Petition for Writ of Certiorari — Floyd v. Complete Auto Transit, Inc. (No. 825)

an eee ——

TERY ' Office -Supreme Court rR:

SUPREME COURT. tt Ss P it £0

MAR 3 1958

JGHN T. FEY, Clerk

Supreme Court of the United States

October Term, 1957

wo... 825

DEROY FLOYD, FRANCES FLOYD DYAL, IRENE

FLOYD WILLIAMS, and W. D. FLOYD, ROBBY

RAY FLOYD, BOBBY GENE FLOYD, DAVI D

EARL FLOYD, JAMES PRICE FLCYD, HAZEL.

FLOYD, J. KE. FLOYD and JO ANN FLOYD, minors,

by and through their next of friend, their father, DE-

ROY FLOYD, Petitioners, snr

/

versus

COMPLETE AUTO TRANSIT, INC., Reseoxpext

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

HENRY HAMMER,

Columbia, South Carolina,

HENRY H. EDENS,

Columbia, South Carolina,

J. H. HIGHSMiSh

Baxley, Georgia,

GORDON KNOX, JR..

Hazelhurst, Georgia,

KE. WAY HIGHSMITH,

Brunswick, Georgia,

LAMAR W. SIZEMORRE,

Atlanta, Georgia,

Attorneys for Petitioners.

z Pacer

Opinions Below .....---+-+++22secressrstseenst 1

SeMiadMiCHOR. oo. cic ce cers nes sven oe sesceteeeeers® 1

Questions Presented ......---++++srrrreterstssnttt 2

Constitutional and Statutory Provisions Involved ..... 2

Statement. ....--..- sere hssecc i oseeasensnenesyee sss 3

Reasons for Granting the Writ ..0cas. Ra csek sa eeeee 5

(1) There is an existing conflict among the Circuits

on the issues presented ....--++++sessrerreee aS

: (2) The decision herein violates the 7th Amendment

and is not in accord with applicable decisions of

thie Court ..<.o..sccr ec cosecsecsecccecesseces 9

(3) The action of the Court below constituted an in-

vasion of the province of the jury and usurpation |

of the prerogative of the trial judge and is in

direct conflict with Neese v. Southern Ry. Co.,

BO US. TT wc cnc ccc eset eee eeene seeeeeeeeees 11

Conclusion ee ee ee ee ee een eee a eas CO 18

FP ee Reps ee Cee Te URE DRL kes Sah neh ined Snake 19

Index to Appendix ......---ceccecsernesesgescssess 20

(i)

CITATIONS

Pace

Accardi v. Shaughnessy, 347 U.S. 260 ............... 16

Affolder v. New York, C. & St. L. R. Co., 339 U. - 96 7

—s

Arkansas Valley Land & Cattle Co. v. Mann, 139 U.S. :

DP ec id ook 5 hes woe See Ode a AA Loe Cas Wades 5 oe

Atlantic Coast Line v. Wells, 78 Ga. App. 589, 53 S. E.

CB Dish a i ose cS ka) don ona cewas dewawasss 12

Blue’s Truck Line, Inc., v. Harwell, 59 Ga. App. 305, 200

PERSO oS a Reg ae 4, 12.

Bucher v. Krause, 200 F. (2d) 576 .................. 8

Chesapeake & O. R. Co. v. Gainey, 241 U.S. 494 2.2.2... 7

Chicago, Rock Isiand & Pacifie R. Co. v. Kifer (C.

Nha ee a IE PO ieee dar RS kcains were ode daspies 7 8

Chicago, Rock Island & Pacific R. Co. v. Williams, 245

FP. (2d) 907... <.¢. Poh Ul Sa ena s Giks byl wn ad owe 40 ch 60 8

City of Lincoln v. Power, 151 U. S. 487 ............. 9, 10

Com: ©. Caee, © Fs Cae Bae oo rok ca we ceecscceas 6, 10

Eastman Kodak Co. v. Southern Photo Materials Co.,

Ek RS one ee ip nee nr bere 9

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

BOG ig cre an ie on nS ta dak ee on ca 7, 9, 16

Frasier v. Public Service Interstate raeeecanimneres Co.

CES Bia i ee ec Re MD oa ds ca ie Cre Oh a dn diecscd es 12

Glenwood Irrigation Co. v. Vallery (C. C. A. 8), 248 F

SPEAR OE TR Re MTS See” SPORE ho ye a pa 7

Herencia v. Guzman, 219 U.S. 44 ....... ann ainatee Ga uke 9

Langnes v. Green, oe le ee SS ag 16

6

Lebeck v. William A. Jarvis, Inc., 250 F. (2d) 285 ...8, 12

Lewis v. Williams, 78 Ga. App. 494, 51 S. E. (2d) 532... 3

2

.

Lithgow v. Hamilton (Fla.), 69 So. (2d) 776 .......... |

Miller v. Maryland Casualty Co., 40 F. (2d) 463 ... .6,

Neese v. Southern Ry. Co., 350 U.S. 77 ... 2.2.22... th 17

New York Central and H. R. R. Co. v. Fraloff, 100 U.

Ee Sa eet ie ne ise ane poe os aces was 9, 17

( ili )

CITATIONS—Oontinned

ae Pace

N. Y. Lake Erie and Western R. Co. v. Winter, 143 U.

8. = ee dns Od WSS TAD RAE NA dS COS ED ED EO URS 9

Parsons v. Bedford, 3 Pet. 433 .................-.40: 9

Peeler v. Central of Georgia Ry. Co., 163 Ga. 784 (2d),

Be £ SS SS SP oy ee ry oper ee rere

Pollard v. Kent, 59 Ga. App. 118, 200 S. E. 542 ........ 4

Powers v. Wilson, 110 F. (2d) 960 ................... 8

Rankin v. Shayne Bros., Inc., 234 F. (2d) 35 ......... 8

Snyder v. U.S., 350 U.S. 906 ....... oS ep ree es 17

Southern Pac. Co. v. Guthrie, 186 F. (2d) 926 ....... 6, 10

Southern Railway-Carolina Succad- v. Bennett, 233 U. S. |

OO icc eo Rs ice ee 8 A eS OTA So ew hd SR

Spero: Nelows v. Brown, 175 rE fg Geer 8

Standard Oil Co. v. Reagan, 15 Ga App. 571, 84 S. E.

ei wa ova Sas Fn Spd Se A es 4

Stevenson v. Hearst Consol. Publications (C. A. 2), 214

Se. BRA RE ee ea rie ee oe 7, 8, 10

St. Louis Southwestern R. Co, v. Ferguson (C. A. 8),

RE ee aio are a es nce tk ee eed enna oe 8, 10

The Abbotsford v. Johnson, 98 U. S. 440 ............ 9, 10

Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 ....6, 7

United Press Asso. v. National Newspaper Asso. (C. C.

ye > | Eee ye a Sere Sau Pace 7

U. S. v. Socony, 310 U. S. 150, 247 ..... 2... eee eee 7

Virginig Ry. Co. v. Armentrout (C. A. 9), 166 F. (2d)

Ms Aas Ga PE eS at Oe haw helen CERES S 6

Woathersbee v. Elgin, Joliet and Eastern Ry. Co. (7th —

eee SAR LB eres ere - Se

Whiteman v. Petrie, 220 F. (2d) 914 ................- 5

Georgia Code, Section 105-1306 ..................... 2

Georgia Code, Section 105-1308 ...................... 3

7th Amendment, U. S. Constitution ........... eceenes 2

BS ae Pee ye Sees Pee er eee TEER PO ee 2

DEROY FLOYD, FRANCES FLOYD DYAL, IRENE

FLOYD WILLIAMS, and W. D. FLOYD, ROBBY

RAY FLOYD, BOBBY GENE FLOYD, DAV ID

EARL FLOYD, JAMES PRICE FLOYD, HAZEL

FLOYD, J. E. FLOYD and JO ANN FLOYD, minors,

by and through their next of friend, their father, DE-

ROY FLOYD, Petirsoness, ’

Versus

COMPLETE AUTO TRANSIT, INC., Resroxvert

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners pray that a Writ of Certiorari issue

to review the decision and judgment of the United States

Court of Appeals for the Fifth Cireuit, dated and entered

_ in this ease on November 13, 1957.

OPINIONS BELOW

The opinion of the District Court (App. 21) is unre-

ported. The opinion of the Court of Appeals (App. 26)

is reported in 249 F. (2d) 396, and its opinion on petition

for rehearing (App. 41) is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on Movember 13, 1957 (App. 32). Petition for rehearing

(App. 33) was denied on January 14, 1958 (App. 34). The

2 Fvroyp et al., Peririongrs, v. Com. Auto. TRANSIT, INC., RESPONDENT

, jurisdiction of this Court is invoked under the provision:

of 28 U.S. C. 1254.

QUESTIONS PRESENTED

1. Did the Court of Appeals have the power under the

constituticnal limitation of the Seventh Amendment to re-

view the question of alleged excessiveness of the jury ver-

dict in-a tort action for unliquidated damages not ascer-

tainable with mathematical certainty and resting upon in-

absolute elements?

2. May the Ceurt of Appeals, assuming it has appellate

power to review the denial by the trial judge of a motion for

a rew trial on the ground that the verdict was excessive,

disturb such action of the trial judge which was not with-

out support in the record? ;

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U. 8. Constitution, Amendment VII:

‘*TIn suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried by a jury

shall be otherwise re-examined in any Court of the

United States, than according to the rules of common

law.’’

Georgia Code Section 105-1306:

‘Homicide of wife or mother—The husband may

recover for the homicide of his wife, and if she leaves

child or children surviving, the husband and children

shall sue jointly and not separately with the right to

recover the full value of the life of the decedent, as

shown by the evidence, and with the right of survivor-

ship as to said suit, if either shall die pending the ac-

tion.’”’

