Slatton v. Martin K. Eby Const. Co., Inc.

Citation506 F.2d 505
Decision Date18 November 1974
Docket NumberNos. 74-1279,74-1302,s. 74-1279
PartiesMax SLATTON, Jr., Appellant-Cross-Appellee, v. MARTIN K. EBY CONSTRUCTION CO., INC., d/b/a Eby and Associates of Arkansas, Appellee-Cross-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Henry Woods, Little Rock, Ark., for appellant.

James W. Moore, Little Rock, Ark., for appellee.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge. *

GIBSON, Chief Judge.

Plaintiff Max Slatton, Jr., while working on a barge in the Arkansas River, injured his back and elected to bring this action for damages therefore under the Jones Act, 46 U.S.C. 688, and under the maritime doctrine of unseaworthiness. A trial to a jury resulted in a verdict of $85,000. The trial court, 1 after offsetting $1,732.96 for workmen's compensation benefits already received by Slatton, ordered a remittitur of $33,267.04, leaving a net judgment of $50,000. The plaintiff refused to accept the remittitur and a new trial was ordered on the issue of damages. After an interlocutory appeal on the remittitur was denied, Slatton v. Martin K. Eby Construction Co., 491 F.2d 707, (8th Cir. 1974), the case was by agreement tried to the court solely on the issue of damages.

The trial court assessed damages at.$19,000 and entered judgment for that amount less the workmen's compensation benefits offset. The plaintiff appeals, contending that there was a clear abuse of discretion by the trial court in granting a partial remittitur of the jury's verdict. 2 The defendant, Martin K. Eby Construction Co., cross-appeals, contending that the District Court lacked admiralty and Jones Act jurisdiction because Slatton was neither a seaman nor a crew member of a vessel in navigation at the time of his injury.

The plaintiff, a 32-year-old welder, sprained his lower back on May 16, 1972, when he and a coworker were attempting to move by hand a heavy (300-400 pound) piece of 12 inch diameter metal pipe across the deck of a floating work barge moored to a bank of the Arkansas River. The barge, 20 by 46 feet in size, was also secured to a 'template,' a temporary circular working platform made of steel, utilized in constructing a 'dolphin.' A dolphin is a permanent river structure to which vessels can be moored. The plaintiff and his coworker would cut lengths of metal pipe to be used in constructing the dolphin. These would then be moved from the barge to the template encircling the dolphin. On prior occasions a crane had been used to move the pipes from the barge to the template. No crane was available on May 16, and the employees attempted to transfer the pipe manually, one pulling while plaintiff pushed or scooted the pipe across the deck of the flat work barge. Halfway to the template, the plaintiff felt a sharp pain in his back and became numb in his extremities.

He spent a day in the hospital and then returned home. After a day at home he was readmitted to the hospital for a few days of therapy and traction. No surgery was performed, and the medical testimony concerning the injury, its permanency, and the prognosis for recovery were in sharp contrast. Aside from two attempts at light work with his former employer, he did no work from the summer of 1972 until about three weeks before the case was tried in October of 1973 when he finally took a job driving and parking automobiles at about half of his former income.

The plaintiff testified about recurring pain and inability to do heavy work. Neurological tests failed to reveal a ruptured disc or a tendon injury. An electromyographic study secured by plaintiff's doctor showed the plaintiff was basically normal with some 'very mild changes' in his left tibial nerve. Another specialist secured by plaintiff's doctor performed a myelographic study in an attempt to determine whether or not the plaintiff had a ruptured or bulging disc in his lower back. The myelograph disclosed no abnormality or irregularity along the spinal canal and the specialist testified that his examination was completely negative. The plaintiff's physician, Dr. Rooney, thought he might possibly have a ruptured disc, but that if he did have one, it was healed by February 23, 1973. Dr. Rooney had released the plaintiff for light work within a month of the accident.

