v. Bond, 187 F.

(2d) 362. An excellent review of the conflicts in the opinions of

the Courts of Appeals may be found in 6 Moore, Federal Practice

§ 59.08(6), pp. 3834-41 (2nd Ed. 1953). The author at p. 3829,

supra, regards the better rule to be that the record should be re-

viewed on appeal and the lower court reversed if abuse of discre-

tion is found in a denial of a new trial for excessiveness or inade-

quacy of damages.

—

7

abuse of discretion, analogous to error of law, and as

such reviewable on appeal.’’

* * _ * * * *

‘*The power of this court to reverse the trial court for

failure to exercise the power, where such failure, as

here, amounts to an abuse of discretion, is likewise

clear. It is true that under section 22 of the Judiciary

Act of 1789, 28 U.S.C.A. § 879, there may be no reversal

on writ of error for any error in fact; and this rule

has been frequently applied where reversal is sought

because damages are excessive or inadequate. Fair-

mont Glass Works v. Cub Fork Coal Co., 287 U.S. 474,

53 S.Ct. 252, 77 L.Ed. 439. We do not understand

the rule to have application, however, in those excep-

tional circumstances where the verdict is so manifestly

without support in the evidence that failure to set it

aside amounts to an abuse of discretion. In a situation

of that sort, reversal is no more based on ‘error in

fact’ than reversal for refusal to direct a verdict for

insufficiency of evidence. Whether there has been an

abuse of discretion is a question of law in the one case,

just as is the legal sufficiency of the evidence in the

other. An appellate court is not required to place the

seal of its approval upon a judgment vitiated by an

abuse of discretion.’’

In Southern Pacific Co. v. Guthrie? Judge Pope, speaking

for a majority of the Court, said :*

‘‘There is an abundance of authority in the decisions

of the federal courts that in this situation an appellate

court has no power to do anything about such a ver-

dict. The view most commonly expressed is that

stated by Judge Goodrich, for the Court of Appeals

of the Third Circuit, in Seott v. Baltimore & O. R. Co.,

supra, as follows: ‘The members of the Court think

the verdict is too high. But they also feel very clear

that there is nothing the Court can do about it. ***’ ”’

—_

79 Cir. 180 F (2d) 295.

37d. at 304.

—

8

‘¢* * © On the other hand, in Cobb v. Lepisto, 9 Cir.,

6 F. 2d 128, this court remanded a case with directions

to order a new trial unless an excess amount, stated

by this court, were remitted. In Department of Water

& Power of City of Los Angeles v. Anderson, 9 Cir.,

95 F.. 2d 577, while finding the verdict there in question

not to be ‘grossly excessive’, this court stated the rule

of Cobb v. Lepisto to be as follows, 95 F. 2d at page

586: ‘Although it was held in Southern Ry. Co. v.

Montgomery, 5 Cir., 46 F. 2d 990, 991, that a Circuit

Court of Appeals has ‘no jurisdiction to correct a ver-

dict because it is excessive,’ the rule in this court is

that the refusal to grant a new trial is ‘such an abuse

of discretion as is reviewable by this court’ where the

verdict is ‘grossly excessive’’. In Virginian Ry. Co.

v. Armentrout, 166 F. 2d 400, the Court of Appeals

for the Fourth Circuit, reversed the judgment and

ordered a new trial in a personal injury case because

of its determination that the verdict was excessive

notwithstanding the trial judge had denied a motion

for new trial made upon this ground. The court cited

Cobb v. Lepisto, supra, with approval and said: ‘To

the federal trial judge, the law gives ample power

to see that justice is done in causes pending before him;

and the responsibility attendant upon such power is

his in full measure. While according due respect to

the findings of the jury, he should not hesitate to set

aside their verdict and grant a new trial in any case

where the ends of justice so require. * * * ‘The power

of this court to reverse the trial court for failure to ex-

ercise the power, where such failure, as here, amounts

to an abuse of discretion, is likewise clear. * * *

(166 F. 2d 408)’

£615 Cobb v. Lepisto, supra, prior to the decision in Virginian Ry. Co.

v. Armentrout, supra, has been stated to stand alone. See Miller v.