Fiovp et al., PETITIONERS, v. Com. AuTO. Transrt, INC., RESFONDENT 3

Georgia Code Section 105-1308:

‘‘Full value of life of decedent, as shown by the

evidence defined—The full value of the life of the

decedent, as shown by the evidence, is the full value

of the life of the decedent without deduction for neces-

sary or other personal expenses of the decedent had he

lived.”’

STATEMENT

Petitioners, residents of Georgia, surviving husband

and ten children of Mamie M. Floyd, deceased, brought suit

under the wrongful death statute of Georgia, Code Section

105-1306, to recover damages against respondent, a Michi gan

Corporation, for the negligence of its employee and servant

in the operation of one of its tractor trailer vehicles while

proceeding along a highway in Georgia, as the result of

which the tractor trailer of respondent overtook and struck

a farm tractor upon which Mrs. Floyd was riding, causing

her to be thrown therefrom to the ground and to sustain

injuries from which she died on August 2, 1955. At the time

of her death, Mrs. Floyd was 39 years of age.

The jury brought in a verdict of $107,500.00 in tavor of

petitioners upen which judgment was entered. Upon con-

sideration of respondent’s motion fur new trial, the District

Court denied same, whereupon the respondent appealed to

the Court below.

On appeal, the Court helow reversed as to the issue of

damages solely ‘‘upon the ground that the court below

(District Court) abused its discretion in refusing to set the

verdict aside as excessive’’, without pointing out any speci-

fication of abuse.

The cause of action for death under the applicable Code

Section 105-1306 ‘‘is jointly given to the husband and

children surviving at the time the action is brought, irre-

spective of the age of the children and questions of de-

pendency and contribution, Lewis vr. Williams, 78 Ga. App.

4 Frovp et al., Perrrionwens, v. Com. Auto. Taanarr, Inc., ResrPonpent

494, 51 S. E. (2d) 532; Peeler-v. Central of Georgia Ry. Co.,

163 Ga. 784 (2d), 137 S. E. 24. :

The damages recoverable by the husband and children

surviving, as beneficiaries under the Code, are the full value

of the life of the decedent without deduction for necessary

or other personal expenses of the decedent had she lived,

Georgia Code Section 105-1308, which include (1) the pres-

ent cash value of the future earnings of deceased during

her life expectancy had she lived and (2) the present cash

value to each of the beneficiaries of the loss of the future

services the deceased would have rendered as a wife and

mother during her life expectancy had it not been for her

untimely death, assessed by the jury “‘in the light of their

own observation and experience and to the satisfaction of

their own consciences.’’ Pollard v. Kent, 59 Ga. App. 118,

200 S. E. 542; Standard Oil Co. v. Reagan, 15 Ga App. 571,

84 S. E. 69, and “‘gross mistake or uudue prejudice or bias”’

can not be inferred merely from the size of the verdict,

Blue’s Truck Line, Inc., v. Harwell, 59 Ga. App. 305, 200

S. F. 500.

That the value of the domestic services which a de-

cedent would have performed as a wife and mother during

her life expectancy had she lived is not ascertainable with

mathematical certainty and rests upon inabsolute elements

is manifest from the decision of the Court below wherein

it states that the privilege of having the wife and mother in

the home, an element of damages, is ‘‘not readily evaluated

by dollar standards’’ and that ‘‘the value of domestic serv-

ices rendered by a wife could include ‘the value of many

services incapable of exact proof.’ '’ And in Standard Oil

Co. v. Regan, supra, the Georgia Court stated ‘‘that there

need be no direct or express evidence of the value of the

wife’s services, either-by the day, week, month, or any

period of time, or of any aggregate sum.”’

FLovp et ol., Pertrionzns, v. Com. Auto. Transtt, Inc., REsPONDENT 6

The amount of damages assessed by the jury was sup-

ported by the evidence of record showing (1) the earning

capacity of deceased, (2) her age at the time of death, (3)

her probable life expectancy, (4) the habits, disposition and

proclivities of the deceased to her husband and ten children,

to wit, her tender ministrations, unselfish devotion and

countless loving services, the manual work performed by

ner on the family farm and the work performed in and

about the house, consisting, inter alia, of making beds, cook-

ing, washing, ironing, patching clothes, mopping and yard

sweeping (R. 162-166).

—_=>

REASONS FOR GRANTING THE WRIT

1. Existing conflict among the Circuits on the issues

presented: The issnes in this case are (1) whether, in tort

actions for wrongful death where the damages recoverable

are not ascertainable with mathematical certainty and rest

upon inabsolute elements, federal appellate courts have the

power to review for error of fact the question of the exces-

siveness or inadequacy of jury verdicts, and (2) assuming

that such power exists, whether a federal appellate court

may disturb the action of trial judge refusing to grant a

motion for a new trial made on the ground that the verdict

is excessive where such action of the trial judge is not with-

out support in the record.

On the first issue clearly there is an existing conflict

among the Circuits. Weathersbee v. Elqin, Joliet and East-

ern Ry. Co., (7th Cir.), 191 F. (2d) 302. |

Other than the 5th Circuit, Whiteman v. Petrie, 220

F. (2d) 914, the only other Circuits holding that federal

appellate courts are empowered to: review the question of

the excessiveness of damages in a tort action where the

damages are not ascertain: ble with mathematical certainty

and rest upon inabsolute elements are the 4th Cireuit, Vor-

6 Futovp et al., Peririongers, v. Com. Auto. TRaNs!t, Inc., RESPONDENT

genta Ry. Co. v. Armentrout, 166 F. (2d) 400 and the 9th

Cireuit, Cobb v. Lepisto, 6 F. (2d) 128. But the latter Cir-

cult, 3 ty Southern Pac. Co. v. Guthrie, 186 F. (2d) 926, al-

thou) it concluded that the verdict was too high, held that

it could not reverse the action of the District Court in deny-

’ ing motion for new trial made on the ground that the verdict

was too high. The correctness of its holding in Cobb v.

Lepisto, supra, was therein considered, and in the concur-

ring opinion of Judge Bone it was stated that the Lepisto

case should be specifically overruled because ‘‘the doctrine

of that old case lacks support in pronouncements of the

Supreme Court and only one Circuit seems to have relied on

it as authority for the principle that a federal appellate

court may arbitrarily reduce the size of a verdict merely

because it regards it as excessive.”’

In undertaking to review the question of excessiveness

of damages, the 5th, 4th and 9th Circuits, recognizing the

impact of the decisions of the United States Supreme Court

and other federal appellate courts, seek to justify their right

to review this question by the ‘‘scholastic refinement’’ of

treating it as a review of whether there has been an abuse of

discretion hy the trial judge in refusing to set aside the

verdict by the jury. On this point, Judge Learned Hand,

speaking for the Court of Appeals for the 2nd Circuit in

Miller v. Maryland Casualty Co., 40 F. (2d) 463, disap-

proved as impracticable the rule that federal appellate

courts have power to review the question of excessiveness

of damages by the ‘‘scholastic refinement”’ of changing its

name to a review of whether there has been an abuse of

discretion. Just as this Court, in Tiler v. Atlantic Coast

Line R. Co., 318 U.S. 54, reasoned and concluded that under

the Federal Employers’ Liability Act the lower court can-

not permit the defense of ‘‘assumption of risk’’ by chang-

ing its name to ‘‘non-negligence,’’ so likewise in the cas. at

bar, in accordance with the long and unbroken line of de-

\ ;

FLoyrp et al., PETITIONERS, v. Com. AuTO. TRANSIT, INC., RESFONDENT 7

cisions that. federal appellate courts cannot review the

question of excessiveness of damages, it is respectfully sub-

mitted that the Court below should not be permitted to

review this question by changing its name to ‘‘abuse of

diseretion.’’ The reasoning of this Court in the Tiller case

applies with equal force in the instant case.

| If a refusal by a trial judge to grant a motion for new

‘trial made on the ground that the damages are excessive

or inadequate may ever be reviewed by appellate courts on

the ground that the trial judge abused his discretion, it

could only be reviewed under. the ‘circumstances noted in

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

474, 483, 484; namely, when the amount of damages exceeds

a statutory limit, Southern Railway-Carolina Div. v. Ben-

nett, 233 U. S. 80; or is more or less than an ns

amount, Glew’ ood Irrigation Co. v. Vallery, (C. C. A. 8)

248 Fed. 483; or is in pursuance of erroneous instructions

on the measure of damages, Chesapeake & Ohio R. C. v.

Gainey, 241 TU. S. 494; or is in clear contravention of the

instructions of the trial court, United Press Asso. v. Na-

tional Newspaper Asso., (C. C. A. 8) 254 F. 284; or the

verdict is the result of passion, prejudice or caprice,

Chicago, Rock Island € Pacific R. Co. v. Kifer, (C. A. 10)

216 F. (2d) 753, 756, 757. None of these circumstances is

present in the case at bar. Compare U. 8. v. Socony, 310

U. S. 150, 247, and Stevenson v. Hearst Consol. Publica-

tions, (C. A. 2), 214 F. (2d) 902, 911, 912.

Nor does the dicta comment by this Court in Affolder

v. New York, C. & St. L. R. Co., 339 U. S. 96, lend support

to any implication that the question of excessiveness of

damages is subject to review by federal appellate courts, as

such an interpretation would do violence to the 7th Amend-

ment to the United States Constitution.

Moreover, the question of excessiveness of damages was

not considered by the Court of Appeals in the A ffolder case

8 Futoyrn et al, Perrriowsns, v. Com. Auto. Taansit, Inc, Rusronwpant

and thus the comment by this Court could not support any

implication that such question nay be reviewed. Addition-

ally, the word “‘monstrous’’ used by this Court in the

‘Affolder case was part of a ‘‘quotation’’ taken from Car-

_ rington, K. B., 2 Wilson 244, 24 Eng. Rep. 790, which laid

down the standard for granting or denying a motion for

@ new trial by the trial judge, and bad no application to the

standard to be applied in appellate review, St. Louis South-

western R. Co. v. Ferguson, (C. A. 8), 182 F. (2d) 949, 955.

