Armentrout v. Virginian Ry. Co.

• Decision Date: 16 August 1947
• Docket Number: Civil Action No. 550.
• Citation: 72 F. Supp. 997
• Parties: ARMENTROUT v. VIRGINIAN RY. CO.
• Court: U.S. District Court — Southern District of West Virginia

72 F. Supp. 997

ARMENTROUT v. VIRGINIAN RY. CO.

Civil Action No. 550.

District Court, S. D. West Virginia.

August 16, 1947.

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Lilly & Lilly, of Charleston, W. Va., for plaintiff.

John R. Pendleton, of Princeton, W. Va., and Fletcher W. Mann, of Beckley, W. Va., for defendant.

MOORE, District Judge.

The first trial of this case resulted in a hung jury. At the second trial the jury returned a verdict in favor of the plaintiff in the amount of $100,000. On appeal the Circuit Court of Appeals reversed the case and remanded it for a new trial. 4 Cir., 158 F.2d 358. It was tried a third time and at the conclusion of this latest trial the jury returned a verdict in favor of the plaintiff for $160,000.

Defendant moved the Court to set aside the verdict and grant defendant a new trial, assigning five grounds. Four of these are general. They allege the admission by the Court of improper evidence and improper cross examination; argumentative and adverse instructions and comment by the Court; and that the verdict is not supported by the law and the evidence. Specifically, as might be naturally expected, defendant assigns as a ground for setting aside the verdict and granting it a new trial that the verdict is excessive.

After the assignment of the foregoing grounds, defendant assigned further grounds Numbers 6 and 7, as follows:

"6. The verdict of the jury is a quotient verdict and is not the true verdict of the entire jury.

"7. The amount of the verdict was induced by instructions of the Court argumentative and adverse to the defendant, improper argument of counsel for the plaintiff to the jury, adverse publicity given to the case during the trial by Charleston newspapers to which the jury had access, and sympathy of the jurors for the infant plaintiff."

Defendant filed in support of its motion an affidavit of Cecil A. Perdue, one of the jurors, and several clippings from Charleston newspapers published during the course of the trial.

No comment is necessary as to the general grounds assigned by defendant in support of its motion. Objections to the admission of evidence were made and argued by counsel during the course of the trial, and the Court in passing on the objections gave its reasons for admitting the evidence objected to, all of which still appear to the Court to be sound. Only one exception to the Court's charge was taken. This exception related to the Court's comments with reference to the testimony of defendant's witness Murdock. In reviewing the charge I can find nothing therein which would lead me to sustain the exception.

The seventh ground now assigned, criticising the charge of the Court as being argumentative and adverse, and alleging improper argument of counsel for the plaintiff to the jury and adverse publicity in the newspapers, can furnish no reason for setting aside the verdict and granting a new trial. No objection was made at the time to any part of the argument of counsel on either side. No particular ojectionable statement of counsel is pointed out. As said above, only one specific exception was taken to the charge. Therefore, the objection now made both as to counsel's argument and as to the Court's charge comes too late. Federal Rules of Civil Procedure, Rule 51, 28 U.S.C.A. following section 723c; United States v. Socony-Vacuum Oil Co., 1940, 310 U. S. 150, 60 S.Ct. 811, 84 L.Ed 1129, rehearing denied 310 U. S. 658, 60 S.Ct. 1091, 84 L.Ed. 1421. As to the allegation of adverse publicity in the newspapers, a perusal of the newspaper articles reveals nothing which supports this contention. The stories are merely the ordinary reporters' accounts of what took place in the trial. Articles such as these appear in connection with every case tried, and to undertake to suppress them would be a serious interference with the liberty of the press. In my opinion, it would be unreasonable to keep from a jury trying a civil case all newspapers which might publish accounts of the trial during its progress. Nothing is apparent in any of the articles which would be calculated to influence a juror either for or against the plaintiff. United States v. Reid et al., 12 How. 361, 53 U. S. 361, 13 L.Ed. 1023.

The sixth ground is supported by an affidavit of one of the jurors, Cecil A. Perdue, who says in his affidavit that the verdict was contrary to his convictions, and that he agreed to it with the hope that it would be set aside as unreasonable; and that the verdict was arrived at by each juror writing down the amount he thought the plaintiff was entitled to, the approximate sum, divided by twelve, being the amount of the verdict returned. He also says in his affidavit that if he had been asked by the judge or the clerk if he agreed to the verdict, his answer would have been no.