Maryland Casualty Co., 2 Cir. 40 F. 2d 463. Cf. Fairmount Glass Works

v. Cub Fork Coal Co., 287 U.8. 474, footnote 14, page 485, 53 8. Ct. 252,

255, 77 L. Ed. 439. It dealt with a verdict in an action to recover the

value of services rendered, something more readily calculated than the

compensation for pain, suffering, and the like.

‘Southern Railway Co. v. Bennett, supra, and the earlier cases assert-

ing want of power to review the action of the trial court in denying a

new trial on the ground of excessiveness of the verdict, were exp

by Judge Learned Hand in Miller v. Maryland Casualty Co., 2 Cir., 40

4 Ibid.

9

F. 2d 468. The rule is there said to be based upon a procedural difficulty

ly of error did not afford review of the trial

court’s action upon a motion for a new trial, and it was said that the

appeal later provided for was subject to the same limitations. Subse-

tly in Fairmount Glass Works v. Coal Co., 287 U.8. 474, 482, 53 8.

252, 254, 77 L. Ed. 439, the Supreme Court expressly referred to the

decision in Miller v. Maryland, supra, saying: ‘It has been

new trial was not a part. Compare Judge Learned Hand in Miller v.

— iam But ene review

ean no longer rest upon groun e recor ore appel-

it court as boon enlarged to include in the bil of exepions « motion

for a new trial, made either before or after judgment.’ ”’

Speaking only for himself, Judge Pope, went on to say:

“The writer of this opinion thinks that this court

should remand this case with directions to grant a

new trial unless the appellee shall file his consent in

writing to remit from the judgment now entered the

sum of $20,000 together with all interest, if any, which

may have accrued upon the amount so remitted.’”

* * * * * *

‘6 * * © He is of the opinion that a disclaimer of appel-

late power such as that stated in Scott v. Baltimore &

O. R. Co., supra, is a manifestation of a momentum

generated in the earlier cases, and not yet arrested

simply because the courts expressing this doctrine

have failed to note that the procedural obstacles which

originally prevented apellate review no longer exist,

as was stated in the Fairmount Glass Works case,

supra, note 15.%° In his opinion the doctrine of im-

potence expressed in the cases mentioned is due for

a general overhauling and he thinks that the decision

of Judge Parker in Virginian Railway Co. v. Armen-

trout, supra, points to the reasons why this court

should not abdicate the power which it has previously

asserted in Cobb v. Lepisto, supra, and Department

of Water & Power v. Anderson, supra.'’”*

‘16 Rule 75 of the Federal Rules of Civil Procedure relating to the

record on appeal, is even more inclusive than the bill of ons re-

ferred to in the Fairmount Glass Works case. In the field of criminal

appeals the Supreme Court in Griffin v. United States, 336 U.S. 704, 69

8. Ct. 814, noted no procedural diffieulty in reviewing the trial court’s

57d. at 305.

® Ibid.

10

action upon a motion for a new trial notwithstanding the earlier dis.

elaimers of authority in cases such as Blitz v. U. 8., 153 U.S. 308, 14

8. Ct. 924, 38 L. Ed. 725. Cf. National Bank of Commerce v. U. 8., 9

Cir., 224 F. 679, 683. The rational explanation is to be found in Rale

39(b), Federal Rules Criminal Procedure, 18 U.S.C.A. incorporating the

rules and practice governing civil appeals.’’

