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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Page 226

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

Page 228

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...

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