Brief of Respondent in Opposition to Petition for a Writ of Certiorari — May v. Ellis Trucking Co. (No. 160)

Office Supreme Court, U.S

Dy 3.40 2 DD

JUN 23 t3,

No, 4053. / S| JOHN T. FEY, Clerk

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1956/

: ' Z

CHARLIE E. MAY,

Petitioner,

VS.

ELLIS TRUCKING COMPANY, INC.,

Respondent.

Petition for Writ of Certiorari to Review the Judgment

of the United States Court of Appeals

for the Sixth Circuit.

BRIEF

Of Respondent in Opposition to the -

Petition for Certiorari.

L, E. GWINN,

725 Columbian Mutual io

Memphis, Tennessee,

Attorney for Respondent.

NELSON, NORVELL and FLOYD,

- 1001 Columbian Mutual Tower,

Memphis, Tennessee,

(Of Counsel).

Sr. Louis Law PRINT! 66 Co ANS North heen Street. CEntral 1-4477

INDEX -

-

& : ~ }?:

ri Bak

Opiaions below. / x

Jurisdiction

Statement of the case

Trial Jndge has discretionary power to order a new

trial

“

Cases Cited.

Aetna Casualty & Surety Co. v. Yeatts, 4th Cirenit, 122

gee eer erer ser pice Ce ae ie

Dimick v. Scehiedt, 208 U.S. 474, 482-485... .

Fairmont Glassworks v. Cub Four Coal Co., 287 U.S.

iC Sa ac Dn Ge eM Pre WM aes ati Bey ada oe, « °

aN acca ate tad Octet ot ee rkac Rexen eas

Statutes Cited.

WARY; Sa, Oe AO i ca te eects

Oe a Pe ee eee

Textbook Cited.

Barron & Holtzoff, Federal Practice & Procedure, See.

SE Ds fe St at Bp at ata ede h Re SS Pe Oe oe SSE Oe allel :

Rules Cited.

to te

to

6

No, 1053,

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1956,

Z

CHARLIE E. MAY,

| Petitioner,

VS,

ELLIS TRUCKING COMPANY, INC..

Respondent.

’

Petition for Writ of Certiorari to Review the Judgment

of the United States Court of Appeals

for the Sixth Circuit.

BRIEF

Of Respondent in Opposition to the

Petition for Certiorari.

OPINIONS BELOW.

The opinion of the trial court overruling petitioner's

motion for a new trial appears at pages 102a-1l04da of the

Appendix in. this case.

The order of the court overruling the motion for a new

trial and directing a remittitur appears at page 105a_ of

the Appendix and is set out at pages 44 and 45 of the

Petition for Writ of Certiorari in this cause. :

The Court of Appeals ie uot render ad written opinion

In the case but rendered the following judgment, whieh is

setoout gut pace 45 of the Petition for Certhorari, and reads

its follows: : |

‘lu ou suit) for personal dujuries arising from an

witomobile accident, appellant was awarded) a jury

Verdict of 342.500, On imotion for a new trial, the

district court entered judgment for YOO without

obtaining the consent of appellant, concluding that in

View of the testimony on the’ extent of injury the

‘verdict was so excessive as to shock the conse hence of

the court.” There is nosquestion under these cireuin-

stances that the trial judge had the discretionary

power to order a new trial but the district court com

initted-error by reducing the verdict: without viving

appellant the option of either accepting a remittitur

orof having a new trial. Kennon v. Gilmer, 131 U.S

22, 24-30 (188): Dimick v. Schiedt, 2023 U. S. 414.

482-85 (1935). |

Upon reniand the district court will have the power

aes to erant or deny a new trial ter nerally or to

deny a new trialon the condition that appellant accept

i jndement fora lesser amount than the jury verdict.

The Judgment is set aside and the case-is renianded

to the district conrt for reconside ‘ration of the motion

fora new trigk

JURISDICTION.

Jurisdiction is apparently invoked by Petitioner under

United States Code Tithe 18, Section 1254 (1) and under the

provisions of Supreme Court Rule I (J) (bh).

Jurisdiction in the trial court was founded upon diver

sity of citizenship, Petitioner and Respondent being citi

aeons and domictled in different states and the amount. in

controversy exceeding, exclusive of interest and costs, the

smn of $3,000 (Tithe 28, US. Code, See. 1332)

STATEMENT OF THE CASE.

The complaint filed in the United States Disfrier Cour

for the Western District of Peruessee alleged coriunon fas

and statutory Mieoliewece, mneluding a viedation of Meripbas

City Ordinamees. tel claire damages in thie sui oof

$75,000 (App Sad for personal iotiries. and property datn

ages inoan adelitional se separate str oF ROMO Ny

Ila). | |

Respondent answered, admitting the diversity of citizen

ship, alleging that Petitioner had a poliey of colliston tn

surance and setting out that he collected a claim there

under of $857.50, and denving all other allegations of the

complaina and asking that it be distnissed (App. PBas Pia).

Petitioner, plaintiff below, thereafter songht and ob

tained leave to amend the complaint and increased the

demand for compensatory damages to $100,000.04 pp. Wa,

I6a, 17a). ae =

After a trial lasting several days the jury returned a

verdict. in favor of Petitioner and against the Respomdent,

Ellis Trucking Co. Ine.. and assessed personal injury dan.

ages ins the amount of $42500 and property damages oy

the sum of $1,100 (App. 88a), |

>

Respondent duly filed a motion for a new trial and ofa

consideration thereof the same was overruled except as to

grounds TH and [Vie which read as follows:

“TTT. The verdict of othe jury is excessive.’