The trial court, in ordering the remittitur, found the jury's verdict to be 'grossly and shockingly excessive' in light of the evidence. 3 Plaintiff contends that this action was an abuse of discretion. The first question we must consider is the extent of our review of the action of a trial court in requiring a remittitur as a condition for denying a motion for new trial. Defendant asserts that decisions of this circuit indicate we will only reverse such an action of a district court when there has been a 'plain injustice' or a 'monstrous' or 'shocking' result.

We have indicated that this is the standard we apply for review of the refusal of the trial court to set aside a jury verdict on the grounds of excessiveness or inadequacy. As stated by Judge Blackmun, now Mr. Justice Blackmun, in Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961);

We shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is 'plain injustice' or a 'monstrous' or 'shocking' result.

Whether this in fact is a different standard than the abuse of discretion standard applied by other courts of appeals, as argued by defendant, is subject to some doubt, for as Judge Blackmum went on to say in Solomon, supra at 447-448:

Perhaps this is saying nothing more and nothing different than what the other courts of appeals have said in varying language. Perhaps in practice this court has observed a somewhat tighter standard then the others. In any event, we still adhere to it.

But whatever view may be taken of our standard for review of a trial court's action in refusing to overturn a jury award is not dispositive of the question before us in this case. Here we are not confronted on review with a jury determination as to a particular measure of damages buttressed by the conclusion of the trial court, who had the benefit of hearing the testimony and observing the demeanor of the witnesses, that the verdict should stand. When confronted with the concurrence of these two factors 'an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial.' Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145, 148, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969).

The situation presented by the present case requires an assessment of opposing considerations. A jury, upon consideration of the evidence, has awarded one quantum of damages. The trial court, upon his review of the evidence on the motion for new trial 4 has determined that the damages were excessive, in fact 'grossly and shockingly excessive.' We are always mindful that the primary judge of the facts is the jury, and that its decision on the facts deserves great weight. Opposed to this in the present case is the decision of the trial court that the jury's award is excessive. We have traditionally given trial judges a large range of discretion in ruling on motions for new trial, particularly on the weight of the evidence, in recognition of the fact that they have heard the testimony and observed demeanor of the witnesses and are more aware of the community and its standards. Solomon Dehydrating Co. v. Guyton, supra, 294 F.2d at 447. Further, it is settled that the action of the trial court in setting aside a jury verdict is not in derogation of the right to trial by jury, 'but is one of the historic safeguards of that right.' Altrichter v. Shell Oil Co., 263 F.2d 377, 380 (8th Cir. 1959), quoting Aetna Casualty & Surety Co. v. Yeatts,122 F.2d 350, 353 (4th Cir. 1941).

The issue presented as to the standard of review of a remittitur ordered as a condition of denying a new trial motion is one of first impression in this circuit. We have carefully considered the competing considerations mentioned above and the decision in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970), where the same issue was presented for decision. We conclude that the standard we will apply in determining whether there was an abuse of discretion in ordering the remittitur is whether the remittiturwas ordered for an amount less than the jury could reasonably find. Gorsalitz v. Olin Mathieson Chemical Corp., 456 F.2d 180 (5th Cir. 1972). Cf. Taylor v. Washington Terminal Co., supra, 409 F.2d at 148:

In this jurisdiction particularly, District Court judges have given great weight to jury verdicts. They have stated that a new trial motion will not be granted unless the 'verdict is so unreasonably high as to result in a miscarriage of justice,' or, most recently, unless the verdict is 'so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.'

At the appellate level, in reviewing a trial judge's grant of a new trial for excessive verdict, we should not apply the same standard. The trial judge's view that a verdict is outside the proper range deserves considerable deference. His exercise of discretion in granting the motion is reviewable only for abuse. Thus we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within 'the maximum limit of a reasonable range.'

The trial court's determination of a reasonable limit to the jury award will be given considerable deference in our review.

In applying that standard to the facts of this case, we find no abuse of discretion on the part of the trial court. The trial court found the...

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