. In direct conflict with the 5th, 4th and 9th Circuits on

' both issues herein involved are the following Circuits:

First Cireuit: New York, N. H. & H. R. Co. v.

Zermani, 200 F. (2d) 240;

Second Circuit: Miller v. Maryland Casualty Co.,

40 F. (2d) 463; Powers v. Wilson, 110 F. (2d)

-960; Stevens v. Heartst Consol. Publications, 214

F. (2d) 902;

Third Cireuit: Lubeck v. William A. Jarvis, Inc.,

250 F. (2d) 285;

District of Columbia Circuit: Rankin v. Shayne

Bros. inc., 234 F. (2d) 35;

Sixth Circuit: Spero-Nelson v. Brown, 175 F. (2d)

86;

Seventh Circuit: Weathersbee v. Elgin, Joliet and

Eastern Ry. Co., 191 F. (2d) 302; Bucher v.

Krause, 200 F. (2d) 576:

Eighth Cireuit: St. Lowis Southwestern Ry Co. v.

Ferquson, 182 F. (2d) 949; Chicago, Rock Island

@ Pac. R. R. Co. v. Williams, 245 F. (2d) 397;

Tenth Cireuit: Chicago, Rock Island & P=cific R.

Co. v. Kifer, 216 F. (2d) 753.

The allowance of the petition in this case would afford

this Court the opportunity to review the problems involved

herein in their entirety and resolve the existing conflicts

among the Circuits.

ee -

Fiovn et al., Perrriowzns, v. Com. Auto. Taansrr, Inc., Resroxpenr 9

2. The decision herein violates the 7th Amendment and

is not in accord with applicable decisions of this Court: The

decision in the Court below is in direct conflict with the

rule established by a long and unbroken line of decisions of

this Court that federal appellate courts are not empowered

to review either a judgment for excessiveness of damages

or the action of a trial court in granting or denying a motion

for a new trial for error of fact, and this rule is applicable

where the ground of the motion is that the damages

awarded by the jury are excessive or inadequate.

Fairmount Glass Works v. Cui Port Coal Co.,

287 U.S. 474; .

Eastman Kodak Co. v. Southern Photo Materials

Co., 273 U. S. 359;

Southern Railway-Carolina Div. v. Bennett, 233

U.S. 80;

Herencia v. Guzman, 219 U. S. 44;

City of Lincoln v. Power, 151 U. S. 437;

N. Y., Lake Erie and Western R. Co. v. Winter,

143 U. S. 60;

Arkansas Valley Land & Cattle Co. v. Mann, 130

U. 8. 69.

This rule against appellate review is a constitutional

limitation which stems from the Seventh Amendment to

the United States Constitution, Parsons v. Bedford, 3 Pet.

433: New York Central and H. R. R. Co. v. Fraloff, 100

_ U.S. 24. Re-examination by an appellate Court of facts on

the question of damages found by a jury is a re-examina-

tion by the court in a mode not known to the common law,

and, therefore, a violation of the 7th Amendment. The

only modes of re-examining the facts known to the com-

mon law are the granting of a new trial by the Court where

the issue is tried or to which the record is properly return-

able, and an award of a venire de novo by an appellate

[ court for some error of law. The Abbotsford v. Johnson,

\

10 Fiovp et al., Perrriontrs, v. Com. Auto. Transrt, Inc., REsPonpent

98 U.S. 440, 444, 445; City of Lincoln v. Power, 151 U. S.

Another reason given for denial of review by appel-

late courts is that the granting or refusing of a motion for

a new trial is a matter resting solely within the discretion

of the trial court. Fairmount Glass Works v. Cub Fork

Coal Co., supra.

Since the decision of this Court in Affolder v. New

York, Chicago ¢ St. P. L. R. Co., 339 U. 8S. 96, there has

arisen a conflict among the circuits as to whether this Court

has departed from the rule stated in Fairmount Glass

Works v. Cub Fork Coal Co., swpra, and the above cited

eases that federal appellate courts have no power to re-

view the excessiveness of a verdict.

In Southern Pac. Co. v. Guthrie, 186 F. (2d) 926, the

Ninth Cireuit refused specifically to overrule its former de-

cision of Cebb v. Lepisto, supra, claiming that the power

to review the size of the verdict is derived from dicta com-

ment by this Court in Affolder v. New York, Chicago &

St. P. L. R. Co., supra, where the Court remarked in pass-

ing that $80,000.00 for a lost leg was “‘not monstrous’’. But

for a contrary meaning of the dicta comment of this Court

in the Affolder case, see St. Louis Southwestern Ry. Co. v.

Ferguson (Sth Cir.), 182 I. (2d) 849 and Stevenson -v.

Hearst Consol. Publication (2nd Cir.), 214 F. (2d) 902.

Obviously, there is sufficient diversity of judicial opinion to

indicate that,the effect of Affolder v. New York, Chicago &

St. P. L. Ro., supra, upon the issues herein presented is

hardly free from doubt. The allowance of the petition in

the case at bar wouid afford this Court the opportunity to

resolve the prevalent doubts and conflicts among the cir-

cuits on an important question of appellate review and

would be conducive to the fair and efficient administration

of justice.

FLoyp et al.) Perrrioners, v. Com. Auto. Transtr, Inc., Resronpent 11

3. The action of the Court below constituted an inva-

sion of the province of the jury and usurpation of the pre-

rogative of the trial judge and is in direct conflict with

Neese v. Southern Ry. Go., 350 U. S. 77: The Court below

undertook the power to review and weigh the question of

excessiveness of damages and reversed fur the reason that,

in its opinion injustice has resulted from the action of the

trial judge in exercising his discretion refusing to set aside

the jury verdict because of the size of the award. The pe-

titioners challenge hoth the power and the assumption of

the Court below. They submit that not only did the Court

below violate the rule that federal appellate courts have no

power to review the size of the verdict in a suit of the na-

ture herein, but also that the amount of the verdict in the

instant case is aaply supported by the evidence of record,

and, therefore, the action of the Court below is in direct

conflict with the recent holdings of this Court in Neese v.

Southern Ry. Co., 350 U. S. 77, and other federal appellate

courts.

The basis of damages under the applicable wrongful

death statute is compensation to the surviving husband

and ten children for the future earnings that the deceased

would have earned during her life expectancy had she

lived, reduced to its present cash value, and the value of

the services to each of the beneficiaries that deceased would

have rendered had she not met her untimely death, reduced

to its present cash value. The future earnings of deceased

was clearly supported hy the record evidence of deceased’s

age, life expectancy and earning capacity. The value of the

services that deceased would have rendered to the benefi-

ciaries, under the wrongful death statute, was clearly sup-

ported by the record evidence of deceased’s habits, dis-

position and proclivities to render tender ministrations,

unselSsh devotion and countless loving services as a wife

and mother to her husband and ten children surviving.

12 Fvroyp et al., PETITIONERS, v. Com. AUTO. TRANSIT, INC., RESPONDENT

The Court below, in concluding that the evidence fur-

nishes no sound basis for the verdict, contrary to estab-

lished principles of law and invading the province of the

jury, failed to view the case in the light most favorable to

the petitioners; it relied solely on the past actual earnings

of the deceased as conclusive that she would not have

earned more during her continued life and substituted its

personal judgment for the collective judgment of the jury |

based upon their ‘‘own observations and experiences.” And

in substituting its personal judgment, the Court below

failed to give consideration to the decreased purchasing

power of the dollar, Atlantic Coast Line v. Wells, 78 Ga.

App. 589, 52 S. FE. (2d) 496, and relied on past jury awards

in several cases, although there are other cases where the

awards exceeded the one in the instant case. Compare Fra-

ster v. Public Service Interstate Transportation Co., 1957

(C. A. 2), 244 F. (2d) 668, a case factually similar on the

issue of damages where the Court sustained an award of

$115,000.00 for the death of a parent who left surviving

his widow and three children; Lebeck v. William A. Jar-

vis, Inc., 1957 (C. A. 3), 250 F. (2d) 285, where an award

of $350,000.00 was sustained; and Lithgow v. Hamilton

(Fla.), 69 So. (2d) 776, where an award of $100,000.00 was

sustained for the death of a woman survived by a husband

and one son. And in Blue’s Truck Line v. Howell, 50 Ga.

App. 305, 200 S. EK. 500, one of the cases cited by the Court

below in comparing the jury award herein with past awards,

it is interesting to note that the $55,000.00 award therein

sustained hy the Georgia Court for the loss of the domestic

services of the deceased wife and mother in 1937, trans-

lated into present day dollar value or purchasing power,

would clearly justify the value of the services of the de-

ceased herein assessed by the jury.

