Duke v. St. Louis & S.F.R. Co.

• Decision Date: 20 July 1909
• Citation: 172 F. 684
• Parties: DUKE v. ST. LOUIS & S.F.R. CO.
• Court: U.S. District Court — Western District of Arkansas

172 F. 684

DUKE v. ST. LOUIS & S.F.R. CO.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

July 20, 1909

O. L Miles, for plaintiff.

B. R Davidson, for defendant.

ROGERS District Judge.

This is a motion for a new trial. I shall notice only two grounds of the motion, to the effect that the verdict was not warranted by the evidence, was excessive, and appeared to have been given under prejudice and passion. It is necessary to refer to the practice in the federal courts in relation to motions for new trial before addressing myself to that question.

In Fishburn v. Chicago, Milwaukee & St. Paul Ry., 137 U.S 61, 62, 11 Sup.Ct. 8, 34 L.Ed. 585, Chief Justice Fuller said:

'In regard to motions for new trial and bills of exceptions, courts of the United States are independent of any statute or practice prevailing in the courts of the state in which trial is had. ' Mo. Pac. Ry. Co. v. Chicago & Alton Ry. Co., 132 U.S. 191, 10 Sup.Ct. 65, 33 L.Ed. 309.

This seems to be as well settled as any principle of law can be. Indianapolis Railroad Company v. Horst, 93 U.S. 291, 23 L.Ed. 898; In re Chateaugay Iron Co., 128 U.S. 544, 9 Sup.Ct. 150, 32 L.Ed. 508; Van stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 12 Sup.Ct. 181, 35 L.Ed. 961. See cases cited in paragraph 1339, p. 2283, volume 2, Digest United States Supreme Court Reports by L.C.P. Co. In Indianapolis R. Co. v. Horst, 93 U.S. 301, 23 L.Ed. 898, Mr. Justice Swayne, in discussing an assignment of error that 'the motion for a new trial should have been granted in the court below,' said:

'In the courts of the United States such motions are addressed to their discretion. The decision, whatever it may be, cannot be reviewed here. This is a rule of law established by this court, and not a mere matter of proceeding or practice in the Circuit or District Courts. Henderson v. Moore, 5 Cranch, 11, 3 L.Ed. 22; Doswell v. De La Lanza, 20 How. 29, 15 L.Ed. 824; Schuchardt v. Allen, 1 Wall. 371, 17 L.Ed. 642. It is therefore not within the act of Congress of June 1, 1872, and cannot be affected by any state law upon the subject. Judgment affirmed.'

Of course, the discretion referred to is a legal, a judicial and not an arbitrary, discretion. See cases cited on page 2284 of the Digest last cited. See, also, Felton v. Spiro, 78 F. 576, 24 C.C.A. 321, decided by the Sixth Circuit Court of Appeals, opinion by Taft, Judge.

This motion for a new trial is therefore addressed to the sound discretion of the court. Naturally all courts are reluctant to grant motions for new trial, and for divers reasons will not grant them unless it is reasonably clear that prejudicial error has crept into the record, and they are always reluctant to do so when the court is convinced that the verdict is in favor of the right party. I felt at the conclusion of this trial that the plaintiff was entitled to recover. I am clear now on the record as then made that she was entitled to a verdict. Every effort was made by the court to shut out incompetent evidence, and I do not believe any vital error was committed against the defendant in that regard. The sole question, therefore, to discuss is whether the verdict was excessive. The serious importance of this question to the defendant appears when it is known that, if error has been committed by the jury, it can be corrected in no other way than by the trial court on a motion for new trial. In Railroad Co. v. Winter, Administrator, 143 U.S. 60, 12 Sup.Ct. 356, 36 L.Ed. 71, the Supreme Court of the United States said:

'Whether the verdict was excessive it is not our province to determine on this writ of error. The correction of that error, if there were any, lay with the court below upon a motion for a new trial, the granting or refusal of which is not assignable for error here. As stated by us in AEtna Life Ins. Co. v. Ward, 140 U.S. 76, 11 Sup.Ct. 720, 35 L.Ed. 371: 'It may be that, if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error.

In such a case we are confined to the consideration of exceptions, taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge. We have no concern with questions of fact or the weight to be given to the evidence which was properly admitted.' ' Southern Pac. Co. v. Cavin, 144 F. 348, 75 C.C.A. 350.