‘*17 Cf. Pacifie Greyhound Lines v. Rumeh, 9 Cir., 1949, 178 F 94

652, in which this court considered at length the question whether the

verdicts there were excessive. ’’

It is significant that after its decision in Southern Pac. Co.

v. Guthrie, supra, the Ninth Circuit Court of Appeals

granted the appellant in that case a rehearing on the ques-

tion of ‘‘whether the damages are excessive, and if s0,

what the action of the Court should be.’’ 186 F. (2d) 926,

In Trowbridge v. Abrasive Company of Philadelphia, the

Court speaking through Judge Staley said:

‘*We need not decide, however, whether the verdict is

excessive, for this court will not substitute its judg-

ment for that of the jury or the trial court. The ques-

tion of excessiveness of a verdict is primarily one for

the trial court; where, however, the verdict is grossly

excessive, the denial by the trial court of a motion for

a new trial constitutes such an abuse of discretion that

this court will remand the cause for a new trial.!° 4

careful study of the evidence of damages in the record

has failed to convince us that the verdict was so grossly

excessive as to justify reversal on this ground.’ (Em-

phasis supplied)

£410 v. In M J

2a 304; Virginian iy. Oo. Armentrost, 4 Cir, i948, 186 F.2d 400,

Kos v. Baltimore & O. R. Co., 6 Cir., 1928, 28 F. 2d 872; Spero-Nelson

v. Brown, 6 Cir., 1949, 175 F. 2d 86; Southern Pac. Co. v. Guthrie, 9

Cir., 1951, 186 F. 24 926. This rule is in accord with the implication

of the Supreme Court in Affolder v. New York, C. & St. L. R. Co., 1950,

339 U.S. 96, 101, 70 8. Ct. 509, 94 L. Ed. 683.”’

In Bucher v. Krause, the Ninth Cireuit Court of Appeals,

through Judge Lindley, reviewed the precise question pre-

sented by this Petition, as follows:

73 Cir., 190 F. (2d) 825.

8 Td. at 830.

®9 Cir., 200 F. (2d) 576.

a

11

‘‘Specifically, we are interested here in the extent, if

any, to which the exercise of this discretion is review-

able by an appellate court. An old procedural impedi-

ment forbidding review of an order denying a motion

for new trial no longer bars judicial review. See Fair-

mount Glass Works v. Cub Fork Coal Co., 287 U.S.

474, 489, 53 S.Ct. 252, 77 L.Ed. 439; Wetherbee v.

Elgin, Joliet & Eastern Ry. Co., supra; Rule 75, Fed.

Rules of Civ. Proe. 28 U.S.C. However, the under-

lying reason for the former controlling rule was not

always clearly stated, with the result that generaliza-

tions to the effect that appellate courts may never

review an order denying a motion for new trial were

contained in many opinions. See Chicago & N. W. Ry.

Co. v. Green, 8 Cir., 164 F. 2d 55; Chicago N. W. Ry.

Co. v. Kelly, 8 Cir., 74 F. 2d 31.

‘Indeed, there are still some comparatively recent de-

cisions denying the right to review the exercise of the

trial court’s discretion. Scott v. Baltimore & O. R. Co.,

3 Cir., 151 F. 2d 61; McCoy v. Cate, 1 Cir., 117 F. 2d

194. Some of these cases appear to reach the rather

astounding conclusion that there is no power to review

an alleged abuse of the lower court’s discretion. Ree-

ognizing the emasculatory effect of such a doctrine

on their reviewing function, some courts have resorted

to ‘accepted’ bases of review. Thus, in Karl W. Baker

& Co. v. Lagaly, 10 Cir., 144 F. 2d 344, 154 A.L.R.

1098 and Snowden v. Matthews, 10 Cir., 160 F. 2d 130,

the court indicated that passion and prejudice on the

part of the jury could, in the case of an excessive

verdict, be inferred from the enormity of the sum

awarded. This court has rejected such a rationale.