Viewing the case in the light most favorable to the pe-

titioners, as it must be viewed on appeal, it becomes clear

Pe NO et a Gee On Te

FLoyp et ai., PETITIONERS, v. Com. Auto. TRANSIT, INC., RESPONDENT 13

that the judgment is amply supported by the evidence of

record. The record shows (1) that the deceased carned $1,-

500.00 per year at the time of her death; (2) that the de-

ceased was 39 years of age when she was killed, at which

time ghe had a life expectancy of 28.27 years; (3) that the

deceased was survived by her hnsband and ten children

ranging in age from 4 to 25 years; (4) that the deceased

rendered valuable domestic services to each of the peti-

tioners, consisting, inter alia, of nursing them while sick,

cooking, preparing and serving meals, sewing, cleaning,

washing, ironing, making beds, mopping and performing

manual work on the family farm and (5) all of the domes-

tic work in the home was performed by the deceased with-

out outside aid or assistance. All these were facts and cir-

cumstances for the jury in the light of their own observa-

tions and experiences to weigh and appraise in determin-

ing the aggregate amount of damages to the petitioners by

reason of the untimely death of their devoted wife and

me*her. From these facts, it is manifest that the damages

are not too high. The jury was fully justified in concluding

that from the date of death until the termination of the

deceased’s life expectancy the surviving husband and ten

children suffered a substantial Joss. Surely it is not beyond

reason to place an average value of $2.00 per day for the

loss to each of the petitioners of the valuable services ren-

dered by such an unselfish and devoted wife and mother as

the deceased. Of course, reasonable men might reach dif-

ferent conclusions—some may conclude the value to be

more, and others less, and so likewise the life expectancy.

of deceased may he reasonably concluded to be more or

less: but certainly, it was within the bounds of reasonable

inference for the jury to conclude, on the hasis of the evi-

dence of record, that the value of the services of the de-

censed, as a wife and mother, was at least, if not in ex-

cess of, an average of $2.00 per dav for each beneficiary

14 FLoyn et al., Petrrionens, v. Com. Auto. Transtr, Inc., REsPoNDENT

and that the life expectancy of deceased was at least 28.27

years, according to mortality tables, if not in excess

thereof. | ea

Thus, according to standard annuity tables, based upon

the mortality table of an approximate 29 years life ex-

pectancy of Mrs. Floyd, the present worth of an annuity

of $1.00 for 29 years is $12.278 invested at the high interest

rate of seven per cent; and mathematically computed it |

appears that the present worth of the future value of the

services of the deceased as a wife and mother at $2.00 per

day or $720.00 per year for each beneficiary amounts to

-$8,840.16 or an aggregate amount for all of the eleven ben-

eficiaries of $97,241.76, which sum at the termination of

the life expectancy period of 29 years will be entirely de-

pleted. Of course, if the computation be made on the basis

of the daily rather than the annual value of the domestic

services of the deceased the foregoing figure would be even

higher.

It should be noted that this figure does not include the

present cash value of the future earnings of the deceased

during her life expectancy which respondent conceded in

its motion for a new trial (R-16) amounts to $16,400.00,

thus making a total of $113,641.76 as the value of deceased’s

life. :

Consequently, when we consider the loss of the pres-

ent cash value of the domestic services of the deceased and

add to that the present cash value of the future earnings

of the deceased during her life expectancy had she lived,

it becomes manifest that $107,500.00 is not more than ade-

quate compensation to which the beneficiaries are entitled

under the Georgia wrongful death statute. It should be

noted that under Georgia law each of the beneficiaries is

entitled to share equally in the entire award, but if any

of the beneficiaries is guilty of comparative negligence,

his or her share must be proportionately diminished from

f

4

FLoye et al., PETITIONERS, v. Com. AUTU. TRANSIT, inc., RESPONDENT 15

the damages recoverable. Based upon such rule it appears

that the jury found the husband guilty of comparative neg-

ligence and thus, in accordance with the instructions of the

Court (R. 282, 286) reciuced the amount apportioned to him.

As pointed out before, damages in a case of this na-

ture can not be determined with mathematical certainty,

but from the foregoing facts and circumstances, it can be

fairly, logically and reasonably concluded, although fair-

minded men might reach different conclusions, that the

present cash value cf the future earnings and services of

the deceased as a wife and mother was in consonance with

the amount of damages awarded by the jury.

Under the foregoing circumstances, it is clear that the

trial judge properly exercised his discretion in refusing to

set aside the jury award and grant a new trial on the

ground of alleged excessiveness of damages. 3

In its opinion the Court below stated that it recognizes

‘that the value of the life of a mother is not determinable

solely from the evidence of the amount of money she may

have earned or the actual domestic services performed’’

and ‘‘the actual facts of each case should guide the jury

in estimating for themselves, in the light of their own ob-

servations and experiences and to the satisfaction of their

own consciences, the amount which would be fair and just

compensation for such loss’’. The foregoing quoted state-

ments of the Court are in consonance with the applicable

law, but the conclusion reached by the substitution of its

personal judgment for the collective observations and ex-

periences of the twelve jurors is clearly incongruous there-

with. .

And in support of the result reached by it, the Court

below states in its opinion that the discretion of the trial

judge is subject to review by the federal appellate court

and may be reversed for what it terms ‘“‘abnse of disere- .

tien.’” ;

16 Froyp et al., PETITIONERS, v. Com. AuTo. TRANSIT, INC., RESPONDENT

It is manifest, however, that if the appellate court has

discretion to contro! the discretion reposed in a trial judge

this really Jeaves no discretion at all in the trial judge and

thus nullifies the common law power of discretion vested in

him. If a federal appellate court can reverse the action of

a trial judge in refusing or granting a new trial in the

absence of pointing out some specification of abuse, as the

Court below failed to point out in the case at bar, on the

part of the trial judge, such as under the circumstances

noted in Fatrinount Glass Works v. Cub Fork Coal Co., 287

U.S. 474, 483, 484, namely: ‘‘ where the amount of damages

exceeds a statutory limit; or is more or less than an un-

disputed amount; or is in pursuance of erroneous instruc-

tions on the measure of damages; or is in clear contraven-

tion of the instructions of the court; or is the result of pas-

sion, prejudice or eaprice,’’ it would leave only personal

judgment of the appellate court itself as a guide for review

and the dis¢retion which respondent claims is vested in the

appellate court world smack of arbitrariness, contrary to

the menzning of the term ‘‘diseretion”’ referred to in

Lanaqnes v. Green, 282 U.S. 531, 541. x

We suhmit that the discretion reposed by the common

law ina trial judge must be exercised according to his own

understanding and conscience. On this point, Mr. Justice

Clark, speaking for this Court, in Accardi v. Shaughnessy,

347 U. S. 260, 266, in dealing with an analogous situation

wherein discretionary power is vested in an administrative

body, used the following pertinent language:

*“Tf the word discretion means anything in a.statu-

tory or administrative grant of power, it means the

recipient must exercise his authority according to his

own understanding and conscience.’’

So, likewise, in the instant case, if the discretionary

power vested hy the common law in the trial judge means

anything, it means that he, as the recipient of this power,

FLoyp et al., PETITIONERS, v. Cota. AUTO. TRANSIT, INC., RESPONDENT 17

must exercise it, not according to the understanding and

eenscience of the federal appellate court, but according to

his own enderstanding and conscience. Merely because the

Court of Appeals below is of the opinion that the jury

should have returned a verdict for a less amount or that the

trial judge should have reduced the verdict is no reason

for the Court below to reverse the District Judge under the

guise of ‘‘abuse of discretion.’’ Railroad Co. v. Fraloff,

100 U. S. 24.

Moreover, the decisions of the various circuits, with

the exception of the 5th, 4th and 9th Circuits, disclose that

where the term ‘‘abuse of discretion’’ is mentioned in con-

nection with factual questions arising on motions for new

trial generally, it is equated with non-review.

Therefore, it is respectfully submitted that the Court

below, by substituting its view of the case for that of the

jurv, invaded the province of the jury, contrary to the

Seventh Amendment to the United States Constitution, and

usurped the prerogative of the trial judge, contrary to

established principles of law. Its action was also in direct

conflict with the recent holding of this Court in Neese v.

Southern Ry. Co., 350 U. S. 77, that a federal appeliate

court may not reverse the action of a trial judge in refusing

to grant a new trial on the ground excessiveness of damages

where such action of the trial judge is not without support

in the record. Compare Snyder v. U. S., 350 U. S. 906.

18 Fvroyp et al., Perrriongrs, v. Com. Auto. TRANSIT, INC., RESPONDENT

CONCLUSION

For the foregoing reasons, this Court should grant this

petition for a Writ of Certiorari, should reverse the judg-

ment of the Court below, and should affirm and reinstate

the judgment of the District Court.

Respectfully submitted,

HENRY HAMMER,

HENRY H. EDENS,

J. H. HIGHSMITH,

GORDON KNOX, JR.,

E. WAY HIGHSMITH

LAMAR W. SIZEMORE,

Attorneys for Petitioners.

APPENDIX

INDEX TO APPENDIX

Pace

Opinion of District Judge Overruling Motion for New

S, ocubacssehwackescdnuleadsdeneneniiatesanie 21

Decision of Court of Appeals for the Fifth Cireuit .... 26

Judgment of Court of Appeals ..................:... 32

Petition for Rehearing and Brief in Support Thereof .. 33

Decision of Court of Appeals for Fifth Circuit in Peti-

' IRS err eon 41

Order Modifying Opinion and Denying Rehearing .... 43

(20)

OPINION OF DISTRICT JUDGE OVERRULING

MOTION FOR NEW TRIAL

This is an action for the alleged tortious homicide of a

wife and mother. The piaintiffs consist of the husband, De-

roy Floyd, and ten children of the deceased, Mamie Floyd,

the children ranging in age from 4 to 25 years. The defend-

ant is ‘a motor carrier engaged in the delivery of automo-

biles from assembly plants to various dealers, using an au-

tomobile tractor and trailer for that purpose.

The petition of plaintiff alleges: Deroy Floyd and his

wife, Mamie Floyd, lived on a farm adjoining and on the

southwest side of State Highway No. 15, and about 1/2

mile southeast from Hazelhurst, Georgia. On the night of

July 27, 1955, these parties decided to make a telephone

call. The nearest telephone was at a filling station just with-

in the city limits of the City of Hazelhurst. The Floyds’

means of transportation was a small Farmall tractor and

with this they drove upon the highway, proceeding towards

the telephone, the husband driving and the wife standing

on the back of the tractor. They had reached a point near

the city limits of Hazelhurst when a transportation © nit of

defendant, approaching from the rear ran into the F. mall

tractor. In the collision Mamie Floyd was thrown to the

pavement, receiving injuries from which her death resuite:..

