305 F.2d 226 (10th Cir. 1962), 6765, Barnes v. Smith

Docket Nº:6765-6768.
Citation:305 F.2d 226
Party Name:William Gordon BARNES, Administrator of the Estate of Daniel W. Barnes, deceased, Elsie e. Barnes, deceased, Daniel W. Barnes, Jr., deceased, and Sandra M. Barnes, deceased, Appellant, v. Frankie Lou SMITH, Ancillary Executrix of the Estate of Houston Smith, Jr., deceased, Appellee. Bruce G. JOLLY and Susan Ann Jolly, a minor, by Bruce G. Jolly, he
Case Date:June 04, 1962
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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305 F.2d 226 (10th Cir. 1962)

William Gordon BARNES, Administrator of the Estate of Daniel W. Barnes, deceased, Elsie e. Barnes, deceased, Daniel W. Barnes, Jr., deceased, and Sandra M. Barnes, deceased, Appellant,

v.

Frankie Lou SMITH, Ancillary Executrix of the Estate of Houston Smith, Jr., deceased, Appellee.

Bruce G. JOLLY and Susan Ann Jolly, a minor, by Bruce G. Jolly, her father and next friend, Appellants,

v.

Frankie Lou SMITH, Ancillary Executrix of the Estate of Houston Smith, Jr., deceased, Appellee.

Bruce G. JOLLY, Administrator of the Estate of Gloria Jolly, deceased, Appellant,

v.

Frankie Lou SMITH, Executrix of the Estate of Houston Smith, Jr., deceased, Appellee.

Frankie Lou SMITH, Executrix of the Estate of Houston Smith, Jr., deceased, Appellant,

v.

Gerald Wayne BARNES, a minor, by William Gordon Barnes, his brother and next friend, Appellee.

Nos. 6765-6768.

United States Court of Appeals, Tenth Circuit.

June 4, 1962

Page 227

William A. Sloan, Albuquerque, N.M. (Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., and William C. Briggs, Albuquerque, N.M., were with him on the brief) for Frankie Lou Smith, Executrix of the Estate of Houston Smith, Jr., deceased.

A. D. Williams and Glen Houston, Hobbs, N. M. (Williams, Johnson & Houston, Hobbs, N.M., and Richard L. Wastlake, Midland, Tex., were with him on the brief), for William Gordon Barnes, and others.

Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.

LEWIS, Circuit Judge.

These four cases, consolidated both for trial and on appeal as containing common questions of fact and law, resulted from a highway disaster involving the collision of a pick-up truck transporting a family of eight and a late-model Cadillac

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containing two men. The accident occurred July 2, 1960, at a point about eight miles east of Tatum, New Mexico, and caused the deaths of both the driver of the Cadillac, Houston Smith, Jr., and the driver of the pick-up, Daniel W. Barnes, and also the death of four passengers in the pick-up, Mrs. Barnes and three of the Barnes' children, Daniel, Jr., Sandra and Gloria. A fourth child, Gerald, suffered massive injuries and the remaining passengers, the son-in-law Bruce G. Jolly (husband of Gloria) and the infant Susan Jolly, suffered severe injuries.

The causes were tried in the United States District Court for the District of New Mexico after removal of Nos. 6765 and 6766 from the New Mexico state court and transfer of Nos. 6767 and 6768 from the United States District Court for the Western District of Texas. Jurisdiction in each case was based upon diversity of citizenship. In each case the executrix of the estate of Houston Smith, Jr., was defendant below.

After trial to a jury verdicts were returned favoring plaintiffs in each instance and judgments upon such verdicts were entered as follows:

In No. 6765:

For the death of Daniel

W. Barnes ................ $ 25, 000

For the death of Elsie E.

Barnes ..................... 20, 000

For the death of Daniel

W. Barnes, Jr............... 15, 000

For the death of Sandra

M. Barnes .................. 15, 000

In No. 6766:

Bruce G. Jolly (injuries

and expenses).............. 50, 000

Susan A. Jolly (injuries

and expenses)............... 1, 000

In No. 6767:

For the death of Gloria

Jolly ...................... 25, 000

In No. 6768:

Gerald W. Barnes (in

juries and expenses ....... 400, 000

The plaintiffs appeal from all judgments except those for Bruce G. Jolly and Gerald W. Barnes. The defendant appeals from the judgment in favor of Gerald W. Barnes. Since the latter appeal contains but a single contention, a claim that the judgment is excessive in amount, we give it first attention for it reaches the subject matter of a contention common to the remaining appeals, that is, that those awards are inadequate. The trial court denied new trials after giving the fullest of consideration to the claims of the parties respecting both excessiveness and inadequacy.

Although much has been written and concern voiced over the power and scope of federal appellate review of the allowable amount of jury awards in unliquidated tort claims, 6 Moore's Federal Practice, 59.08(6), it is established by precedent in this circuit, 1 and others, that the trial court's refusal to grant a new trial upon such ground may be reviewed and set aside if an abuse of discretion appears clear. However, absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury's determination of the fact is considered inviolate. Snowden v. Matthews, 10 Cir., 160 F.2d 130; Chicago, Rock Island & Pacific Railway Co. v. Kifer, 10 Cir., 216 F.2d 753. Such rule, tempered as it is by legalistic reasoning, is considerably dulled by the fact that in most instances the only guide available upon review to test the properness of an award is a comparison of amount with injury. This comparison must be made but in the case at bar is not the sole standard upon

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which the trial judge relied in refusing to set aside the jury's verdicts.

The judgment entered in favor of Gerald W. Barnes is for the sum of $400, 000. No larger judgment for personal injuries has ever come to the attention of this court. Nor have we had occasion to consider a case where more severe injuries were involved. At the time of the accident Gerald was twelve years old and normal in mental and physical development. He has now been completely destroyed as a human being. Severe and permanent brain injuries have resulted in loss of memory, loss of intellectual functioning, loss of orientation in space and time, difficulty in chewing, swallowing, talking and breathing, partial paralysis and injury to both legs and arms, loss of control over elimination processes, and many other difficulties. He is however aware both of his former normalcy and his present helpless and hopeless condition. The most optimistic prognosis is that he may, with extended therapy, one day regain the mental status of twelve years. It is indeed hard to conceive of a more tragic existence. And it would be unrealistic to deny the inevitable emotional impact that the boy's condition, the sight of him, the total circumstances of the accident must have upon those charged with evaluating the damages.

It is not the duty of jurors to set aside, even if it were possible, all the decencies of human emotion when called upon to decide controversy. It is the duty of jurors not to allow emotion to overcome fact, not to allow sympathy to overcome reason, not to allow desire for result to overcome justice. The trial court recognized this case as one where complete detachment would be unnatural and natural pity could dominate the course of the trial. The court concluded however that the verdict was the result of conscientious deliberation and the admirable performance of duty. In denying the motions for new trial the court stated:

'The question in every case is what is a just and fair verdict, and that leads me then to think, as I have since this verdict was rendered, what is just compensation in this case. What is fair compensation? I have always had trouble, as I said, in defining that term to a jury, because as a matter of fact, there is no yardstick...

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