429 U.S. 648 (1977), 76-613, Donovan v. Penn Shipping Co., Inc.

Docket Nº:No. 76-613
Citation:429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112
Party Name:Donovan v. Penn Shipping Co., Inc.
Case Date:February 22, 1977
Court:United States Supreme Court

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429 U.S. 648 (1977)

97 S.Ct. 835, 51 L.Ed.2d 112

Donovan

v.

Penn Shipping Co., Inc.

No. 76-613

United States Supreme Court

Feb. 22, 1977

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

Syllabus

A plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted. Hence, where petitioner seaman in his action under the Jones Act for injuries sustained [97 S.Ct. 836] on board ship accepted "under protest" a reduced verdict when the District Court ordered a new trial on damages unless petitioner agreed to a remittitur, the Court of Appeal properly dismissed petitioner's appeal from such order on the ground that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal.

Certiorari granted; 536 F.2d 536, affirmed.

Per curiam opinion.

PER CURIAM.

The petitioner, while employed by the respondents as a seaman on the SS Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U.S.C. § 688, and obtained a $90,000 verdict at his jury trial. The respondents moved to set aside the verdict as excessive. Fed.Rules Civ.Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.

After some time the petitioner submitted to the District Court a proposed order stating that he accepted "under protest" the reduced verdict of $65,000, but reserving nonetheless "his right to appeal therefrom." This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.

The petitioner sought appellate review of the District Court's decision to order a conditional new trial. In so doing, he asked the Court of Appeals for the Second Circuit to

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discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner's invitation, and dismissed the appeal. 536 F.2d 536.

The Court of Appeals properly followed our precedents in holding that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the...

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