Several acts of negligence. including violations of traffic

reguiations of the State of Georgia, were charged to de-

fendant, these being in part: Failure to control the speed

of defendant’s transportation unit so as to avoid running

into the Farmall tractor; operating a transportation unit

in excess of 50 miles-per hour; failing to reduce its speed

in approaching and going around a curve in the highway;

failing to pass the Farmall tractor being driven in the same

direction, a safe distance to the left so as to avoid hitting

the tractor, and in failing to keep a proper lookout for other

vehicles on the highway.

(21)

22 Fioyp et al., Peririoners, v. Com. Auto. TRANsIT, INC., RESPONDENT

The defendant alleged that its truck was being op-

erated at a moderate and legal rate of speed, thai its driver

had just come around a curve in the road and that the Farm-

all tractor was immediately in front of him in the middle of

the right-hand lane of traffic and that said tractor was not

equipped with a red tail light as required by the law of the

State of Georgia, and Deroy Floyd, as well as the deceased,

were charged with being negligent per se in this respect. It

was further alleged in the answer that if there was any

light burning on the rear of the Farmall tractor it was not

red but was white and was hidden by the deceased, who

was standing on the drawhar of the tractor.

The defendant also contended that the tractor was be-

ing driven by Deroy Floyd so slow as to impede traffic

and requested the following charge, which was charged by

the Court:

‘**T charge vou that no-person shall drive a moter

vehicle at such a slow speed as to impede or block the

normal and reasonable movement of traffic, except

when reduced speed is necessary for safe operation or

in compliance with I-w.”’

The evidence fully sustained the allegations of plain-

tiffs petition. It appeared that the Farmall tracter was

being driven on the right-hand side of the highway leaving

ample passing room on the left. While defendant’s driver

denied there was a light on the rear of the tractor, sev:

eral eve-witnesses testified that there was a plainly visible

licht on the rear. Plaintiffs admifted that this light did

not have a red reflector. Defendant's driver testified that

in coming around the curve his lights were thrown to the

right of the highway and he could not see the Farmall! trac-

tor until he was within about 30 feet of it. It was not dis-

puted that the curve was only a 3-aegree curve. The Sher-

iff of the county in which the accident occurred testified he

made a test on this highway at night, at the same place,

\

APPENDIX 23

under similar circumstances, and a tractor with a similar

light could be seen for at least 60 feet. The State Highway

Patrolman who investigated the accident testified that he

was familiar with the highway at this place and approached

vehicles at night, with and without lights, and they could

~ be seen 500 to 600 feet ahead. He further stated that he

could find no reason why the tractor even without light

could not have been seen within ample time to avoid run-

ning into it.

The Motion filed by defendant is on the general

grounds and in addition, the following grounds: (1) Amount

of verdict manifests bias, prejudice and passion by the

jury; (2) prejudice of jurors from Jeff Davis County, the

county in which the collision occurred, and (3) improper

argument of attorneys for plaintiffs.

As to the general grounds, the allegations of the pe-

tition» were amply supported by the evidence as above

staied.

With reference to the amount of the verdict, the laws

of the State of Georgia provide in case of homicide of a

wife and mother the surviving husband and children may

recover for the full value of the life of the deceased.

Georgia Code Section 105-1306:

‘*Homicide of wife or mother—The hushand may

recover for the homicide of his wife, and if she leaves

child or children surviving, the husband and children

‘shall sue jointly and not separately, with the right to

recover full value of the life of the decedent, as shown

by the evidence, and with the right of survivorship as

to said suit, if either shall die pending the action.’”

Georgia Code Section 105-1308 :

‘‘Full value of life of decedent, as shown by the

evidence defined.—The full value of the life of the de-

cedent, as shown by the evidence, is the frll value of

the life of the decedent without deduction for necessary

,

24 Ftoyp et al., Petrrionsas, v. Com. Auto. Transit, Inc., RESPONDENT

or other personal expenses of the decedent had he

liv 99

As applied to a wife and mother, appellate Courts of

Georgia have stated: ‘‘She sustains.go her husband and

his household a relation special and peculiar. Her place

cannot be supplied. No other is capable of filling it. The

actual fact: and circumstances of each shall guide the jury

in estimating for themselves in the light of their own v!)-

servation and experiences and to the satisfaction of their

own consciences, the amount which would fairly and justly

compensate for the loss’’.

Metropolitan Street R. R. v. Johnson, 91 Ga. 466

(3) at bottom page 471;

Standard Oil Company v. Reagan, 15 Ga. App. 572

(9).

Blue’s Truck Line, Inc., v. Harwell, 57 Ga. App.

139 (7).

Under the evidence the deceased had a life expectancy

of 28.27 years and rendered most valuable service to her

_ husband and ten children. The amount of the verdict does

not evidenve bias and prejudice on the part of the jury,

and in the opinion of the Ceurt is reasonable. .

In its méfion, defendant, by the affidavit of three per-

sons, seeks to establish prejudice on the part of the jurors

from Jeif Davis County, Georgia. These facts are disputed

by the affidavit of not only several citizens of the county,

ut by the affidavit of the jurors themselves. If prejudice

towards truck drivers existed generally among the citizens

of Jeff Davis County, then certainly defendant and its at-

torneys had ample time to discover such condition (so

quickly unearthed after the verdict) prior to the trial and

make a proper challenge to the array of jurors at the trial.

Defendant does not contend it made any effort to discover

any prejudice of the jurors prior to the trial, nor of exer-

APPENDIX 25

cising its right to question jurors on this ground at the

trial. No merit appears in this ground of the motion.

Defendant seems to indicate an undue number of jur-

ors were on the panel from Jeff Davis County. An affidavit

of the Clerk of Court shows the jurors to have been drawn

and panels made up in the regular and proper manner.

There is no evidence or knowledge of the Court to the con-

trary.

The final ground is based on alleged improper argu-

ment of J. H. Highsmith, attorney for plaintiffs. It ap-

peared from the evidence that two of the plaintiffs had

small children of their own. Mr. Highsmith stated in his

argument that a mother continued her services to a child

by helping such child with her children. On objection by

attorney for defendant the Court directed that such argu-

ment be omitted. It is a matter of common experience that

a mother does render service to a child by helping with

the children of such child. If error was committed by the

Court in directing that such argument be omitted, it might

well be error in favor of the defendant. Certainly it was

not grounds for a mistrial.

Defendant next contends that Mr. Highsmith as at-

torney for plaintiffs made the statement in his argument

**We want to stop these trucks from running the farmers

off the highway and a verdict of the full amount of $165,-

000.00 we think will do it’. The burden is one (sic) the

movant to establish the facts claimed in its motion. The

Court reporter was available but defendant did not request

the argument of attorneys reported. In the record it ap-

pears that Mr. Ringel, of attorneys for defendant, made

an objection to argument of Mr. Highsmith, of attorneys

for plaintiffs, on ground that he was arguing punitive dam-

ages. The Court asked what argument was referred to. Mr.

Ringel replied that Mr. Highsmith in substance had stated:

‘‘We want vou to stop these trucks from running the farm-

26 Fuioyp et al., Peririoners, v. Com. Auto. TRANSIT, INC., RESPONDENT

ers off the highway, and that a verdict for the full amount

of $165,000.00 we think wiil do it.’’ This was then denied by

Mr. Highsmith. The Court directed the jury ihat such issue

was not in the case and for them to disabuse their minds of

it. To establisli the statement attributed to Mr. Highsmith,

defendant submits the affidavit of its attorneys, P. S. Rin-

‘gel, T. Ross Sharpe and Alvin L. Layne, which states that

such was ‘‘substantially’’ his argument. To the contrary

Mr. Highsmith makes and submits an affidavit specifically

denying the statement attributed to him and stating what

he said. All the attorneys are reputable parties. It is im-

possible for the Court te have a recollection of statements

made in arguments to the jury. After taking into consid-—

eration the affidavits submitted on the question of this

statement alleged to have been made by Mr. Highsmith in

his argument, the motion on this ground is denied.

It appearing that the verdict rendered in the case is rea-

sonable and just, the motion for new trial is overruled on

all grounds.

So Ordered, this 16th day of August, 1956.

F. M. SCARLETT,

Judge, U. S. District Court.

Filed in Office August 17, 1956.

DECISION OF COURT OF APPEALS FOR FIFTH

CIRCUIT

November 13, 1957

Before Hutcheson, Chief Judge, and Borah and Cam-

eron, Circuit Judges.

Cameron, Circuit Judge: Mrs. Bases Floyd was fatal-

ly injured when the Farmall Tractor, on whose drawbar she

was riding, was overtaken and struck by an empty motor

vehicle carrier owned and operated by appellant, Complete

Auto Transit, Inc. The accident happened on a public high-

way near Hazlehurst, Georgia, in the nighttime on a three

APPENDIX 27

percent curve. This action was brought by the husband and

ten children (ranging from 4 to 25 years in age) of the de-

cedent under the Georgia Code, § 105-1306 and § 105-1308.

The object of the trip was to enable the decedent to reach a

telephone to call a hospital and ascertain the condition of

her brother who was ill.

The evidence showed that the deceased was 39 years of

age, with an expectancy of 28.87 years, and was working

in a garment factory earning as much as $1,500.00 per year.

In addition, she performed the duties of wife and mother

and assisted her husband in many of his farming activities.

Appellees contended that appellant was operating this

motor vehicle at an excessive rate of speed, that its driver

was not keeping a preper lookout ahead and that he negli-

gently failed to see the Farmall Tractor being operated

by the husband of the decedent in time to avoid running

into it. Appellant denied that the driver of its motor ve-

hicle was negligent as charged by appellees, and alleged af-

firmatively that the collision was caused by failure of the

tractor to be equipped with a red tail light as required un-

der Georgia law, and by the fact that the decedent was

standing on the drawbar of the tractor in such position as

to obscure whatever light there was on its rear.

