Mercer v. Theriot

• Decision Date: 09 May 1963
• Docket Number: No. 19068.,19068.
• Parties: Mrs. Wanda MERCER, Appellant, v. Paris THERIOT, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

316 F.2d 635 (1963)

Mrs. Wanda MERCER, Appellant, v. Paris THERIOT, Appellee.

No. 19068.

United States Court of Appeals Fifth Circuit.

March 14, 1963.

Rehearing Denied May 9, 1963.

H. Alva Brumfield, Baton Rouge, La., Sylvia Roberts, New Orleans, La., for appellant.

Stanley E. Loeb, New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON, RIVES, CAMERON, JONES, BROWN, WISDOM, GEWIN, and BELL, Circuit Judges, En Banc.

WISDOM, Circuit Judge.

In the early hours of the morning of December 19, 1955, Willie B. Mercer's body was found face down on the side of Highway 1 on Grand Isle, Louisiana. The coroner's certificate shows that he died about 7:30 p. m. December 18. Tire marks leading to the body indicated that Mercer was run over while he was on the shoulder of the road. Around 7:30 p. m. on December 18 Paris Theriot, the defendant, had left Fisherman's Bar on Grand Isle, taking Highway 1 to return to his home in Golden Meadow. The chronology and the fact that he had been drinking in Fisherman's Bar since one o'clock pointed to Theriot. In addition, the investigating officers recalled that Theriot had run over and killed a pedestrian in each of two accidents twenty or twenty-five years ago. The police investigation disclosed that the right front fender of Theriot's automobile was dented and the rim of the right headlight missing. There was also a large dent on the hood of the car. Theriot gave two different explanations for the damage to his car: he said that he had run into a cow and he said that a four by six piece of lumber had dented the hood when he ran into a lumber truck. A deputy sheriff found a blue mark on the hood; Mercer had been wearing blue denim overalls. Another deputy found "hair-like substances" underneath the car, a towel bearing reddish stains, and a white powdery substance on the car that appeared to be soap powder from a recent carwashing. The officer took scrapings of the blue spot, the hair-like substances, and the white powder and placed these in envelopes. The envelopes, towel, and certain other articles were brought to the office of the Sheriff of Jefferson Parish and placed in the "evidence locker." This evidence disappeared before the trial and before any of it could be analyzed.

The decedent's wife brought a wrongful death action against Theriot resulting in a jury verdict in her favor for $25,000. On appeal, this Court, Judge Hutcheson presiding and writing the opinion for the Court, unanimously decided that the judgment should be reversed with directions to enter a verdict for the defendant. Theriot v. Mercer, 5 Cir., 1959, 262 F.2d 754; certiorari denied, 360 U.S. 914, 79 S.Ct. 1293, 3 L.Ed.2d 1263 (1959). The Court pointed out that highly prejudicial testimony, which should not have been admitted, and inflammatory trial tactics of the plaintiff's attorney had the effect of denying the defendant a fair trial.¹ The Court rested its decision on insufficiency of the evidence to support the verdict: there was a "complete absence of any evidence, circumstantial or otherwise, that Theriot's car struck the deceased or that Theriot was in anywise negligent". 262 F.2d at 759. Nevertheless, the Court felt that the plaintiff should be given an opportunity to better her presentation of the case by producing additional evidence — if she could — to justify a new trial. The mandate therefore directed the district court

"* * * to enter a judgment for the defendant unless plaintiff, within a time and under conditions to be fixed by the district judge, makes a satisfactory showing that on another trial evidence of sufficient probative force to justify submission of the cause to the jury will be offered, in which event the judgment shall be for a new trial." Theriot v. Mercer, 262 F.2d 754, 761.

In accordance with the mandate, the trial court notified the plaintiff that judgment would be entered for the defendant unless she tendered sufficient evidence to justify submission of the cause to the jury. The plaintiff then filed a "motion for a new trial" and submitted as supporting evidence a report and certain depositions from police officers. The report was a statement from a safety engineer and accident analyst that, in his opinion, the photographs and medical reports demonstrated that the damage to Theriot's car was caused by its impact with Mercer. The depositions showed some skullduggery in the sheriff's office with regard to the missing evidence and indicated also that some of the officers had heard that Theriot had purchased the missing headlight rim from someone who had found it at the scene of the accident. The district court denied the motion for a new trial. "The evidence", a minute entry states, "while persuasive, would be inadmissible in a new trial." Leaning over backwards to be fair, the Court granted a rehearing. On rehearing, the district judge stated from the bench that there was no question in his mind "that there was a denial of justice in this case" and no question in his "mind either that Paris Theriot killed this man", but he felt compelled to deny the motion on the ground that the evidence tendered was not competent, and that the plaintiff had not met the conditions for a new trial required by the mandate.² The plaintiff now appeals from this denial of the motion for a new trial.