See Wetherbee v. Elgin, Joliet and Eastern Ry. Co.,

supra and cases there cited. Another inventive proc-

ess offered to justify review is found in Sinclair Refin-

ing Co. v. Tompkins, 5 Cir., 117 F. 2d 596, wherein it

was held that any large verdict will always impel a

eareful search of the record for prejudicial error. Such

an approach we think is misleading, for the existence

or non-existence of procedural error in the trial of a

cause should seldom be decisive of the propriety of the

size of the verdict.

12

‘*There are, however, many decisions of relativel

recent date, with which we find ourselves in acco

which meet head on the problem at hand and conclude

that a court of review may, with propriety, ascertain

whether the trial court abused its discretion in failing

to grant a new trial because of an excessive verdict.

Cobb v. Lepisto, 9 Cir., 6 F. 2d 128; Southern Pac. Co.

v. Guthrie, 9 Cir., 180 F. 2d 295, on rehearing, 9 Cir.,

186 F. 2d 926, certiorari denied 341 U.S. 904, 71 S.Ct.

614, 95 L. Ed. 1343; Covey Gas & Oil Co. v. Checketts,

9 Cir., 187 F. 2d 561; Virginian Ry. Co. v. Armentrout,

4 Cir., 166 F. 2d 400, 4 A.L.R. 2d 1064; see also,

Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir,

190 F. 2d 825, 830; Consumers Power Co. v. Nash, 6

Cir., 164 F. 2d 657, 660; dissenting opinions of Judge

Holmes in Sunray Oil Corp. v. Allbritton, 5 Cir., 187

F. 2d 475, on rehearing 188 F. 2d 751. These decisions,

we believe, are representative of the correct view with

respect to appellate authority to review the trial court’s

discretion. If that discretion be abused, this court will

not be powerless to act.’’?°

The Court below attempted to reconcile its decision with

Judge Lindley’s analysis in Bucher v. Krause, supra, by

asserting that its affirmance of the District Court after

exhausting its limited power of review was consistent with

the ‘‘holding’’ of Bucher v. Krause, which likewise affirmed

the trial court’s denial of a new trial on the grounds of

excessive damage. But the significant difference between

the two decisions and the reason they are in conflict is that

the Court of Appeals in the Bucher case affirmed the Dis-

trict Court after it had reviewed the claim of excessiveness

in the light of all the record facts bearing upon the issue

of compensatory and punitive damages, whereas the Court

below refused to consider whether the record facts in this

case bearing on special and punitive damage could, as a

matter of law, justify the amount of damages that had been

awarded. The appellant in Bucher v. Krause obtained

from the Court of Appeals the review which Petitioner

requested but did not obtain from the Court below.

10 Td. at 586.

13

It is respectfully submitted that the Court below was in

error in restricting the character of review afforded Peti-

tioner and that the conflicting decisions in the 3rd, 4th, 7th

and 9th Circuits, cited above, should be accepted by this

Court as expressing the proper function and duty of a

federal appellate court.

9. The status of the law on the issue presented by this

Petition is unsettled not only because of conflicts in the

decisions of different Courts of Appeal, but also because

of the various interpretations that have been placed on the

statement of this Court in Affolder v. New York, Chicago

and St. L. RR. Co., 339 U.S. 96 at page 101. In that case

this Court said:

‘‘We agree with the Court of Appeals that the amount

of damages awarded by the District Court’s judgment

is not monstrous in the circumstances of this case.”’

It would logically follow from the foregoing statement

that this Court is of the opinion that it is appropriate for

a Court of Appeals to consider and pass upon the question

of whether the amount of damages awarded by a District

Court is excessive in the circumstances of the particular

ease. The Affolder case came to this Court from the Court

of Appeals for the 8th Circuit. The question was next con-

sidered by the 8th Cireuit Court of Appeals in St. Louis

Southwestern Railway Company v. Ferguson, 8 Cir. 182

F. (2d) 949. The 8th Cireuit Court of Appeals character-

ized the above-quoted statement of this Court in the Af-

folder case as ‘‘dictum’’ and pointed out that this Court

was in error in implying that the Court of Appeals had

considered the question of excessiveness of the judgment

when it reviewed the Affolder case. 182 F. (2d) at page

955."