Generally speaking, public policy does not permit affidavits of jurors to be used to impeach their verdicts. If such a practice should be countenanced, we might expect after every important trial a long series of charges and counter-charges relating to supposed irregularities and misconduct of jurors while in the jury room. The obvious confusion and uncertainty which would result far out-weigh any local or temporary advantage that might be said to follow in an individual case from the reception of an affidavit by a juror to impeach his verdict. McDonald v. Pless, 1915, 238 U. S. 264, 35 S.Ct. 783, 59 L.Ed. 1300.

Quotient verdicts are universally frowned upon, and have been set aside in cases where the proof offered to establish the fact was of such character as to be admissible. However, it is not the mere arriving at the average of the jurors' opinions as to the amount of damage which makes the quotient verdict bad. The vice consists in an agreement by the jurors before announcing the respective amounts that they will be bound by the result of the addition and division. Parshall v. Minneapolis & St. L. R. Co., C. C., 1888, 35 F. 649. It is quite natural that each juror should be asked to state the amount he thinks should be awarded, and it is not unusual that the verdict finally returned should be the approximate average of these amounts. It will be noted that Perdue does not say in his affidavit that either he or any other juror was in favor of finding a verdict for the defendant. He merely states that he was convinced at the time that the amount of the verdict was too large.

The statement in his affidavit that if he had been asked individually by the judge or the clerk if he agreed to the verdict his answer would have been no is contradicted by the record as taken down by the official reporter. This record shows that with all the jurors present the jury were asked if they had agreed on a verdict. The foreman replied, "We have, your Honor." The clerk then read the verdict and after so doing asked the jurors the following question: "And so say each of you?" The record shows that the jury answered, "Yes." It is the practice in this court that if counsel wish the jury to be polled, they must request it. No request was made in this case. However, the Court knows from observation at the time that the record of the reporter to the effect that the jury answered "Yes" was justified by the fact that all the jurors, in answer to the clerk's question, signified their assent by nodding their heads or making other affirmative gestures or statements. Had they done or said nothing in response to the clerk's question, the conclusion would be the same. If any member of the jury disagreed with the verdict, it was his duty to say so, and not having said so at the time, he cannot be heard afterwards to make that claim.

Therefore, the sixth ground of the defendant's motion cannot be sustained.

The only substantial argument in support of the motion to set aside the verdict and grant a new trial is that the verdict is excessive.

Courts are not permitted to substitute their own judgment in matters of damage for that of the jury. It is only in those cases where the amount of the verdict is so large as to demonstrate clearly to the Court that it must have been the result of a gross error in applying legal principles, or that it is based on passion, prejudice or sympathy, that the Court may justly set it aside. Barry v. Edmunds, 1886, 116 U. S. 550, 6 S.Ct. 501, 29 L.Ed. 729 (quoting from Mr. Justice Story, 2 Story, 661, 670); Burch v. Southern Pac. Co., C.C.1906, 145 F. 443 (reversed on other grounds); Dumphy v. Norfolk & W. Railway Co., 1918, 82 W. Va. 123, 95 S.E. 863, 10 A.L.R. 1152. The mere fact that it may be larger than any verdict heretofore rendered in like circumstances is not decisive, although it is a fact to be considered. The largest verdict which may at any particular time be cited as having been approved by a court was, at the time of its rendition, larger than any which had gone before, and was therefore subject to the criticism that there were no precedents to justify it. The Court must take into consideration every proper circumstance in its effort to reach a just conclusion with respect to the challenged verdict.

The jury were told in the Court's charge what elements should be considered in arriving at the amount of their verdict. The charge followed closely the opinion rendered by the Circuit Court of Appeals in its reversal of the former trial.

In seeking to discover whether or not the jury were actuated by any improper motives in arriving at the amount of the verdict, we should attempt to measure the monetary value of the different elements of damage which were proper for their consideration; bearing in mind the decreased value of the dollar, which has come about very rapidly during the past few years.

The attention of the jury was not specifically directed to the low purchasing power of money, although in my opinion such a suggestion by the Court would have been proper, and certainly the jury were entitled to take that circumstance into consideration. It may be argued that ordinary...