On this second appeal the panel to which the case was assigned on its own motion invoked a hearing en banc. The Court en banc affirms the action below and dismisses the appeal.

I.

If the order now appealed from had indeed been an order denying a "motion for a new trial", as the plaintiff termed it, the order would be unappealable. Sobel v. Diatz, 1951, 88 U.S.App. D.C. 329, 189 F.2d 26; Bass v. B. & O. Terminal Co., 7 Cir., 1944, 142 F.2d 779, cert. den'd 323 U.S. 775, 65 S.Ct. 135, 89 L.Ed. 619. But the motion is not the motion for a new trial contemplated in Fed.R.Civ.P. 59. Such a motion "serves the function of allowing a party to seek to have the trial court correct errors, both of fact and law, that occur in the trial of the action." 6 Moore's Federal Practice 59.03 (1961). An order for a new trial reopens the issues of an action for a new trial on the merits, in whole or in part, before, an appeal on the merits. Here, however, the plaintiff's motion served a different function. It was filed in direct response to the invitation in this Court's mandate that the plaintiff present new evidence. If the plaintiff had made "a satisfactory showing that on another trial evidence of sufficient probative force to justify submission of the cause to the jury would be offered," the plaintiff would have been entitled to a "judgment for a new trial." Denial of the motion was a final decision by the district court that the plaintiff had failed to meet the terms of the mandate. The Court therefore holds that in the circumstances of this case the denial of the motion was an appealable order.

II.

The argument is made that since the district court entered judgment in compliance with the mandate on the former appeal, the judgment is not appealable. The contention is, that when judgment is entered after a new trial there is no question of jurisdiction to entertain a subsequent appeal; but when there has been no new trial, as in this case, the judgment entered is that of the appellate court itself and there is simply nothing from which to appeal. This rule has been consistently followed in this circuit. See Davis v. United States, 5 Cir., 1957, 244 F.2d 308; Amalgamated Assn. etc., v. Southern Bus Lines, Inc., 5 Cir., 1953, 201 F.2d 53; Seagraves v. Wallace, 5 Cir., 69 F.2d 163.

But the appellant is not appealing from a decree that is in effect the decree of the court issuing the mandate. The mandate left open the question of the sufficiency of the additional evidence to support a new trial; the order therefore adjudicated a subsequent issue not determined by the judgment which was the basis for the mandate. The appellant contends that the district court both misconstrued the mandate and was guilty of an abuse of judicial discretion in deciding the issue created by the mandate. An appeal lies, therefore, to review the action of the district court to determine whether it gave effect to the mandate. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Metcalf v. City of Watertown, 1895, 7 Cir., 68 F. 859; Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 1944, 7 Cir., 142 F.2d 549, cert. den'd 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376.

III.

The second appeal does not require a reconsideration of the merits. The narrow questions before the Court en banc are whether the district court properly construed the mandate and whether the district court abused its discretion in holding that the plaintiff failed to meet the terms of the mandate, that is, failed to make a satisfactory showing that the additional evidence would justify submission of the case to the jury. Accordingly, it is unnecessary to consider the application of the "law of the case doctrine". See Lincoln National Life Insurance Company v. Roosth, 5 Cir., 1962, 306 F.2d 110.

A. This Court directed that a new trial be granted upon plaintiff's showing evidence of "sufficient probative force to justify submission of the cause to the jury." Instead, the appellant argues, the district judge adopted a different, more stringent requirement. He required that the evidence be "additional" and "direct".

We hold that the district judge properly construed the mandate. The mandate is meaningless unless it refers to "additional" evidence, for the former opinion holds that the evidence in the record was insufficient to support a verdict and judgment for the plaintiff. It is true that the district judge referred to the lack of new "direct" evidence but the basis for his holding was that the evidence offered was hearsay and incompetent, not that it was indirect and circumstantial.

The appellant argues also that a...