11 Although intimating that it should not consider the ‘‘dictum’”’

of this Court controlling until a clearer expression of the law had

been announced, the 8th Circuit Court of Appeals in St. Louis

Southwestern Ry. Co. v. Ferguson, supra, reluctantly considered

whether there had been an abuse of discretion by the trial court in

refusing to set aside a verdict for excessiveness, 182 F. (2d) 949,

at page 955.

14

The Court below in the instant case gave no weight at

all to the above-quoted statement of the Court in the

Affolder case. It disposed of Petitioner’s contention as

follows:

‘“‘The appellant suggests that appellate power to re-

view a verdict for alleged excessiveness was recog-

nized in a dictum in Affolder v. New York, and St.

Louis RR Co., 339 U.S. 96—a decision in 1950 which

reversed on another ground a decision by the Court of

Appeals for the Eighth Circuit. But the Eighth Cir-

euit Court of Appeals when the question was next

before it, did not read Affolder as so holding, St. Louis

Southwestern Ry. Co. v. Ferguson, 8 Cir. 182 F. (2d)

949, and we agree.’””

With all deference, it is submitted that the Court below

misread the opinion of the Eighth Circuit Court of Appeals

in St. Louis Southwestern Ry. Co. v. Ferguson, supra.

That opinion leaves no doubt that the Eighth Circuit Court

of Appeals correctly read the ‘‘dictum’’ of this Court in

Affolder as recognizing appellate power to review a verdict

for alleged excessiveness. What the Kighth Circuit Court

of Appeals said was that the Supreme Court had

misread the opinion of the Court of Appeals in

Affolder. But whether or not the Court of Appeals

in the Affolder case had passed upon the question of

whether the amount of damages awarded by the

District Court was excessive in the circumstances of

that case, it is perfectly apparent that this Court did con-

sider and decide that question. If it was proper for this

Court to review the judgment in Affolder for alleged ex-

cessiveness, it must follow that the Court below was in

error in holding that it was without power to afford Peti-

tioner such a review of the judgment of the District Court.

Courts of Appeals in other Circuits have not construed

the opinion of this Court in the Affolder case as did the

Court below. On the contrary, they have read the opinion

as confirming not only the power but also the duty of a

Court of Appeals to consider an assignment of error based

12 Appendix, p. 13.

15

upon the excessiveness of the amount of damages awarded

by the District Court. Thus in Southern Pac. Co. v.

Guthrie, supra, the Ninth Cireuit Court of Appeals stated:

‘<Bven if there had been any previous reason for doubt

on this question, it would seem to have been put to rest

by the statement of the Supreme Court in Affolder v.

New York, Chicago & St. L. R. Co., 339 U.S. 96, 70

S.Ct. 509, decided after this court’s former opinion

in this case. There 339 U.S. at page 101, 70 S.Ct. at

page 511, the court said of the claimed excessiveness

of the verdict: ‘We agree with the Court of Appeals

(8 Cir., 174 F. 2d 486) that the amount of damages

awarded by the District Court’s (79 F. Supp. 365)

judgment is not monstrous in the circumstances of this

ease.’ This language would be without point unless

the Supreme Court was of the opinion that it might

do something about the excessiveness of the verdict

if its amount could be called ‘monstrous’. This is not,

we think, substantially different from our statement in

the Department of Water & Power case, supra, that

‘the rule in this court is that the refusal to grant a

new trial is ‘such an abuse of discretion as is review-

able by this court’ where the verdict is ‘grossly ex-

cessive.’ ’

