Etling v. Sander

Decision Date28 July 1971
Docket NumberNo. 18665.,18665.
PartiesDenise ETLING et al., Plaintiffs-Appellants, v. Donald L. SANDER, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Charles H. Stegmeyer, Karns, Starnes, Nester & Stegmeyer, Belleville, Ill., for plaintiffs-appellants.

Charles R. Brady, Michael B. Constance, Brady, Donovan & Hatch, Belleville, Ill., for defendant-appellee.

Before HASTINGS, Senior Circuit Judge, FAIRCHILD, Circuit Judge and CAMPBELL, Senior District Judge.*

CAMPBELL, Senior Judge.

Plaintiffs brought this tort case to recover for injuries sustained in an automobile accident. There are four plaintiffs. Denise Etling and Harlan Etling are husband and wife. Shirley Johnson and Lisa Doyea are children of Denise Etling. The accident occurred when the defendant's car apparently slid into plaintiffs' lane of traffic. The defendant had been traveling at approximately 45 miles per hour and, according to his version of the occurrence, was forced to apply his brakes when a car in front of him stopped because a car in front of it was pulling off the road.

The case was tried to a jury. The jury returned verdicts in favor of each plaintiff and against the defendant in the following amounts: Denise Etling, $471.40; Harlan Etling, $882.00; Shirley Johnson, $32.50 and Lisa Doyea, $913.50. Judgment was entered on the verdicts and the plaintiffs were awarded costs.

Plaintiffs filed a motion for a new trial on the issue of damages on the basis that said verdicts were insufficient to compensate plaintiffs for their out-of-pocket expenses which were causally connected to the accident. The motion was denied. Plaintiffs took this appeal from the trial court's denial of their motion for a new trial on the issue of damages. Essentially their argument in this court is that the verdicts returned by the jury were in certain instances less than the out-of-pocket expenses incurred by the plaintiffs and are therefore insufficient as a matter of law. They also claim that this insufficiency resulted in part because of the trial court's refusal to grant a directed verdict in their behalf at the close of all of the evidence.

First, it was clearly not error for the trial court to refuse to direct a verdict in favor of plaintiffs at the close of all of the evidence. In this circuit we apply the State standard for direction of verdicts in diversity cases. Illinois State Trust Co. v. Terminal Railroad Association of St. Louis, 440 F.2d 497 (7th Cir. 1971). That strict standard is clearly set forth in the opinion of the Illinois Supreme Court in Pedrick v. Peoria and E. R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967).

"In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

More important, by its refusal to grant plaintiffs' motion for a directed verdict at the end of all of the evidence, the trial court submitted the action to the jury subject to a later determination of the legal questions raised by the motion. See Rule 50(b), F.R.Civ.Proc. This is the common practice in federal trial courts. By following this course, the court avoids the need for a second trial if the appellate court should hold, contrary to the view of the trial court, that the evidence was sufficient to raise a jury issue. See Wright, Federal Courts (2d ed.) p. 416.

Separated from the directed verdict question, plaintiffs' argument is simply that a new trial should be ordered because the awards of damages were inadequate. We disagree with this contention also. The limits of our authority on review on this issue have been expressed by Chief Judge Swygert writing for this court in Taylor v. Bennett, 323 F.2d 607, 609 (1963).

"Appellate courts will review the adequacy of damages only in cases where the jury awards nominal damages, that is, where it is apparent that the jury did not attempt to appraise plaintiff\'s loss at all, or where the verdict is less than the amount of undisputed loss." (Emphasis in original).

As further pointed out by the court in the Taylor opinion, it is within the discretion of the trial court to grant or deny the motion for a new trial on the question of the adequacy of damages, and the decision of the trial court should not be disturbed on appeal except where there is a clear abuse of discretion.

In denying the motion for new trial on the issue of damages in this case, the trial court concluded, "Having considered the evidence, including the medical testimony, including plaintiffs' own physicians, this court cannot say that the verdicts of the jury are erroneous." Upon our review of the record in this case, we agree with the conclusion of the trial judge. The damages awarded to each plaintiff, while perhaps low, are more than nominal damages. It is also apparent that the jury made every attempt to appraise plaintiffs' loss. In no case was the verdict less than the amount of undisputed loss. For example, in the case of Harlan Etling, plaintiffs argue that the award to him of $882.00 was less than his proven medical expenses and lost wages. Harlan Etling testified that he paid $489.00 in medical bills. He also testified that he lost two weeks' earnings amounting to $500.00. However, he also stated that his computation was approximate and that he was...

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9 cases
  • Hutchison v. Amateur Electronics Supply, Inc., 91-C-1377.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • December 3, 1993
    ...J.). It is within the discretion of this Court to grant or deny a new trial on the question of the adequacy of damages, Etling v. Sander, 447 F.2d 593, 594 (7th Cir.1971), and such a motion is properly granted if it will "effect substantial justice." Rosera, 109 F.R.D. at 148; St. Clair, 61......
  • Karczewski v. Ford Motor Company
    • United States
    • U.S. District Court — Northern District of Indiana
    • October 10, 1974
    ...difference. Our Court of Appeals has, however, decided that state law controls this question in a diversity case. See Etling v. Sanders, 447 F.2d 593 (7th Cir. 1971), and see also Perzinski v. Chevron Chemical Co., 503 F.2d 654 (7th Cir. Motions for directed verdict or for judgment N.O.V. a......
  • Stevens v. Tillman
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 26, 1986
    ...grant a motion for directed verdict, the better practice is to deny the motion and let the jury return a verdict. See Etling v. Sander, 447 F.2d 593, 594 (7th Cir.1971); 5A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 50.053 (2d ed. For the foregoing reasons, the defendants'......
  • Adams v. Fred Weber, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 31, 1988
    ...to Pace. Pace argues that the verdict is excessive and that Judge Beatty abused his discretion by allowing it to stand. Etling v. Sander, 447 F.2d 593, 594 (7th Cir.1971). Predictably, Weber challenges the jury's apportionment of fault. Neither contention warrants more than a cursory Pace's......
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