# Petition for Writ of Certiorari — Floyd v. Complete Auto Transit, Inc. (No. 825) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0169%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text 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