Cities Service Oil Company v. Launey

• Decision Date: 05 November 1968
• Docket Number: No. 24781.,24781.
• Citation: Cities Service Oil Company v. Launey, 403 F.2d 537 (5th Cir. 1968)
• Parties: CITIES SERVICE OIL COMPANY, Appellant, v. Mrs. Angela Richard LAUNEY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

403 F.2d 537 (1968)

CITIES SERVICE OIL COMPANY, Appellant, v.Mrs. Angela Richard LAUNEY, Appellee.

No. 24781.

United States Court of Appeals Fifth Circuit.

November 5, 1968.

G. Allen Kimball, Jones, Kimball, Harper, Tete & Wetherill, Lake Charles, La., for appellant.

Robert G. Hebert, New Orleans, La., Charles M. Thompson, Jr., Roger C. Sellers, Abbeville, La., for appellee.

Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.

WILLIAM A. McRAE, Jr., District Judge:

Angela Richard Launey brought suit under the Jones Act, 46 U.S.C. § 688, against Cities Service Oil Company for the wrongful death of her husband Malcolm Launey, who became ill while serving as a member of the crew of Defendant's tanker SS Cities Service Baltimore, and died several days after the end of the voyage.

Plaintiff did not allege that decedent's heart attack was caused by Defendant, but rather the failure of Defendant to provide prompt and adequate medical attention for a man who was obviously ill and unable to care for himself while aboard the ship.

Plaintiff claimed (1) $6200 for decedent's personal loss and suffering before his death; (2) $1200 for funeral expenses; (3) $103,000 for the economic value of decedent's life.The jury found for Plaintiff in the following amounts: (1) $6200 for decedent's pain and suffering; (2) $50,400 for Plaintiff's pecuniary loss; (3) $1222 for doctor and hospital bills; and (4) $1200.99 for decedent's funeral expenses.

The jury further found contributory negligence against decedent in the amount of 30% and the sum total of the above enumerated amounts was reduced by that percentage.The total award to Plaintiff was accordingly $41,315.50.

Defendant has raised on appeal six specifications of error: that the trial court erred (1) in failing to grant a motion for a new trial on the ground that the verdict was contrary to the weight of the evidence; (2) in failing to grant a new trial because of the excessiveness of the award; (3) in refusing to give certain jury instructions; (4) in failing to admonish counsel for Plaintiff for certain misstatements of fact during closing arguments; (5) in admitting in evidence proof of decedent's funeral expenses; (6) in accepting the jury's verdict in damages for the sum of (a) $6200 for decedent's pain and suffering, and (b) $1222 for doctor and hospital bills, and entering judgment thereon, whereas Plaintiff had only prayed for $6200 to cover both of these items.

The primary thrust of the appeal is that the trial court erred in refusing to grant a new trial on the ground that the verdict was contrary to the weight of the evidence.

The Court considers it unnecessary to make a lengthy recitation of the facts relevant to this argument, because the Defendant's contention is that the trial court erred in the standard it applied in determining whether or not to grant the motion for new trial rather than in its evaluation of the evidence.In brief, Defendant based its defense on the contention that if decedent had made a full and fair disclosure concerning his earlier history of heart disorders, and of various physical signs occurring during the voyage, proper precautionary measures could and would have been taken.On the other hand, Plaintiff takes the position that much of the earlier medical history of decedent is irrelevant, and that the worsening of decedent's condition during the voyage was repeatedly called to the attention of responsible persons aboard the ship, and yet no steps were taken to make sure that proper medical attention was given to decedent.

In Hampton v. Magnolia Towing Co., 338 F.2d 303(5th Cir.1964), which was also a Jones Act case, this Court gave careful consideration to the standards properly to be applied in granting motions for a new trial and motions for judgment n. o. v. In Hampton, the lower court refused to grant defendant's motion for a new trial, but granted defendant's motion for judgment n. o. v. This Court reversed the granting of the motion for judgment n. o. v., with instructions that the lower court could grant the motion for a new trial if it "continues to think the verdict to be against the overwhelming weight of the evidence."This Court pointed out that a trial court, in considering a motion for new trial, is no longer bound by the strictures of the rule of substantial evidence.If the trial court finds that the jury verdict is contrary to the clear weight of the evidence, it may, in its discretion, grant a new trial.On the other hand, a motion for a directed verdict, or a judgment n. o. v., are proper only when there is "a complete absence of any evidence to warrant submission to the jury."

Hampton was called to the attention of the trial judge, and it is plain that he had that case clearly in mind when he denied Defendant's motion for a new trial.It is the contention of Defendant, however, that the following comments of the trial judge are in conflict with Hampton:

I agree with Mr. Kimball attorney for the defendant that the weight of the evidence would be, in my judgment to decide the case for the defendants; I believe I would have done it, but I certainly don\'t think the overwhelming weight is that way.I think it was a pure jury question.

* * * * * *

I understand fully that I have discretion to grant a new trial, should I feel that the overwhelming evidence is against the verdict, or that it shocks my conscience.It does not shock my conscience.(Emphasis added)

Defendant, in its appeal, is apparently contending that the proper test is that a new trial should be granted if the verdict is "merely against the greater weight of the evidence," as the trial court seemed to admit that it was in this case, and that the trial court incorrectly held that a new trial should be granted only if the "overwhelming evidence is against the verdict."The interpretation placed on Hampton by Defendant is tantamount to saying that if the trial judge disagrees with the verdict he should grant a new trial.It is the opinion of this Court that this interpretation is supported neither by logic nor the reported cases.It is not ground for awarding a new trial that, if the trial judge had heard the case without a jury, he would have decided it differently.The applicable principle...