512 F.2d 276 (5th Cir. 1975), 74-1800, Edwards v. Sears, Roebuck and Co.

Docket Nº:74-1800.
Citation:512 F.2d 276
Party Name:Doris R. EDWARDS, etc., Plaintiff-Appellee, Cross-Appellant, v. SEARS, ROEBUCK AND COMPANY et al., Defendants-Appellants, Cross-Appellees.
Case Date:April 25, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 276

512 F.2d 276 (5th Cir. 1975)

Doris R. EDWARDS, etc., Plaintiff-Appellee, Cross-Appellant,

v.

SEARS, ROEBUCK AND COMPANY et al., Defendants-Appellants,

Cross-Appellees.

No. 74-1800.

United States Court of Appeals, Fifth Circuit

April 25, 1975

Page 277

[Copyrighted Material Omitted]

Page 278

John F. McClure, Peter D. Kasdin, Chicago, Ill., R. W. Heidelberg, Hattiesburg, Miss., for Sears.

Rae Bryant, Gulfport, Miss., William F. Goodman, Jr., Jackson, Miss., for La Manufacture.

Jolly W. Matthews, III, Francis Zachary, Carroll H. Ingram, Hattiesburg, Miss., Bill R. Holloway, Lake Village, Ark., for Edwards.

Appeals from the United States District Court for the Southern District of Mississippi.

Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

Plaintiff Doris R. Edwards, as administratrix of the estate of her deceased husband, George R. Edwards, commenced this diversity civil action in United States District Court for the Southern District of Mississippi. Plaintiff sought over.$3.6 million in damages under Mississippi's wrongful death statute, Code of 1942 § 1453 (now 1972 Miss.Code

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Ann. § 11-7-13) against Sears, Roebuck and Company (Sears), La Manufacture Francaise Des Pneumatiques Michelin, a French corporation (Michelin), and Chrysler Corporation for the wrongful death of George R. Edwards. After an extended trial, the jury entered a verdict of $900,000 against Sears and Michelin. 1 The trial court refused defendants' motions for a new trial and judgment notwithstanding the verdict, but, finding the jury's verdict to have been "swayed by passion or prejudice," ordered the verdict reduced to $450,000. Sears and Michelin have appealed the finding of liability, and plaintiff has objected by way of cross-appeal to the trial court's reduction of damages. 2 After a deliberate and thorough examination of the briefs and the extensive record before us, we have determined that both the verdict and the trial court's reduction of damages must be reversed, and the case remanded for a new trial.

I. The Facts

Many of the facts in this case are not in serious dispute. On February 3, 1971, George Edwards purchased four tires from Sears and had them installed on his 1970 Chrysler automobile. Pursuant to a written agreement with Sears, Michelin had manufactured the tires in question in Italy, and had delivered the tires to Sears in France. Sears imported the tires into the United States for sale to the general public, merchandising the tires under its own name as "Sears Allstate Steel-Belted Radial Tires, Sears, Roebuck & Co." Only Sears' name appeared on the tires and in Sears' advertising.

On the evening of September 7, 1971, George Edwards and his brother Karl were in Nina's Place, near Gulfport, Mississippi. The brothers were drinking whiskey and playing poker from approximately 11 p. m. to 1 or 2 a. m. when they left Nina's Place, driving northbound on Highway 49. At some time prior to 7 a. m. on the morning of September 8, the remains of Edwards' car were discovered in the neutral ground between the north and south lanes of Highway 49 about 40 miles north of Gulfport and 20 miles south of Hattiesburg. There were no witnesses to the accident.

The weather that night was clear, and no precipitation was reported. The decedent's car had been traveling north in the right lane of the two northbound lanes of Highway 49. Tire marks began in the east lane and veered to the left toward the neutral ground separating the north and southbound lanes. Measurement of the tire marks showed that the car traveled 354 feet from the beginning of the marks until it left the roadway. The auto careened through the neutral ground, clipping off small trees and saplings three to four feet above the ground, until it crashed, upside down, into a ten-inch pine tree in the neutral ground which it bent to a 45-degree angle. After leaving the roadway, the car hurtled 345 feet through the neutral ground, stopping a total of 699 feet from the point where the skid marks first started. The car was almost completely demolished; the bodies of the two men were found 25 to 30 feet from the car. 3 The left rear tire on the car was in shreds. The tread and both steel belts were missing from the tire, and pieces of the tire were strewn alongside the road. The right rear tire still held air; although it supported the car as it was towed some 18 miles to Hattiesburg, no tread remained on the tire.

