814 F.2d 1271 (8th Cir. 1987), 86-5070, Champeau v. Fruehauf Corp.

Docket Nº86-5070, 86-5086.
Citation814 F.2d 1271
Party NameJohn L. CHAMPEAU, Appellant, v. FRUEHAUF CORPORATION, a Michigan Corporation, and Kelsey-Hayes Company, a Delaware Corporation, Appellees. John L. CHAMPEAU, Appellant, v. FRUEHAUF CORPORATION, a Michigan Corporation, and Kelsey-Hayes Company, a Delaware Corporation, Appellees, v. SCHULTZ LEASING, INC.
Case DateApril 01, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1271

814 F.2d 1271 (8th Cir. 1987)

John L. CHAMPEAU, Appellant,

v.

FRUEHAUF CORPORATION, a Michigan Corporation, and

Kelsey-Hayes Company, a Delaware Corporation, Appellees.

John L. CHAMPEAU, Appellant,

v.

FRUEHAUF CORPORATION, a Michigan Corporation, and

Kelsey-Hayes Company, a Delaware Corporation, Appellees,

v.

SCHULTZ LEASING, INC.

Nos. 86-5070, 86-5086.

United States Court of Appeals, Eighth Circuit

April 1, 1987

Submitted Oct. 17, 1986.

Rehearing and Rehearing En Banc Denied May 6, 1987.

Page 1272

Robert R. Johnson, Minneapolis, Minn., for appellant.

Jomes L. Haigh, Minneapolis, Minn., for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

Page 1273

HENLEY, Senior Circuit Judge.

John L. Champeau appeals from judgment on a jury verdict 1 in favor of appellees Fruehauf Corporation and Kelsey-Hayes Company following a second trial of this case in the United States District Court for the District of Minnesota. On appeal Champeau contends that the district court 2 erred in granting appellees' motion for new trial following the first trial, and that the court 3 erred in admitting into evidence a videotaped experiment at the second trial. We affirm.

Champeau was an over-the-road truck driver for Schultz Leasing, Inc. On October 28, 1977 he was traveling from Purdum, Nebraska to Sioux Falls, South Dakota, and was pulling a Fruehauf trailer which had computer assisted anti-lock brakes manufactured by Kelsey-Hayes. A local resident in Purdum advised Champeau that the shortest route to Sioux Falls was over a county road near Elsmere, Nebraska, and Champeau decided to take that route. The Elsmere road was under construction at the time and was closed to all but local traffic. Part of the road had been paved and part remained gravel.

The weather on the morning of October 28 included mist or light drizzle. Champeau negotiated the gravel portion of the road and entered the paved portion, which he testified had both wet and dry spots. He subsequently came upon two "S" curves in the road and successfully negotiated the first. He testified that at the time he first applied the brakes in preparation for the second "S" curve, he was approximately one-quarter mile from the start of the curve and was traveling at thirty-five miles per hour. When he applied the brakes, only the tractor brakes functioned. He released the brakes and applied them for a second time. Once again the trailer brakes did not operate. He was already into the curve when he applied the brakes for the third time. The trailer brakes failed again and the trailer pushed the tractor into a jackknife position.

Champeau suffered a neck injury which resulted in his inability to continue work as a truck driver. He later underwent disc surgery, which relieved a good deal of his pain, and he obtained employment as a janitor in a school. He has suffered a substantial decrease in earnings.

Champeau brought this products liability action against appellees alleging that the computer assisted anti-lock braking system manufactured by Kelsey-Hayes and installed by Fruehauf on its trailers was defectively designed and unreasonably dangerous. At the first trial, the jury found for Champeau and awarded him one million dollars in damages. Appellees moved for judgment n.o.v. or new trial, alleging several grounds. Following oral arguments, appellees' motion for new trial was granted by the district court without comment.

During the second trial, appellees were allowed to introduce into evidence a videotaped experiment performed at the scene of the accident which tended to show that the truck would have coasted to a stop short of the curve if, as he testified, Champeau took his foot off the accelerator one-quarter mile from the curve while traveling at thirty-five miles per hour and did not reapply the accelerator thereafter. In connection with this videotape, a list of differences in conditions between the experiment and the accident was read to the jury. As indicated, at the second trial the jury found for appellees. Champeau now appeals. We address first Champeau's challenge to the

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district court's grant of a new trial to appellees following the first trial.

