Country Mutual Insurance Company v. Eastman

• Decision Date: 15 February 1966
• Docket Number: No. 21935.,21935.
• Citation: 356 F.2d 880
• Parties: COUNTRY MUTUAL INSURANCE COMPANY, Appellant, v. Fred E. EASTMAN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.2d 880 (1966)

COUNTRY MUTUAL INSURANCE COMPANY, Appellant, v. Fred E. EASTMAN, Appellee.

No. 21935.

United States Court of Appeals Fifth Circuit.

February 15, 1966.

A. G. Seale, Louis G. Baine, Jr., of Seale, Hayes, Smith & Baine, Baton Rouge, La., for Country Mutual Ins. Co.

Joseph A. Sims, Robert J. Mack, of Sims & Mack, Hammond, La., for Fred Eastman.

Before WHITAKER, Senior Judge,^* and WISDOM and THORNBERRY, Circuit Judges.

PER CURIAM:

Defendant-appellant's insured, one Raymond E. Newell, while proceeding north on U. S. Highway 51 approaching Amite, Louisiana, in his truck and trailer, on February 23, 1961, at about 2:15 p. m., overtook and struck from the rear a pickup truck driven by plaintiff-appellee. Appellee filed this suit against appellant for bodily injuries and property damage allegedly sustained as a result thereof.

At the conclusion of the trial before the New Orleans Division of the United States District Court for the Eastern District of Louisiana, the jury returned a verdict for appellee in the amount of $73,926, and judgment was entered for this amount. The court denied appellant's motion for judgment notwithstanding the verdict. Thereupon, appellant filed a motion for a new trial or, in the alternative, for a remittitur. The motion for new trial was denied conditioned upon the appellee's entering a remittitur reducing the judgment to $45,000. Appellee entered such a remittitur and an amended judgment was entered in the amount of $45,000.

We are of the opinion that the testimony amply supports the verdict of the jury on the question of liability, and we are also of the opinion that the argument of appellee's counsel before the jury on rebuttal does not require reversal on the ground that it was an improper appeal to the sympathy of the jury.

Appellant's chief reliance in oral argument was the use by counsel for appellee of a mathematical formula to compute the amount of damages to be awarded for personal injuries, including pain and suffering. Plaintiff-appellee's counsel argued to the jury that they might arrive at what was fair compensation by assuming that he was entitled to $70 per week for the injury to his neck, including pain and suffering, and multiplying this by appellee's life expectancy, which he assumed was 20 years, based upon his asserted lifespan of his parents. The jury adopted this formula.

The courts have been in disagreement over the propriety of such an argument, but in Johnson v. Colglazier, 348 F.2d 420 (5th Cir. 1965), this court held that it was impermissible, and that the failure of the trial judge to rebuke counsel for making such an argument and to instruct the jury to disregard it was reversible error. Judge Brown dissented in an extensive opinion.

In the case at bar, appellee's counsel, in his opening statement, suggested to the jury the use of this method of computing the damages to be awarded for the injury to appellee's neck. Appellant's counsel made no objection, but the court interjected, "I think that is going a little bit far." However, he did not instruct the jury to disregard the suggestion.

In his rebuttal argument to the jury, appellee's counsel reiterated his suggested method of computation of damages. Appellant's counsel then objected to the argument on this ground: "Counsel stipulated he was not asking for loss of earnings. He is now asking for wages." Appellee's counsel replied that he was not "*...