Nor can the trial court arbitrarily order a remittitur for reasons which will clearly appear by reading Kennon v. Gilmer, 131 U.S. 22, 9 Sup.Ct. 696, 33 L.Ed. 110. If a remittitur is entered, it must be at the election of the plaintiff. It may, however, be at the suggestion of the court that, if not done, a new trial will be granted. Some courts hold that in personal injury cases where the damages are excessive the new trial should always be granted.

We now come to consider the verdict. The sum assessed by the jury in this case was $17,545. This sum, if invested at 10 per cent., which is what money was shown to be worth in the neighborhood where plaintiff resides, would yield $1,754.50 per annum. If invested at 8 per cent., it would yield $1,403.60. If invested at 6 per cent., it would yield $1,052.70. If invested at 4 per cent., it would yield $701.80, and, in either event, at the end of the full life expectancy of the deceased-- i.e., 36 years-- the principal remain untouched. Let us examine the proof. The deceased was 29 years of age. His life expectancy was about 36 years. He was married in 1900, at about the age of 20, and killed in a derailment while a brakeman on one of defendant's trains on the 28th of March, 1909. In the nine years of his married life (which embraced all of his adult years), while apparently industrious, he had spent several thousand dollars of his wife's estate, and all he had made himself, and his estate at his death amounted to about $250. Before his marriage he had taught a country school, and had nothing when he married. After his marriage he had driven a team used in hauling (presumably his own). For a time he had stacked lumber at a sawmill, had farmed one year, and then began braking on a railroad. What his earnings were prior to going into the service of the defendant company, 33 months before his death, are not shown. During the 33 months of his service as brakeman in defendant's service his total gross earnings were $2,139.92; the average monthly gross earnings $64.84. After deducting certain sums held by the defendant company to pay for meals, hospital expenses, dues, etc., upon his order, the actual amount he drew from the company in cash was $1,740.42, or a monthly average of $52.74. This estimate does not cover the earnings during the month he was killed, which amounted to $76.26, covering 26 days' service in that month. Out of the $1,740.42 actually drawn should be deducted at least for his actual personal expenses, such as clothing, food when not on the road, doctor's bills, medicines, and other incidental expenses. If one-third of the $1,740 be treated as going to his personal expenses, then he could not have appropriated in excess of $1,111.28 to his family during the 33 months next prior to his death, or an average of about $34 a month, or $408 per annum. Three per cent. on the verdict would yield an annuity of $526.35, and leave at the end of the life expectancy the entire amount of the verdict untouched. But it is said that, in addition to such sums as the evidence shows plaintiff appropriated to the support of his family, his children are entitled to recover for the loss of care, attention, instruction, and training resulting from the father's death, and the jury were so instructed.

That seems to be the settled law in some of the states, including Arkansas. But I am driven to confess, upon a re-examination of this case, that I am unable to find any federal case which recognizes the doctrine to that extent, and it may be that the instruction is erroneous. I have, however, found two cases in the federal courts bearing upon the subject. In Spiro v. Felton (C.C.) 73 F. 91, Clark, District Judge, held under a statute of Tennessee for an injury causing death, the recovery under the Tennessee statute being for the benefit of the widow and next of kin of the deceased, evidence of the number and ages of the children of the deceased is competent; and in Baltimore & Potomac R. Co. v. Mackey, 157 U.S. 72, 15 Sup.Ct. 491, 39 L.Ed. 624, under an act of Congress passed February 17, 1885 (chapter 126, 23 Stat. 307), under an act similar to the Lord Campbell act, it was held that:

'It is not error to charge a jury that in estimating damages they may take into consideration the age of the deceased, his health and his strength, his capacity to earn money as disclosed by the evidence, his family and who they are and what they consist of, and from all the facts and all the circumstances make up their minds how much the family would probably lose by his death.'

And in that case the court say:

'The injury shown to a family, consisting of a widow and helpless young children, who depended for support entirely upon the labor of her husband and father, whose death was caused by the wrongful act of others, is much greater than would be done to any next of kin able to maintain themselves and who have never depended, and had no right to depend, upon the labor or exertions of the deceased for their maintenance.'

An examination of the statute under which that decision is made will disclose that, though it is couched in different language, the substance is practically the same as the employer's liability act (Act April 22, 1908, c. 149, 35 Stat. 65) under which the case at bar was...