# Brief of Respondent in Opposition to Petition for a Writ of Certiorari — May v. Ellis Trucking Co. (No. 160) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1312%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Respondent in Opposition to Petition for a Writ of Certiorari - **Published:** January 1, 1957 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1312%3A3. Public record. Not legal advice.