I. NEW TRIAL.

"The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980); see also Aimor Electric Works, Ltd. v. Omaha National Bank, 727 F.2d 688, 692 (8th Cir.1984); Commercial National Bank v. Missouri Pacific Railroad, 631 F.2d 563, 565 (8th Cir.1980). The trial court's decision therefore should not be reversed absent a strong showing of abuse of discretion. Aimor Electric Works, Ltd., 727 F.2d at 692; Lane v. Chowning, 610 F.2d 1385, 1388 (8th Cir.1979); see also Commercial National Bank, 631 F.2d at 565.

We are somewhat hampered in our review of the court's new trial decision because the court failed to state on the record or in its order which of the several grounds advanced by appellees formed the basis for the grant of the new trial. While Fed.R.Civ.P. 59(a) does not require such a statement, "[i]t is in the interest of good practice and the dispatch of business for trial courts to specify in their orders granting new trials the grounds on which such orders are made." 58 Am.Jur.2d New Trial Sec. 214 (1971); see also 66 C.J.S. New Trial Sec. 210(a)(3)(a) (1950). 4

Since we have few, if any, clues as to which ground or grounds formed the basis for the court's grant of a new trial to appellees, the question becomes how do we review that decision? Research has revealed few federal cases addressing similar situations. In Somerville v. Capital Transit Co., 192 F.2d 413, 414-15 (D.C.Cir.1951), cert. denied, 342 U.S. 941, 72 S.Ct. 553, 96 L.Ed. 700 (1952), the motion for new trial cited numerous grounds. In addition to the fact that the trial court failed to state on the record or in its order which grounds formed the basis of its decision to grant a new trial, no record of the evidence produced at the first trial was presented to the appellate court. The court held that "the state of the record before us precludes at the outset a finding of abuse in this case[.] ... Accordingly, we cannot characterize the action of the trial court in granting a new trial in the manner done here as an abuse of discretion." Id. at 415 (footnote omitted). In the present case we do at least have a transcript of the first trial, and the approach of the D.C.Circuit in Somerville seems unjust here. If we were to adopt the Somerville approach, a trial court could effectively avoid review of new trial decisions simply by not stating the grounds. This would deny parties the appellate review of such decisions, limited though it may be, to which they are entitled.

In Powell v. Lititz Mutual Insurance Co., 419 F.2d 62, 65 (5th Cir.1969), and Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532, 541 (5th Cir.1965), cert. denied, 382 U.S. 983, 86 S.Ct. 559, 15 L.Ed.2d 472 (1966), the Fifth Circuit seemed to adopt an approach to this problem whereby the appellate court scans the record and determines for itself what ground was most likely the basis for the court's decision. This approach may be too broad. First, it may lead to an affirmance on a ground not even considered by the trial court. Second, if the trial court's decision was based on any ground not mentioned in the motion, it may be observed that Rule 59(d) requires the court to state specifically that ground. Failure to do so may constitute error.

We can also look upon authority from states having a new trial rule substantially similar to Rule 59 as instructive. Ark.R.Civ.P. 59 is not materially different from its federal counterpart. In addressing a similar situation, the Arkansas Supreme Court stated as follows:

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We have said that when an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion.

General Motors Corp. v. Tate, 257 Ark. 347, 349, 516 S.W.2d 602, 604 (1974). We have adopted a similar approach in the obverse situation where the district court articulates several grounds for granting a new trial, most of which would constitute abuse of discretion. If the grant of a new trial is adequately supported by one of the court's stated grounds, we have said that there is no need to review every other ground for abuse of discretion. See Commercial National Bank, 631 F.2d at 565.

In reviewing the grant or denial of a new trial where the trial court has failed to state on the record or in its order what grounds formed the basis of its decision, we will adopt the approach of the Arkansas Supreme Court in Tate. If the trial court's decision can be supported by any single ground stated in the motion, ordinarily it should be affirmed. With this standard in mind, we now turn to specifics of the grant of a new trial here.

The grounds for a new trial advanced in appellees' motion were that the verdict was against the weight of the evidence, the damages awarded Champeau were excessive, the trial court erred in instructing the jury, the trial court was guilty of prejudicial misconduct, and the trial court committed evidentiary errors during trial. From our review of the record, we conclude that the strongest of these grounds is judicial misconduct.

"Intonations, gestures and comment of the trial judge, or the comment by itself, may be so improper as to warrant a new trial. And, in general, any misconduct of the court or its officers that is prejudicial will warrant a new...

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