The jury returned a verdict against appellant in the

total sum of $107,500.00, $7,500.00 in favor of the husband

and $10,000.00 in favor of each child, and judgment was

duly entered for that amoun. Appellant moved for a new

trial, contending that appellees’ counsel made improper

and inflammatory argument to the jury, that evidence of

an experiment conducted by the sheriff of Jeff Davis Coun-

ty was wrongfully admitted, and that the verdict was ex-

cessive as a matter of law. The appeal from the order deny-

ing this motion is based upon the same grounds. Our de-

cision will he based upon the ground that the court below

abused its dise ‘retion in refusing to set the verdict aside as

excessive, but the other two assigned errors will be dis-

cussed briefly.

During the concluding summation before the jury, At-

torney J. H. Highsmith, for appellees, was making an argu-

ment which appellant’s counsel thought would be proper

28 Fvoyp et al., PETITIONERS, v. Com. AUTO. TRANSIT, INC., RESPONDENT

only if punitive damages were sought.’ The attorneys dis-

agree as to just what appellees’ attorney did say to the

jury, and the record does not present the matter with such

clarity as to justify reversal because of the argument,

which, if made, would come within the condemnation of the

decisions of the Courts of Georgia, e. q., Southern Stages,

Inc., v. Brown, 1948, 46 S. BE. (2d) 765, and of this Court,

e. q., Aflantic Coast Line Railroad Co. v. Kammerer, 1958,

205 F. (2d) 525, and same case, 1955, 218 F. (2d) 149.

The reeord before us, insofar as it goes, tends to sus-

tain the position of appellant inasmuch as its attorney

quoted the argument of appellee as he understood it, the at-

torney to whom the argument was attributed responded im-

mediately and did net deny the statement as set forth by

nis alversary, and the court in its ruling seemed to accept

appellant's version of what had been said. But, as stated,

the question is not sufficientiv presented by the record to

justify eur reversing the indgment on that. ground.

Nor do we base our decision on the alleged error that

the court below erred in admitting the testimony of the

sheriff concerning the experiment made by him long after

the accident anda few days before the trial. A tractor had

been placed in the position occupied by the one which

had been struck by annellant’s motor vehicle, and the sher-

Hf approached Crem the direction followed by it, making

observation es to when the tractor would be visible: and

7

Drpipe Mr. ' « smith’s argument the following took place accord-

ing te ti ri:

O'Mr Ringold: low, if Your Honor please, we move for a mistrial!

because be is argu.rg punitive damages.

The Court: What is that?

“fy law’: Tie ts asking the jury to return a verdict for the full

farscort of S.C 000.00 beeause of these large trucks running people off

~ the bowioeav. Tle stated in substance ‘We want you to stop these trucks

from. roe sng the farmers off the highway, and that a verdict for the

full sricocnt of £1595,000.00 we think will do it.’

Mr. livhsmith: No, sir. We are not asking for any punitive dam-

ges. We ure not ortitled to aay punitive damages. I haven't said a word

am punitive damages.

The Court: Well. let’s stick to the facts in the case. We are not

ti: og trucks for running people off highways, Gentlemen of the jury,

just disubuse your mind of that.

Mr. Ringel: We move again for a mistrial on that ground.

The Court: Well, L everrule you on that ground. Just argue the evi-

dence. Mr. Highsmith.”

_ APPENDIX : 29

lie testified as to the distance between him and the tractor

when it became visible to him. The situation existing on the

night of the accident was not reproduced in all of its de-

tails, in that the tractor was standing still at the time of

the experiment, the light on it was indisputably a red light,

and no person wearing a dress was on the drawhar. It is

manifest, moreover, that, in such an experiment, the one

conducting it would be focusing his attention primarily on

the tractor he knew to be at the particular point and prob-

ably to the exclusion of all other objects which normally a

motorist would be called upon to include in his attention.

The objection to the testimony was probably addressed

more to its weight than to its admissibility, but such evi-

dence should be received with caution and proper explana-

tion-of its weight and worth should he given to the jury.

Our reversal of the judgment of the court below is

hased upon the error committed by the court below in deny-

ing appellant’s motion for new trial based upon the legal

excessiveness of the verdict of the jury. Recent decisions

of this Court have defined in clear terms the rule applying

to such a situation.? The rule embraces these ingredients:

the granting or refusing of a new trial is a matter resting

within the sound discretion of the trial court exercised with

regard to what is right and in the interest of justice; but

that discretion is subject to review by the appellate court

when it feels that injustice has resulted from the action of

the lower court because of its conviction that the verdict

Was excessive as a matter of law and not merely as a matter

of fact. In other words, the appellate court will declare that

the trial court has abused its discretion if the verdict is so

vress Or inordinate in amount as to be contrary to right

renson; ana if the evidenee furnishes no sound basis for

the verdict, it is the inescapable duty of the appellate court

te hold that the verdict was excessive as a matter of law.

We hold that such is the case here. And such a hold-

ing is in line with the Georgia statute, which forbids a

court to interfere with the jury’s action in fixing the dam-

* See, ¢. g., Commercial Credit Corp. v. Pepper, 1951, 187 F. (2d)

‘l, 75-76; Sueray Oil Corp..v. Allbritton, 1951, 188 F. (2d) 751; and

Whiteman v. Fitrie, 1955, 220 F. (2d) 914, 920-921. :

\

30 FLoyp et al., PETITIONERS, v. Com. AuTO. TRANSIT, INC., RESPONDENT

age ‘‘unless the damages are . . . so excessive as to justify

the inference of gross mistake or undue bias.’’*

The privilege of having the wife and mother with them

in the home was one which was incalculably precious to

the husband and children and was an element the jury was

_ justified in considering. But such relationships are not

readily evaluated by dollar standards, and the Courts of

Georgia have not emphasized them in defining what is in-

cluded in the terms of the Georgia statute‘ granting the

right to recover ‘‘the full value of the life of the decedent

....’ In an old case,* the court said that the place of a

wife cannot be filled and that the actual facts of each case

should guide the jury in estimating for themselves, in the

light of their own observation and experience and to the

satisfaction of their own consciences, the amount which

would fairly and justly compensate for such a loss.

A later case * stressed the earning capacity and loss of

services as the important items in a suit for the death of

a wife and mother. But, subsequently, * the court reeognized

that-the value of domestic services rendered by a wife

could include ‘‘the value of many services incapable of

exact proof.”’

The ‘full financia] value of the life of the deceased”

was stressed in another case * in a decision confined almost

entirely to loss of services as the chief element of recovery

for the death of a wife and mother: while a broad base of

recovery for the intangibles of the wife-mother relationship

according to ‘‘ali the facts and circumstances of the family

and the living conditions’’, was recognized in a more recent

* Georgia Code, § 105-2015.

*The Georgia Statutes, Code $$ 105-1306 and 105-1308, permit “the

right to recover the full value of the life of the decedent . . . without

deduction for necessary or othey personal expenses of the decedent had

[s]he lived,” but the Georgia decisions brought before us do not point

definitely to the meaning of these words.

5 Metropolitan Street Railway Co. v. Johnaor S. Ct. Ga. 1893, 91 Ga.

466, 18 S. E. 816. The court was not dealing w..a the statutes here in-

volved, but with damages recoverable by a husband for disabling personal

injuries received by his wife.

® Standard O:l Co. et al., v. Reagan et al. (C. A. Ga., 1915), 84 S. F.

69.

* Central of Georgia Railway Co. v. Keating (C. A. Ga., 1932), 165

S. E. 873, 878.

* Shermer v. Crowe, 186 S. E. 224, 228.

APPENDIX 31

case,’ but a judgment awarding the husband and children a

verdict was reversed because the court charged that, in de-

termining ‘‘the value of the services of the deceased as a

wife and mother, as well as a worker, the jury may consider

all the facts and circumstances of. the case.’’ The reason

given was that the charge was not proper under the plead-

ings and evidence.

When the same case came on for further hearing, *°

the Court of Appeals reiterated that the value of the life of

a wife and mother could not be measured by purely mone-

tary standards, stating that the matter was entirely for

the jury. The Court affirmed a verdict for $35,000.00 which,

by voluntary act of the plaintiff, had been reduced to $15,-

000.00.

The last word from a Georgia appellate court was

spoken hy the Court of Appeals in Swift & Co. v. Lawson

(C. A. Ga., 1957), 97 S. E. (2d) 168, where the Court set

aside, as excessive as a matter of law, a verdict for $8/),-

000.00 rendered to .a wife for the wrongful death of her

husband. At the time of his death he was thirty-eight vears

old and his expectaney was practically iWentical with that

of the decedent here, and his earnings were shown to he

more than double those claimed in the case before us. The

Court discussed a number of Georgia cases and concluded

that the jury had a wide latitude in the fixing of damages soa

long as the result they reached was ‘fair and reasonable

and as authorized by the evidence.’’

Appellees have not cited us to any case justifying the

award of any such amount as that here, but they content

themseives with repeating in many different wavs the rule

we kere recognize, that the value of the life of a mother is

net determinable solely from the evidence of the amount of

nhionev she may have earned or the actual domestic service

performed, and that the case is definitely an exception

where an appellate court will reverse the action of 2 trial

* The case is reported three times: Blue's Truck Line, Inc.. v. Har-

well iC. A, Ga., 19387), 194 S. E. 399, 402: reversed by Sup. Ct. of Ga.,

1v3s, 199 S. E. 729; and sce fn. 10 infra.

© Blue’s Truck Line, Inc.. vo Harwell et al. (C. A. Ga., 1938), 200

S. E. 500, 502.

32 Foy et al., PETITIONERS, v. Com. AuTO. TRANSIT, INC., RESPONDENT

court in passing on a ‘motion for a new trial challenging

the size of the verdict.