“IV. The verdict of the jury Is SO EXCESSIVE AS te:

evince passion, prejudice or unacconntable eaprice on

the part of the jurv. ~

In sustajnine these eromnds ot the -miotion, the “oor

said: |

“A new trial will not be necessary in this case, but-

in the court's opinion the jury's appraisal of the dam

ages was so manifestly excessive that the eourt is

bound ino the Ontewest ol justice to order that the ex

vessive portion of it be remitted, This Was at Ione,

strous verdiet.” © * ° Certainly there was no rational

appraisal of-the evidence on the question of damages

in the light of what would be reasonable for the in

jury involved, ° °° ‘The forty-two thousand five

hundred dollar verdict wascso excessive. as to shock

the conscience of the court, ;

“Now the right of the court to revise a jury verdigt.

is a delicate one, and one this court is always slow to

exercise, but justice requires that course in this case.

We don’t know, and it would be speculative to say,

on what definite basis the jury arrived at such a ver-

dict, but it was certainly not on the evidence the court

heard during the trial. © ° * At any rate, it was so

excessive as to evince passion, prejudice and caprice

on the jury’s part, and the court's duty in the matter.

is very plain’? (App. L02a-103a). |

J The court regrets the necessity of saying so, but

under the evidence, that is, the substantial evidense in

the case, it is the court’s view that this verdict ‘should

be reduced to twenty-five thousand dollars. After this

reduction, it is still a very large verdict’ (App. 104a),

TRIAL JUDGE HAS DISURETIONARY POWER

TO ORDER A NEW TRIAL.

The Court of Appeais, in reversing the case, recognized

the established rule that the trial judge has the disere- |

tionary power to order a new trial, but held that it was

error to reduce the verdict ‘without giving appellant an

‘opportunity of either accepting a remittitur or. of having

anew trial. - Kennon v. Gilmer, 131 U.S. 22, 27-30; Dimick

v. Schiedt, 295 U.S. 474, 482-485."

It also held that upon remand the district court would

have the power either to grant a new trial generally or

of denying a new trial on condition that appellant accept

a judgment fora desser atmeouwat than the jury's verdiet. On

this potut, Wwe quoce Prous the decision of this Court 1h

Kennon v. Gilmer, 132 U.S. 22. whieh, after stating that it

had no authority. te pass upon any question of fact ine

volved in the consideration ot thre riotian Por at new trial.

held as follow ~;

Phe erronceus judeiment of the Supreme Court of

the Territory being reversed, the case will stand as if

no such judgment had been entered ; and that Court

will be ateljberty, in disposing of the motion for a new

trial, aceording to its view of the evidence either to

deny or to erant ao new trial generally) or to order

judgment for a less sum than the amount of the ver

dict. conditional ipou a remittitur by the plaintiff.”

Under Rule 50 of the Federal Rules of Civil Procedure

the trial judge is authorized to grant a ew trial for any

of the reasons for whieh new trials had theretofore been

eranted in-actions at law, and for any of the reasons for

which new hearings had theretofore been eranted in suits

in equity ny the courts of the United States.

Under Rule 50 (d), the Court, of its own initiative, may

order a new trial for any reason for which it might: have

eranted a vew trial on motion of a party. and the order

shall specify the grounds therefor (Barron & Holtzoff,

Federal Practice & Procedure, See, 1202).

In fact, it is not only the power but the duty of the

judge who ix not satisfied with the verdict of a. jury, to

set the verdict aside and erant a new trial. Aetna Casualty

& Surety Co. v. Yeatts, 41h Cirenit, 122 BF. 2dejoo.

It is well settled that the cranting or refusing of a new

trial is a matter resting im the sound discretion of the trial

judge, and that his action thereon is not reviewable upon

appeal save if the most exceptional circumstances, Mont-

gomery Ward & Company v. Duncan, 311 U.S. 243; Fair-

mont Glassworks v. Cub Four Coal Co.* 287 U.S. 474. |

Hat the trial judge set aside the judgement and granted

ado onew trial, his action int so domme would tot have beeni

reviewable under the facts in this ease. but le reduced the

verdict instead of granting a rien trial, conditional pon a

remittitur bythe plaitiy,

It is clear of doubt that the respondent Was entitled to

anew trial, which petitioner contd have aveided by treat

ing the reduction made by the judge as a remattitur Fadil

ing io do that, he had no right to coriplain ofthe action

of the Court of Appeals ino remanding the case

No ground for’ cértiorari is set forth in the petition. The

lengthy petition (45 pages in length) fails to state a single

reason Why the writ of certiorari should be granted.

Its argument (pages 9-26) would be more appropriate

before a jury than the Supreme Court; moreover, it «i

rectly challenges the well-established remittitur practice

in Federal Courts (pages 21-22 of the Petition).

The Petition for Certiorari does not point out-any con

flict in decisions of the different circuits or any violation

of an applicable decision of this court, nor does it present

With accuracy, brevity and clearness whatever is essential

toa ready and adequate understanding ef the points. re-

quiring consideration as required by Rule 23 of this Court.

It is, therefore. respectfully submitted that the Petition

should be denied.

LL... GWINN,

725 Columbian Mutual Tower,

Memphis, Ternessee,

Attorney: for Respondent,

NELSON, NORVELL and FLOYD,

1001 Columbian Mutual Tower,

Memphis Tennessee,”

(OF Counsel).