There was substantial dispute at trial regarding whether the rear tires suffered from any manufacturing defect, and whether a defect, if extant, was a

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proximate cause of the accident. Plaintiff's expert witness testified in substance that the tires were defective. The defendants offered their own expert witnesses, who concluded the tires were not defective, and attributed the tire failure to other causes such as high speed and underinflation. There was general agreement among the experts, however, that the radial tires in question were potentially dangerous when driven at speeds in excess of 75 miles per hour while inflated to a pressure of only 24 pounds per square inch (p. s. i.). Despite this potential danger, none of the defendants notified tire purchasers that tire inflation should be increased to 28 p. s. i. if high-speed driving was contemplated.

Plaintiff further alleged that Sears and Michelin were liable for the negligent manufacture of the tires, that they were strictly liable in tort for any nonnegligent defect in the tires, and that both were liable for breach of the implied warranty of merchantability attaching to the tires. 4 In addition, it was alleged that Sears' representations of its tires as being unusually reliable, durable and safe, particularly at high speeds, had been relied on by the deceased in purchasing the tires, that these representations were a basis of the bargain and created an express warranty running from the seller to the buyer, 5 the breach of which proximately caused George Edwards' death.

The asserted bases of liability were thus the following:

(1) Negligent failure to warn of the necessity for additional tire pressure at high speeds-asserted against Chrysler.

(2) Negligent manufacture of the tires-asserted against Sears and Michelin.

(3) Strict liability in tort-asserted against Sears and Michelin.

(4) Breach of express warranty-asserted against Sears.

(5) Breach of implied warranty of merchantability-asserted against Sears and Michelin.

The jury returned a general verdict against Sears and Michelin, finding damages in the amount of $900,000. The district court, in its opinion denying defendants' motion for a new trial or judgment notwithstanding the verdict, concluded the award was grossly excessive, particularly in light of the strong evidence "that Edwards' car was traveling at a speed so great as to evince wilful disregard for his own life," and the court's instruction that the jury was to reduce damages in proportion to the contributory negligence attributable to Edwards. The court concluded that the jury "was swayed by passion or prejudice and failed to respond to the (court's) instructions ...," and reduce the amount of damages by $450,000. 6

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II. Jury Passion or Prejudice and the Need for a New Trial

Appellants contend that the trial court's finding that the verdict was influenced by jury passion or prejudice necessitates, in and of itself, a new trial. We believe this issue is best addressed in conjunction with appellants' closely related claim that plaintiff's counsel made deliberately prejudicial and inflammatory remarks to the jury in their closing arguments which constitute reversible error. We have concluded that the trial court's finding of both passion or prejudice as well as disregard of the court's instructions necessitates, under the facts and circumstances of this case, a new trial as to both liability and damages. Moreover, we believe the closing argument in this case was far beyond the bounds of accepted advocacy and, when coupled with the trial court's finding of passion or prejudice, such argument itself constitutes a basis for reversal.

A. Impact of the Trial Court's Conclusions

It is important to recognize that this is not a case where an appellate court, reviewing only a cold record, is attempting to reanalyze a case and independently conclude that passion or prejudice on the part of the jury pervaded the verdict. Rather, in this case the trial judge, with the benefit of his participation in the trial, his observation of the witnesses and his understanding of the case, has found these elements present. It is not our province to second-guess Judge Russell's findings since "(t)he trial court's determination as to whether the verdict is the result of passion or prejudice will not be disturbed on appeal, unless the determination is clearly erroneous." 6A Moore's Federal Practice P 59.05(3), at 59-59 (1974). After our own review of the record, we cannot say Judge Russell clearly erred in this finding. Having agreed with the district court that the $900,000 verdict was improperly infected with bias or prejudice, our analysis shifts to the issue whether the impropriety could be cured by lopping $450,000 off the award, or whether a new trial is necessary.

Appellants argue that any finding of passion or prejudice automatically requires a new trial, relying on Brabham v. State of Mississippi, 5 Cir., 1938, 96 F.2d 210, cert. denied, 305 U.S. 636, 59 S.Ct. 103, 83 L.Ed. 409, where this court commented:

Verdicts made excessive by the passion and prejudice springing from indulgence, in the jury room, in such feelings, may not be cured by a remittitur, but only by a new trial.

Id. 96 F.2d at 213...

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