’ Appellants have listed eight Georkia cases, which they

assert to be all they have been able to find where verdicts

have been permitted to stand in cases involving death of a

wife and mother. These amounts run from $5,000.00 to $15,-

000.00, and appellants take the position that the sole ques-

tion involved is the value of the decedent’s life, the number

of children surviving, the character of support to which

they have been accustomed and like considerations being of

no moment. Cf. Central of Georgia Railroad Co. v. Rouse

(S. Ct. Ga.), 3 Si E. 307; Macon Consolidated Street Rail-

road Co. v Barnes (C. A. Ga.), 38 S. E. 756; Engle v. Finch

(S. Ct. Ga.), 139 S. E. 868; and Central Truckaway System,

Inc., v. Harrigan (C. A. Ga.), 53 S. E. (2d) 186.

It is not necessary for us, however, to assess or eval-

uate the various ingredients which the Georgia Courts rec-

ognize as entering into the concept of the value of dece-

dent’s life. Taking all of these ingredients into considera-

tion, we hold that there is no justification for a judgment

based upon a verdict in the amount fixed by the jury in this

case, and that the verdict is eycessive as a matter of law

and is not sustained by any evidence or authority.

The pr sete of the court below is Tev ersed and the

case remanded for a new trial.

(Reversed and remanded.)

JUDGMENT

Extract from the Minutes of November 13, 1957

No. 16424

COMPLETE AUTO TRANSIT, INC.

versus

3 DEROY FLOYD ET AL.

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Georgia, and was argued by counsel;

: APPENDIX 33

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be, and the same is hereby, re-

versed; and that this cause be, and it is hereby, remanded

to the said District Court for a new trial; ;

It is further ordered and adjudged that the appellee,

Deroy Floyd, and others, be condemned to pay the costs of

this cause is this Court for which execution may be issued

out of the said District Court.

PETITION FOR REHEARING

Come now Deroy Floyd et al., appellees in the above

entitled cause, in which, during the present term and on

- November 13, 1957, a decision was rendered reversing the

judgment of the lower court, and petition the court to

grant a rehearing therein, upon the following grounds:

_ 1. This Court holds the verdict rendered by the jury

and approved by the trial court excessive as a matter of

law, basing this conclusion on the ground that ‘‘it is not

sustained by any evidence or authority.’’ The decision does

not indicate what evidence and authority would be required.

If the laws and decisions of this State are applicable the

verdict is supported by authority and evidence.

The Code of Georgia provides that appellees, compris-

ing the surviving husband and ten children of the deceased

wife and mother are entitled to recover the full value of

her life.t Under the decisions of the Court of Appeals and

Supreme Court of Georgia there is no standard set to de-

termine the value of the services rendered by the wife and

mother, but it is a question left to the jury to decide, after

proof of services, based on their observation and experience

to the satisfaction of their own consciences.’

The record discloses evidence of the following personal

services rendered by the deceased to appellees (Testimony

‘1 Georgia Code, §§ 105-1306, 105-1308. :

2 Metropolitan Street R. R. Co. v. Johnson, 91 Ga. 46€ (18 S. E. 816) ;

Standard Oil Ce. v. Ragan, 15 Ga. App. 571 (84 S. E. 69); Pollard v.

Kent, 59 Ga. App. 118 (200 S. E. 542); Blue’s Truck Line, Inc., v. Har-

well, 57 Ga. App. 136 (194 S. E. 399); Ga. Ry. Power Co. v. Shaw, 25

Ga. App. 146 (3) (102 S. E. 904); Western & Atlantic R. R. Co. v.

Jarrett, 22 Ga. App. 313 (2) (96 S. E. 17°.

34 FLoyp et al., PETITIONERS, -. Com. AUTO. TRANSIT, INC., RESPONDENT

of Deroy Floyd, the husband, R. pp. 162-165): There were

twelve children born of my marriage to Mamie Floyd. Ten

are living. They range in age from four years to twenty-

five years. My wife worked in the slip factory in Hazel-

hurst, having started working there in June, 1949. She did

the housework and he!ped me on the farm. The housework

consisted of making beds, cooking, washing, ironing, patch-

ing, mopping and yard sweeping. She took care of the chil-

dren. When they were sick at night she got up with them.

She-nursed them while they were sick. She got them ready

for school. She did all the things that the mother of children

do. In addition, she helped me with the farm work. She was

always right there to he'» me do anything that I had to do.

She would hoe or plow o: do anything that became neces- ©

sary to help me. She took the job at the slip factory because

there was so many of us it looked like we couldn’t make it

on the farm on shares and she got out to help me meet the

grocery bill. She went to work at the slip factory at 8:00

o’clock in the morning. Before going to work she got break-

fast for the family and the youngest children ready for

school. She worked at the slip factory until 4:30. When she

came home frequently she put out her washing in the after-

noon, There was ‘always something she could find to do,

such as making shirts and little dresses. She cot the supper

for the family and then she got the vounger children ready

for bed. She worked and helped with the farm work, too,

like putting in tobacco or anything that we were not

through with when she got in she would help me. It was

admitted that the deceased had a life expectancy of 28.87

years,

The laws of this State authorizing recovery by appel-

lees for the full value of the life of the deceased, this value

. being a jury question after evidence of death, status of ap-

pellees as hushand and children and services rendered by

deceased, all of which the evidence did show, the conclusion

reached by this Court that the verdict is not sustained by

any evidence or authority * is not supportable.

2. There being ample evidence of services rendered by

the deceased to appellees, her husband and children, and

3 All emphasis in this petition supplied.

APPENDIX 35

a loss to appellees of such services for a period of 28.87

(the life expectancy of deceased) and the question of value

being a jury question, it cannot be legally said that the

verdict is without support in the record.

The verdict having support in the record, the decision

of this Court is directly contrary to the holding of the Su-

preme Court of the United States in the case of Neese v.

Southern Railway Company, 350 U.S. 77, which holds the

test for determining whether or not the court below abused

its discretion in approving the amount of the verdict is

whether the trial court’s action was without support in the

record. :

It also conflicts with this Court’s opinions rendered in

the cases of Texas & Pacific Railway Company v. Buckles,

932 F. (2d) 257 (17); Kansas City Southern Ratlway Com-

pany v. Justis, 232 F. (2d) 267 (7).

3. The record showing appellees entitled to recover the

full value of the life of the deceased as determined by the

value of proven services rendered by deceased to appel-

iees, the question of the value of such proven services being

one for the jury, and there being no evidence from which

hias or prejudice on the part of the jury could be shown

or inferred, the decision of this Court reversing the judg-

ment of the trial court based on the verdict of the jury,

is a denial of appellees’ constitutional right to have the

matter determined by a jury, such right being provided for

in the Seventh Amendment to the Constitution of the

United States as follows: :

“Trial by Jury in Civil Cases—In Suits at com-

mon law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shalthe pre-

served and no fact tried by a jury shall be otherwise

re-examined in any court of the United States, than

according to the rules of the common law.’’

To have this Court determine the amount the jury may

return for the value of the life of the <ieceased wife and

mother of appellees by limiting such amount, when the ver-

dict returned is supported by the record, is a deprivation

A

36 FLovp ct al., Perrriongrs, v. Com. Auto. Transit, Inc., ResronpEent

of appellees’ conetitutional rights as above set forth, to

the prejudice and injury of appellees.

4. This Court in its opinion, referring to the case of

Blue’s Truck Line, Inc., v. Harwell, 57 Ga. App., p. 136 (194

S. E. 399, 402), a case decided in 1937 bolding a verdict for

$35,000.00 for the death of a wife and mother was not ex-

cessive, stated :

eee oe judgment awarding the hushand and

children a verdict was reversed because the court

charged that, in determining ‘the value of the serv-

ices of the deceased as a wife and mother, as well as

a worker, the jury may consider all the facts and cir-

cumstances of.the case.’ The reason given was that

the charge was not proper under the pleadings anid

the evidence.”’

This is an erroneous statement with respect to the hold-

ing of the Georgia Court of Appeals, that court holding

exactly to the contrary at page 140 of the decision in the

following language : 7

‘*The charge of the court to the jury that ‘in de-

termining the value of the services of the deceased

as a wife and mother, as well as a worker, the jury

may consider all the facts and circumstances of the

case’ was not subject to the objection that it was not

authorized by the pleading and there was no evidence

of any service performed by the deceased as a wife

and mother.”’

As shown, the Georgia Court of Appeals approved the

charge of the trial court in this connection rather than

reversing the case on account of such charge.

5. The decision of this Court recognizes that appellees

are entitled to recover-full value of the life of the deceased

wife and mother, that such a life ineludes many services

incapable of exact preof, that the value of such services

is a jury question, then without stated reason, reaches the

unsupported conclusion that the verdict is not sustained

by any evidence. It leaves appellees and the trial court,

to whom this case is remanded for another trial, totally

in the dark as to what evidence this Court would accept as

APPENDIX 37

supporting a verdict for the death of a wife and mother.

If by its decision this Court meant to hold that the evi-

dence would support a verdict in some amount, but not

the amount rendered, then, still, appellees, the jury, and

the trial court judge must guess, without guidance from

this Court, at the size of verdict this Court would allow

to stand.

May we suggest that under such conditions it is very

possible that the case would have to be retried many times,

with burdensome expense to all parties, as well as much

time consumed by the trial court, in order to arrive at a

verdict that would fit this Court’s conception of a proper

verdict to be rendered for the value of the life of a de-

ceased wife and mother. .

WHEREFORE, on the grounds stated petitioners pray

that the decision of this Court rendered on November 13th,

1957, he reviewed and the judgment of the trial court af-

firmed, or, in the alternate, that a rehearing be granted in

said matter.

J. H. HIGHSMITH,

GORDON KNOX, JR.,

-E. WAY HIGHSMITH,

Attorneys for Appellees.

Certificate of Counsel

I, the undersigned, J. H. Highsmith, of counsel for ap-

pellees, do hereby certify that the foregoing petition for

rehearing is presented in good faith and not for delay.

