Jamison Co., Inc. v. Westvaco Corp.

• Decision Date: 15 April 1976
• Docket Number: No. 74-3433,74-3433
• Citation: 530 F.2d 34
• Parties: JAMISON COMPANY, INC., Plaintiff-Appellee, v. WESTVACO CORPORATION, formerly West Virginia Pulp and Paper Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 34

530 F.2d 34

JAMISON COMPANY, INC., Plaintiff-Appellee, v. WESTVACO CORPORATION, formerly West Virginia Pulp and Paper Company, Defendant-Appellant.

No. 74-3433.

United States Court of Appeals Fifth Circuit.

April 15, 1976.

Dean Booth, Michael C. Murphy, Atlanta, Ga., for defendant-appellant.

Gary N. Ackerman, Edward E. Dorsey, James H. Keaten, David M. Rapp, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion February 6, 1976, 5 Cir., 1976, 526 F.2d 923).

Before GOLDERG and AINSWORTH, Circuit Judges, and NICHOLS, ^* Associate Judge.

GOLDBERG, Circuit Judge.

On petition for rehearing, plaintiff Jamison Company attacks this Court's decision ordering a new trial as to all issues. In our original opinion, we held that the jury had awarded excessive damages. Because we were unable to determine the theory of liability on which the jury premised its overly generous verdict, we did not limit our remand to a remittitur or a partial new trial.

Jamison does not question the panel's basic finding of an excessive verdict. Instead, Jamison argues that because the jury clearly rejected defendant Westvaco's counterclaim, a new trial as to the 'appropriate theory of recovery' and damages is proper only if the counterclaim is excised. In support of this contention, plaintiff refers to a verdict sheet which neither party mentioned in brief or included in the printed appendix originally reviewed by this Court. After having examined the verdict sheet, we remain unable to discern the jury-chosen basis of liability, and we certainly cannot conclude that the jury rejected the counterclaim. Therefore, plaintiff's petition is denied.

In large part, the problem with petitioner's argument results from its refusal to recognize that under the parties' contract ¹ the jury could find for Westvaco on all issues, including the disputed counterclaim, and still render a monetary verdict in Jamison's favor. The contract and the Judge's instruction provided that if Westvaco justifiably terminated Jamison (i.e. the termination was for cause), the latter could recover from Westvaco those 'costs incurred which were beneficial to Westvaco, less any excess expense which was necessary and reasonable for Westvaco to finish the work of Jamison . . ..' (Emphasis added.) See 526 F.2d at 935 n. 27. As explained in footnote 27 of our original opinion, it is not inconceivable that the jury, following this instruction, 'agreed on $607,000, in beneficial costs to Westvaco . . . and also found unreasonable the excess costs for finishing the job claimed by Westvaco.' Thus, the net dollar award rendered in Jamison's favor need not reflect a jury finding either that Westvaco breached its contract (i.e. a finding that the termination was without cause) or that Jamison was not liable on the counterclaim. ²

Nor does the verdict sheet, referred to for the first time in the petition for rehearing, eliminate the confusion resulting from the absence of special interrogatories. See section IV, 526 F.2d at 934--35. That sheet, clearly not a substitute for Rule 49(a) questions, permitted the jury to select one of three outcomes:

We the Jury, find for the plaintiff, Jamison Company, Inc., $_ _ against defendant, Westvaco Corporation, as to the main suit.

We, the Jury, find for the defendant, Westvaco Corporation, $_ _ against plaintiff, Jamison Company, Inc. as to the counterclaim.

We, the Jury, find for the defendant, Westvaco Corporation, against plaintiff, Jamison Company, Inc., as to the main suit, and for plaintiff, Jamison Company, Inc., against defendant Westvaco Corporation, as to the counterclaim.

The jury, choosing the first alternative, filled in the blank for $607,000. However, this action does not inform us of the grounds for the jury's verdict. The first section could easily encompass liability on a theory of 1) termination without cause, 2) termination with cause (with a possible offset for the defendant's counterclaim, see discussion infra) or 3) settlement. Under the judge's instruction, the jury might have viewed any one of these three theories as the 'main suit' and, absent special interrogatories, had no need to distinguish among them.

The second section of the verdict sheet purported to cover the possibility that the jury would find for Westvaco on the counterclaim. One might argue that had the jurors intended to award Jamison damages pursuant to the termination with cause theory and also to hold for Westvaco on the counterclaim (a totally plausible outcome ³ and one with respect to which the judge had earlier instructed the jury), they would have marked both the first and second verdict choices. However, the judge also informed the jury that if they determined Westvaco entitled to recover on the counterclaim, they should 'forget about this first section up here, the verdict for the plaintiff. . . .' ⁴ Thus, in order to communicate a termination with cause/counterclaim disposition while marking only one section, the jury logically might have netted the damages determined under these two theories (as was suggested by the judge's prior instruction, see 526 F.2d at 935 n. 27) and then written this netted figure in the first section's blank space. We cannot be certain that this account accurately represents the jury's intention in responding as it did. In order to require retrial as to all issues, however, we need only conclude that the above presents a rational explanation for the jury's action. As Judge Spottswood Robinson said in a similar situation:

Whether these or other possible consequences actually followed the handling of the matter is something we will never know. It is enough, however, that one or more may have; and viewing the situation realistically, we cannot confidently say that none did. Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 1975, 168 U.S.App.D.C. 149, 513 F.2d 407, 422.

See also Arkla Exploration Co. v. Boren, 8 Cir. 1969, 411 F.2d 879, 881. Finally, the verdict sheet's third alternative not only complicated the jury's understanding of the available options but also further obscured our ability to discover the verdict's decisional basis. ⁵

We reiterate that the problem is not, as Jamison suggests, that of a party's failure to request a particular instruction or form of verdict. Rather, the problem is that under the instructions given in this case, the verdict is capable of comprehending any one of a number of theories of liability, including liability on the counterclaim. Given this ambiguity, we cannot discover the exact basis of the jury's excessive award and must therefore remand for a new trial as to all issues.

The decision as to the issues to be retried on remand remains largely within the discretion of the appellate court. See 6A Moore, Federal Practice P59.06 (2 ed. 1966). In exercising this discretion, we have been guided by the general rule that:

(in) limiting the retrial to a single issue where the other issues have previously been properly submitted and determined by a jury, the Court should proceed with caution, with a careful regard to the rights of both parties and only in those cases where it is plain that the error which has crept into one element of the verdict did not in any way affect the determination of any other issue (emphasis added.) Thompson v. Camp, 6 Cir. 1948, 167 F.2d 733, 734.

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