‘““The statement made by the Supreme Court in the

Affolder case has been drawn in question by the court

whose decision was there reviewed. In St. Louis

Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F. 2d

949, the court suggests that the language used by the

Supreme Court discloses a mistaken assumption as

to what the Court of Appeals had held. With apparent

reluctance it recognized the possibility that the rule

was as stated in the Affolder case, saying: ‘It may be

that a change in the rule is desirable, to allow a general

review of the question of excessiveness, such as is the

practice in many state appellate courts. or with a more

restrained sense of responsibilitv, perhaps, to permit

jndement to be passed upon whether there has been-an

abnse of discretion by the trial court in refusing to set

aside a verdict on motion for new trial.’ 182 F. 2d at

page 955.

cre _

16

‘*For the reasons previously stated, we think, contrary

to what the Court of Appeals for the Eighth Cireuit

implied, that what was said in the Affolder case was

foreshadowed in the Fairmount Glass Works case.

In the face of this statement in the Affolder case we

are not prepared to withdraw what this court said

in Cobb v. Lepisto.’’*

A similar interpretation of this Court’s holding in the

Affolder case was adopted by the Seventh Circuit Court

of Appeals in Bucher v. Krause, supra, at page 587.

3. The question presented by this Petition is one which

goes to the very heart of our federal judicial system. One

of the principal arguments justifying the system of discre-

tionary review by this Court on petition for writ of certi-

orari is that all litigants in the federal courts are entitled

to one appellate review on all questions of law by a Circuit

Court of Appeals. Whether or not a District Judge abuses

his discretion in denying a motion for new trial on the

grounds of excessive (or inadequate) damages is a ques-

tion of law, not a question of fact. Leaving the determina-

tion of such a question to the sole judgment and conscience

of the trial judge is repugnant to theory and philosophy

underlying the federal judicial system."

Fortunately, in many of the Circuits, at the present time,

a litigant in the federal courts is assured that he will

receive at least one review by a federal appellate court of

any judgment against him which he believes to be excessive.

In the Second Circuit, however, unless the decision of the

Court below is reversed, a litigant can obtain no relief

from an arbitrary refusal by the Trial Judge to grant a new

trial on the grounds that the evidence does not reasonably

18186 F. (2d) 931.

14 See the learned exposition of the early law on this subject

of appellate review for excessiveness or inadequacy of damages and

the responsibility of the Court of Appeals on this question under

existing law as contained in the dissenting opinions of Judge

Holmes in Sunray Oil Corporation v. Allbritton, 5 Cir., 187 F.

(2d) 475, 477, on rehearing 188 F. (2d) 751, 752.

17

support the amount of the verdict. Litigants in the federal

courts of the Second Circuit, therefore, are deprived of

review which is accorded to litigants in state courts and in

many of the other federal circuits.

Moreover, a clear enunciation by this Coart that Courts

of Appeals of all Circuits have the power and duty under

Section 2106 of Title 28, USC to afford a litigant relief

from an excessive judgment for damages would go far to

stop ‘‘forum shopping”’ in libel and other tort actions. The

power to grant a new trial or to direct a remittitur of a

portion of the damages as an alternative to a new trial,

where the District Court has awarded excessive damages,

must exist in the federal appellate courts if litigants who

are sued in Federal Courts are to receive equal justice

with those sued in State Courts. The case of Covey Gas &

Oil Company v. Checketts, 9 Cir. 187 F. (2d) 561, is in

point. There the Court, speaking through Chief Judge

Denman, said (at p. 563):

‘“‘This is a clear case of what is aptly called ‘forum

shopping.” The identical case was brought in the

state District Court of Idaho against the appellant

and its employee Bowman, the truck’s driver. A

verdict for $40,000 was rendered against both defend-

ants, which the trial judge set aside on the sole ground

that it was excessive, and a new trial was ordered.

The plaintiffs then dismissed the suit as to the appel-

lant and brought the instant suit against it in the

United States District Court, apparently seeking the

decision of a judge who would sustain a larger award

than the state judge.