J. H. HIGHSMITH.

BRIEF IN SUPPORT OF PETITION FOR REHEARING

_ “THE INJUSTICE OF JUSTICE”

The decision of this Court holds that as a matter of

law the life of a wife and mother for a period of 28.87

years does not have the value of $107,500.00. Appellants no

doubt applaud this as justice. Since appellees know of de-

cisions of the circuit courts sustaining larger verdicts, not

only for loss of life, but for loss of limbs and for personal

38 Fvoyp et al., Peririoners, v. Com. AuTo. TRANSIT, INC., RESPONDENT

injuries not causing death; is it cause to wonder that they

may exclaim ‘‘The injustice of justice :”’

Some of the larger verdicts are as follows:

$297 ,500.00—Extensive and serious injuries (details not

given in reported decision)

Woodington v. Pa. RR. Co., 236 F. (2d) 760 (C. C. A. 2).

$225,000.00—Loss of arms and legs

Union Pac. RR. Co. v. Johnson, 223 F. (2d) 427 (C. C.

A. 9).

$150,000.00—. Injuries to shoulder and leg—disability

Houlihan v. Turner Constr. Co., 240 F. (2d) 4385 (C. C.

A. 1).

$126,780.00—Loss of both arms

Blue Ridge Rural E lee. Coop. v. Byrd, 238 F. (2d) 346

(C.C. A. 4).

$125,000.00——Loss of leg

Cereste v. N Y.,N.H. & H. RR., 231 F. (2d) 50 (C. C

A. 2).

$125,000.00 Crippled for life

U.S. vu. Luehr, 208 F. (2d) 1388 (C. C. A. 9).

$141,500.00— Death $116,500.00—pain and suffering $25,-

000.00

NOY. NH. & H. RR. Co. @. Zermani, 200 F. (2d) 240

(C.C. A. FT).

$114. 295.00-—Injury to baek

EL. Farmer Co. v. Hook, 239 F. (2d) 547 (C. C. A. 10).

As above noted verdicts substantially larger than the

verdict in the instant ease have been held not excessive,

such verdicts being for loss of limbs, personal injuries of

various kinds, and death. How may it be explained, par-

ticularly to lavmen, that a verdict of $297,500.00 for dis-

abling persenal injuries is not excessive but $107,500.00 for

the value of the life of a wife and mother to a hushand and

ten children is excessive; that arms and legs are worth

$225,000.00 but a wife and mother is not worth half that

sum: that the disability to a man may be legally valued at—

$150,000.00 but the value of a woman to her family is legally

less than $107,500.00; that a wife may recover $141,500.00

for the less of her hushand, but that a husband and ten

ail

APPENDIX 39

children may not recover $107,500.00 for the loss of the wife

and mother; and finally, that partial loss of use by injury of

a man’s back may be valued at $114,275.00, but a $107,500.00

value for the total and permanent loss of his wife to a man.

and his children is legally excessive? All of this may be

understandable to astute legal minds, but may not the

legally unlearned husband and children with cause ery of

‘*the injustice of justice?’’ Even legally trained minds may

pause to wonder.

EXCESSIVENESS

The court in its decision on the question of excessive-

ness refers to the cases of Commercial Credit Corp. v.

— Pepper, 1951, 187 F. (2d) 71, 75-76; Sunray Oil Corp v.

Allhritton, 1951, 188 F. (2d) 751; and Peenme v. Pitrie,

1955, 220 F. (2d) 914, 920-921. |

These decisions were etn to the decision of Neese v.

Southern Ry., 350 U.S. 77, 76 S. Ct. 131.

Be that as it may, the decisions of this Court in the

eases above referred to hold in substance that the verdict

may be excessive as a matter of law (1) if without sup-

port in the record, (2) if so monstrous or inordinate in

amount as to find no support in right reason.

Seemingly, the decision of excessiveness in the instant

ease is hased on the first proposition, ‘‘withont support

in the record,’’ since it concludes ‘‘the verdict is exces.

sive as a matter of Jaw and is not susteined by any evi-

dence or authority.” This conclusion is in the face of a’

prior statement in the decision, ‘‘we here recognize that

the value of the life of a mother is not determinable solely

from the evidenee of the amount of money she may have

earned or the actual demestic services: performed.’’ It is

assumed that the Court recognizes, that evidence of ex-

tensive. services rendered by the deceased wife and mother

were shown, and the Georgia rule that the value of. such

services are to be determined by the jury in the light of

their own observation and experience and to the satisfac-

tion of their own consciences. If these two indisputable

facts are admitted then the conclusion that the verdict is:

not sustained ‘‘by anv evidence or authority’’ is of itself

without support.

40 FLoyp et al., Perrriontas, +. Com. Auto. Teanstt, Inc., REsrONDENT

If we follow the decisions cited by this Court, rendered

prior to Neese v. Southern Railway, supra, the other basis

on which the decision of excessiveness may. be placed is

that it is ‘‘so monstrous or inordinate in amount as to find

no support in right reason.’’

The writer would certainly not assume, or think, that

the decision or excessiveness was placed on such a base,

since, so placed, it would necessarily be an indictment of

the twelve men of the jury who found such a verdict, and

the trial judge who approved it, as acting without right

reason. Such an indictment would be without truth. In

this day of the devaluated dollar and high prices, con-

tinually spiraling higher, a statement to the effect that a

value of $107,500.00 placed on 28.87 years of the life of a

wife and mother is withéut support of right reason, seems

a statement that might well be described as monstrous and

inordinate. ,

Recently, and particularly since Neese v. Southern Rail.

way, this Court has followed the rule that on the ground

of excessiveness it would not reverse a judgment based on

a verdict of a jury unless ‘‘without support in the rec-

ord.” This would seem the proper rule. The determination

_of ‘‘support”’ in the record is one of fact. The question of

an amount of the verdict being monstrous or inordinate is

one of opinion on which minds will differ. As the writer

interprets the holdings of the Supreme Court it is within

the province of the trial court to decide (1) whether ver-

dicts are supported by the record and (2) whether reason-

able; the province of the circuit courts to determine whether

such verdicts are supported by the record.

If this is not the rule, the Circuit Courts of Appeal may

-always reverse verdicts of impartial injuries, approved by

the trial court, where no other error appears in the record,

by deciding the amount of the verdict is monstrous or in-

ordinate.

Thus may be circumvented the holdings of the Supreme

Cour: and rights of parties to trial by jury as provided by

the Seventh Amendment to the Constitution.

APPENDIZ 41

We submit that this case should be reconsidered and

the judgment affirmed. |

J. H. HIGHSMITH,

GORDON KNOX, JR.,

E. WAY HIGHSMITH,

Attorneys for Appellees.

DECISION OF COURT OF APPEALS FOR FIFTH

CIRCUIT ON PETITION FOR REHEARING

(January 14, 1958).

Before Hutcheson, Chief Judge, and Borah and Cam

eron, Circuit Judges. |

Per Curiam: In their petition for rehearing, appellees

challenge the aceuracy of our construction of the decisions

of the Georgia Courts in Blue’s Truck Line, Inc. v. Harwell

et al,” as reflected in the language of two paragraphs of our

opinion filed November 13, 1957.° A reading of the opinion

in the Harwell case, supra, as reported in 57 Ga. App. 136,

140, convinces us that appellants are correct, and the two

paragraphs quoted in Note 9 supra are excised from the

opinion, together with Notes 8, 9 and 10 accompanying those

paragraphs. Jn lieu thereof the following paragraph and

notes are substituted:

sell, Ch a, BOL ET Oe tae tant nee Trach Line, Ive. s. Her-

Court of ia, 1938, 199 739; which the Court of Ap-

peals of affirmed the judgment of the court which it had

reversed in the report of the case first listed—200 S.

‘full financial value of the life of the deceased’ was stressed

case services

the chief element of recovery for death of a wife and mother;

while a broad base of recovery for the intangibles of the wife-mother re-

lationship according to ‘all the facts and circumstances of the family and

Che BONS Seeiene. a anne an & toate verent cane; but © judy.

ment awarding the husband children a verdict was reversed because

yo Serene, ‘See calle of Ge

deceased as a wife mother, as as @ worker, the jury may con-

i

|

if

42 Fvoyp et al., Peririongers, v. Com. Auto. Trane’ ‘nc., ResPonperr

‘*The ‘full financial vale of the life of the deceased’

was stressed in another case * in an opinion discussing

damages arising from loss of services as the chief ele-

ment of recovery for the death of a wife and mother.

But a broad nase of recovery for the intangibles of the

wife-mother relationship according to ‘all the facts and

circumstances of the family and the living conditions’

was recognized in the decisions of Blue’s v. Harwell,

supra. In that case the jury had awarded damages for

the death of a wife in the sum of $35,000.00 and the

Court of Appeals refused to set it aside as being the

product of gross mistake or undue prejudice or bias on

the part of the jury.” ™

The excised paragraphs from the original opinion were

based upon the report of the Harwell case (57 Ga. App.

136, 140) in 194 S. E. 399, 402,"* and the opinion as originally

written faithfully reflected this holding. But the same para-

graph, as published in the Georgia Rerorts, contains lan-

guage reflecting a meaning which is the opposite of that set

forth in the Southeastern Reporter.

With this modification of the opinion, it is ordered that

the petition for rehearing be, and it is DENIED.

al | wt eee Shermer v.

11 Blue's Truck Line, et, Harwell et al. (C. A. Ga., 1938), 200

And the eighth syllabus of the case as reported in 194 S. E. 400

reads as follows

“In action for derth of

APrrenpix 43

ORDER MODIFYING OPINION AND DENYING

REHEARING

Extract from the Minutes of January 14, 1958

No. 16424

COMPLETE AUTO TRANSIT, INC,

versus

DEROY FLOYD, ET AL.

It is ordered by the Court that the opinion of this Court

rendered on November 13, 1957 in this cause be, and the

same is hereby, modified in accordance with the opinion

this day rendered; and that the petition for rehearing be,

and it is hereby denied.