‘‘On the appeal in the Idaho suit, Checketts v. Bow-

man, 70 Idaho 463, 220 P. 2d 682, 684,*® the state su-

preme court upheld the trial court’s decision that the

damages awarded were excessive but gave the plain-

tiffs the choice of a remittitur of the verdict’s amount

**2 Horowitz, Erie R.R. Co. v. Tompkins—A Test to Determine Those

ge of State Law to Which Its Doctrine Applies, 23 So. Calif. L. Rev.

4, 215.

**8 Decided after the order denying a new trial in the instant case.’’

18

to $20,000 as an alternative to the granting of a new

wink: :? *.%

ce @

‘¢* * * Following the language of the Idaho Supreme

Court, the cause, is remanded with directions to the

district court to enter judgment on the verdict for

plaintiffs in the sum of $20,000, if within 30 days of

the filing of the remittitur in that court the plaintiffs

file a written consent to the reduction of the verdict

and acceptance of judgment in the amount of $20,000,

or in the event of plaintiffs’ failure to file such con-

sent, to order a new trial. The appellant is awarded

its costs.’’

It is not without significance that respondent brought

suit in the New York state court against News Syndicate

Co., Inc., publishers of the Daily News in New York because

it also had published the charges which respondent’s wife

had made in support of her motion for temporary alimony.

The circulation of the Daily News was 2,100,000 and that

of Petitioner’s paper 105,000. Respondent recovered a

verdict of $25,000 against the News Syndicate Co.

Stevenson v. News Syndicate Co., Inc., 302 N.Y. 81. It is

likewise significant that no verdict for an individual, or

a corporation, in the amount of $75,000 has ever been

sustained on appeal in the courts of the state of New York.

In the Court below, Petitioner marshalled the cases that

had been decided in the New York appellate courts, which

showed how essential the exercise of the power of the

appellate court to reduce an excessive judgment or direct

a new trial has been to the proper administration of justice.

That such an avenue of relief would have been available

to Petitioner had it been sued in the State Court is not

open to question. Evans v. Star Company, 216 App. Div.

736, affirmed 243 N.Y. 626; Crave v. Bennett, 77 App. Div.

102; Bishop v. New York Times Company, 194 App. Div.

881, 214 App. Div. 723; Van Siclen v. Bush, 254 App. Div.

851, affirmed 279 N.Y. 753; Foerster v. Ridder, 275 App.

19

Div. 665; Corrigan v. Bobbs-Merrill Co., 182 App. Div. 919;

McMahon v. New York News, 51 App. Div. 448; Gideon v.

Daily Mirror, Inc., 263 App. Div. 807, affirmed 289 N.Y.

767; Fleetwood Foundation, Inc. v. Daily Mirror, Inc., 243

App. Div. 687, affirmed 267 N.Y. 582; Mogle v. Franz, 267

App. Div. 423.

It is unnecessary for the purposes of this Petition to

show here what the Court below refused to consider—

namely that the evidence adduced by Respondent in sup-

port of its claim of special damages could not legally justify

the award of $24,000 and that the circumstances surround-

ing the publication of the article complained of bearing on

the question of whether any punitive damages should have

been awarded, could not on any theory of the case justify

an award of $50,000. Petitioner was entitled to have the

Court below consider these contentions.

PRAYER

It is respectfully prayed that the writ of certiorari issue

to the United States Court of Appeals for the Second

Cireuit to review its judgment in this case, and upon such

review reverse the judgment of the Court below and remand

the case with instructions to afford Petitioner a review of

its assignment of error that the District Court abused its

discretion in denying a new trial on the grounds that the

amount of special and punitive damages awarded was

excessive.

Respectfully submitted,

Wituiam J. Dempsey

Attorney for Petitioner

DEMPSEY AND KopLovitz

938 Bowen Building

Washington 5, D. C.

McCavutey anp Henry

959 Eighth Ave.

New York, N. Y.

Of Counsel